China: SAIC-Proposed Debt/Equity Swap Registration Measures - A New Way For Foreign Creditors To Acquire Equities In PRC Companies

Last Updated: 26 August 2011
Article by Hannah C. L. Ha

Originally published August 24, 2011

Keywords: SAIC, proposed debt, equity swap, registration, foreign creditors, PRC companies,

On 18 August 2011, the PRC State Administration for Industry and Commerce (SAIC) released a draft (for public consultation)1 of the Administrative Measures on Registration of Debt for Equity Swaps (the Draft Measures). The Draft Measures aim to regulate and administer registrations of equity interests/shares held by foreign and domestic creditors in limited liability companies (LLCs) and companies limited by shares (CLSs) incorporated in the PRC in exchange for cancellation of debts owed by such LLCs and CLSs to the creditors.

Background

Financial restructuring of state-owned enterprises (SOEs) by way of debt for equity swaps started as early as the late 1990s and a number of financial assets management companies were established to take over non-performing loans granted by PRC banks to SOEs and then convert their creditors' rights into equity holdings in the SOEs. Therefore, the Draft Measures are long overdue as there has been a pressing need for rules governing nation-wide registration of debt for equity swaps. While debt for equity swap registration rules have already been issued by various local governments, the scope of registration under those local rules is limited as they only permit registration of such swaps between domestic creditors and debtors, thus excluding foreign creditors and foreign-invested enterprises (FIEs). In this regard, the Draft Measures achieve breakthrough in two important respects by allowing:

  • foreign creditors to register debt for equity swaps ; and
  • creditors (both foreign and domestic) to register their holdings of equity interests/shares in FIEs converted from indebtedness owed by such FIEs,

both subject to the relevant legal requirements and approvals.

Application and Key Requirements

Types of Debts

Under the Draft Measures, a foreign or domestic creditor may register with the SAIC or its local counterpart a debt for equity swap:

  • arising from an indebtedness under a contract between the creditor and an LLC or CLS, including a foreign-invested enterprise (FIE), unless such swap is prohibited under PRC laws, regulations and articles of association of the LLC or CLS;
  • upheld by a court judgment; or
  • included in a re-organisation plan as approved, or under a settlement agreement as upheld, by the People's Court while an LLC or CLS in bankruptcy is under re-organisation and settlement with its creditors.

Approval Requirements

Some debt for equity swaps are subject to government approval which will probably include the following circumstances:

  • the debtor is an SOE;
  • the debtor is an FIE or operates in an industry where foreign investment is restricted or prohibited; or
  • a foreign creditor converts its loans registered as foreign debts with the State Administration of Foreign Exchange into equity holdings in a debtor.

Valuation

Creditor's rights to be converted into equity interests/shares must be appraised by a qualified asset appraiser and the value of the capital contribution in the form of such creditor's rights may not exceed the appraised value.

Non-cash Capital Contribution

Conversion of creditor's rights into equity is considered a form of non-cash capital contribution and therefore the aggregate sum of the value of capital contribution in such form and the value of other forms of non-cash capital contribution may not exceed 70% of the total amount of the registered capital, as specified in Article 27 of the PRC Company Law.

Capital Verification

The capital contribution by way of a debt for equity swap must be verified by an institution qualified for capital verification and supported by documentary evidence specified in the Draft Measures.

Supporting Documents

An application for registration of a debt for equity swap must be accompanied by required documents, including relevant debt for equity swap agreements, court judgments, re-organisation plans, debt settlement agreements and/or shareholders/general meeting resolutions approving the swap transactions.

Conclusion

The Draft Measures, if issued substantially in the current version, will formalise and unify, at the national level, the registration of debt for equity swaps as another form of transferable and appraisable non-cash capital contribution as permitted in Article 27 of the PRC Company Law. These Measures will pave a new way for foreign and domestic creditors to acquire equities in PRC domestic companies on the one hand, and will enable domestic borrowers to use their equity interests/shares to serve their debts on the other. While the issuance of these Measures is belated, it is a right step and therefore better than never.

 Footnote

1. The deadline for public comments and feedback on the draft is 2 September 2011.

Learn more about our PRC offices, Asset Finance, Capital Markets, Company Secretarial, Private Investment Funds, Financial Services Regulatory & Enforcement and Real Estate practices.

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2011. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

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