Unassociated Document
Pillsbury Winthrop Shaw
Pittman LLP
2300 N Street, NW | Washington, DC
20037-1122 | tel 202.663.8000 | fax 202.663.8007
Qixiang Sun
tel 202.663.8349
qixiang.sun@pillsburylaw.com
January 21, 2011
Division of Corporation
Finance
U.S. Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Attn: Ms. Stacie
Gorman
|
Re:
|
China Oumei Real Estate
Inc. Amendment No. 7 to Registration
Statement on Form S-1 Filed December 13, 2010 (File No.
333-166658)
|
Dear Ms. Gorman:
Per our telephone
conversation on January 20, 2011, on behalf of China Oumei Real Estate Inc. (the
“Company”), we are submitting the Company’s proposed changes to the risk factor
relating its acquisition of Chinese subsidiaries and the relevant disclosure of
Chinese government regulations in Amendment No. 7 to Registration Statement on
Form S-1 (the “Registration Statement”). For your convenience, I included below a
redline version of the draft to show these changes.
1. Risk Factor relating to the
Company’s acquisition of Oumei (page 15 of the Registration Statement)
Our business and financial performance
may be materially adversely affected if the PRC regulatory authorities determine
that our acquisition of Oumei constitutes a Round-trip Investment without MOFCOM
approval.
On August 8, 2006, six PRC regulatory
agencies promulgated the Regulation on Mergers and Acquisitions of Domestic
Companies by Foreign Investors which were further amended by PRC Ministry of
Commerce, or MOFCOM, on June 22, 2009, or the 2006 M&A
Rule. Among other things, the 2006 M&A Rule regulates “Round-trip
Investments,” defined as having taken place when a PRC business that is owned by
PRC individual(s) is sold to a non-PRC entity that is established or controlled,
directly or indirectly, by those same PRC individual(s). See “Business – PRC
Government Regulations – Mergers and Acquisitions” for a detailed discussion of
the 2006 M&A Rule.
Leewell
acquired Oumei was
acquired in 2007 from Mr. Weiqing Zhang and Ms.
Xiaoyan Cheng. At the time
of the acquisition, by Leewell,
which was then owned and controlled by
Mr. Li Zhou, a citizen
of the Commonwealth of Australia, who
was acting. Mr. Zhou
acted
as a nominee
forof Mr. Weiqing Zhang and Ms.
Xiaoyan Cheng., the
daughter of Mr. Antoine
Cheng. Mr. Cheng was a PRC citizen at the time but became a Philippine
citizen
after the acquisition. The acquisition
was approved by the local counterpart of the
MOFCOM. Mr. Zhou also founded Longhai Holdings, a BVI company. In
September
2009, ownership of Longhai Holdings was transferred to Mr. Cheng (now
a citizen
of the Philippines), who
became our Chairman. After Mr. Cheng acquired ownership
of Longhai Holdings, Longhai Holdings acquired all of Mr. Zhou’s equity
interest
in Leewell. The PRC regulatory authorities could may take the positionview that this
transaction therefore constituted a “Round-Trip Investment” requiring the
prior these
transactions
required the approval of the central
office of MOFCOM in Beijing because
Mr. Zhou
was acting as a nominee for Mr. Weiqing Zhang and Ms. Xiaoyan Cheng,
two PRC
citizens, and avoiding compliance with the 2006 M&A Rule through the use
of
a nominee arrangement, trust or similar means, which we is
prohibited. We did not seek
or obtain that
approval because we believed that Mr. Zhou’s role in the transaction
was only transient and that the ultimate substance of the transaction was
the
acquisition of Oumei by Mr. Cheng, our Chairman, who is no longer a PRC
citizen.
In other words, the acquisition of Oumei and the Share Exchange Agreement
were part
of an overall series of arrangements that were designed to result in Mr.
Cheng
becoming a majority owner and effective controlling party of a foreign entity
that
acquired ownership of our Chinese subsidiaries. If the PRC regulatory authorities take this
position, they could the view
that we should have obtained the approval of the central
office of MOFCOM in Beijing, we
cannot assure you that we will be able to obtain
that approval after the fact and we believe that it would be very difficult to
do so. It is
possible that if that approval is required and has not been granted eventually,
PRC
regulatory authorities could invalidate our acquisition and ownership
of our Chinese subsidiaries. If this were to happen, we
would replace our ownership structure of Oumei with a series of contractual arrangements
which would give us control over, and the economic benefit of, the operations of our
Chinese subsidiaries. These arrangements are described more fully under “Business – PRC Government
Regulations – Merger and Acquisition.”
Additionally, the PRC regulatory
authorities may take the view that these transactions require
the prior approval of the China
Securities Regulatory Commission, or CSRC, before MOFCOM approval is obtained. If we
cannot obtain MOFCOM or CSRC approval if required by the PRC regulatory
authorities to do so, the PRC regulatory authorities may impose fines and penalties on our
operations in the PRC, limit our operating privileges in the PRC, delay or restrict the repatriation
of the proceeds from this offering into the PRC, restrict or prohibit payment or remittance of
dividends to us or take other actions that could have a material adverse effect on our business,
financial condition, results of operations, reputation and prospects, as well as the trading
price of our shares.
2. Business –
PRC Government Regulations – Mergers and Acquisitions (page 71 of the
Registration
Statement)
Mergers and
Acquisitions
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As we stated under "Risk factors—Risks
Related to Doing Business in China—Our business and financial performance may be
materially adversely affected if the PRC regulatory authorities determine that our
acquisition of Oumei constitutes a Round-trip Investment without MOFCOM approval," Leewell
acquired Oumei was
acquired in 2007 from Mr.
Weiqing
Zhang and Ms. Xiaoyan Cheng. Prior to the acquisition,by Leewell,
which was then owned and controlled by Mr. Li Zhou, an
Australian citizen. Mr. Zhou acted as a nominee forof Mr. Weiqing Zhang and Ms. Xiaoyan Cheng,
the daughter of Mr. Antoine Cheng. Mr. Cheng was a PRC citizen at
the time, but has since become a Philippine
citizen. The acquisition was approved by the
local counterpart of the MOFCOM. Mr. Zhou also founded Longhai Holdings, a BVI company.
In September 2009, ownership of Longhai Holdings was transferred to Mr. Cheng.
After Mr. Cheng acquired ownership of Longhai Holdings, Longhai Holdings acquired all
of Mr. Zhou’s equity interest in Leewell. We did not seek or obtain the approval from the
central office of MOFCOM in Beijing because we believed that Mr. Zhou’s role in the
transaction was only transient and that the ultimate substance of the transaction was the
acquisition of Oumei by Mr. Cheng, our Chairman, who is no longer a PRC citizen. As a foreign
citizen, Mr. Cheng’s ultimate ownership of Oumei is not prohibited by the 2006 M&A Rule.
Although Mr. Zhou did not deliberately avoid compliance with the 2006 M&A Rule
and believed in good faith that, given the transient nature of his ownership interest, no
legal issue arose under the 2006 M&A Rule, the PRC regulatory authorities may still take
the view that these transactions required the approval of the central office of MOFCOM in
Beijing because Mr. Zhou was acting as a
nominee for Mr. Zhang and Ms. Cheng, two PRC citizens,
and avoidedavoiding compliance with the 2006
M&A Rule (i.e., failure to obtain
the approval of the central office of MOFCOM in Beijing as opposed to MOFCOM’s local office)
through the use of a nominee arrangement, trust or similar means, which is prohibited. In
other words, the PRC regulatory authorities may believe that, notwithstanding the
transient nature of Mr. Zhou’s ownership, these transactions and the reverse
acquisition of LeewellShare
Exchange Agreement are part of an overall
series of arrangements which constitute
a Round-trip Investment and as a result, these transactions may be deemed invalid by
the PRC regulatory authorities.
If this were to take place, we would
replace our ownership of Oumei with a series of contractual arrangements, which we refer
to as the Contractual Arrangements. On January
21, 2010, Mr.
Weiqing Zhang and Ms. Xiaoyan Cheng, or the Oumei Shareholders, entered into
an agreement
with Leewell that requires them to enter into the Contractual Arrangements if
the PRC
regulatory authorities invalidate the acquisition of Oumei by
Leewell. The Contractual Arrangements would be
implemented by first transferring ownership of Oumei from Leewell to the prior
shareholders of Oumei, or the Oumei Shareholders, if that had
not already occurred by regulatory
action. We would then establish a new wholly-owned subsidiary in China, referred to as a wholly foreign-owned
enterprise, or the WFOE. The WFOE would enter into a series of
agreements with Oumei and the Oumei Shareholders, including an exclusive management,
technical and consulting services agreement, an equity pledge agreement, an equity purchase
option agreement and a power of attorney. Taken together, these agreements would give
the WFOE complete control over and all of all the economic benefits of the operations of
Oumei and its subsidiaries,
or
collectively, the Operating
Entities. These agreements are described in more
detail in the following paragraphs.
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January 21, 2011
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Under the exclusive management,
technical and consulting services agreement, or the Service Agreement, our WFOE would act as the
exclusive provider of a comprehensive set of services to Oumei
and its subsidiaries, or collectively, the Operating Entities, in exchange for the payment by the Operating
Entities of service fees in an amount equal to up to the entire pre-tax profits of the Operating
Entities. Oumei would agree to accept the corporate policy advice and guidance provided by
the WFOE on Oumei’s daily operations, financial management and employment
issues.
Under the equity pledge agreement, the
Oumei Shareholders would pledge all of their equity interests in Oumei to the WFOE as
collateral security for the WFOE’s collection of the consulting and service fees under the
Service Agreement. During the term of the equity pledge agreement, the Oumei Shareholders
would agree that without the WFOE’s prior written consent, they would not transfer
any equity interest, create or permit to exist any pledge that may damage the WFOE’s rights
or interests in the pledged equity interests, or cause Oumei’s meeting of shareholders stockholders or board of directors to pass any
resolutions about the sale, transfer,
pledge or other disposal of the lawful right to derive income from any equity interest in Oumei
or about the permission of the creation of any other security interests thereon. The term of
this agreement would be the same as the term of the Service Agreement. If the term of the
Service Agreement is renewed, the term of this agreement will extend
accordingly.
Under the equity purchase option
agreement, the Oumei Shareholders would irrevocably, unconditionally and exclusively grant
the WFOE a purchase option whereby, to the extent permitted under Chinese law, the WFOE
would have the right to request the Oumei Shareholders to transfer to it or its
designated entity or person, the total equity interests held by them in Oumei. The WFOE would have
sole discretion to decide the specific time, method and number of the exercise of the
purchase option. At the time of each exercise of the purchase option by the WFOE, the
total consideration to be paid to the Oumei
Shareholdersshareholders
of Oumei would be the
book
value of Oumei.lowest
price permitted
under PRC laws. The equity purchase option agreement
would have the same term as the Service Agreement. In
connection with the equity purchase option agreement, each Oumei Shareholder would execute a
power of attorney, which would grant the WFOE a power to exercise on his or her behalf
all voting rights as a shareholder at the shareholders’ meetings of Oumei that have been given
to him or her by law and by the Articles of Association of
Oumei.
Through these agreements, we would
receive all or substantially all of the pre-tax profits of the Operating Entities and have
substantial if not complete control over their daily operations
and financial affairs, election of
senior executives and all matters requiring shareholder approval. Furthermore, we believe the
Contractual Arrangements would satisfy the requirements of Section 210.3A-02 of
Regulation S-X for consolidation of the Operating Entities’ financial results with ours
under U.S. GAAP.
Further to
our conversation, we are enclosing a copy of the executed agreement referred to
in item
2.
We appreciate that you are willing to
take the time to review the forgoing responses before the Company files a new amendment to the
Registration Statement on EDGAR to reflect
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January 21, 2011
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5
these
changes. Please feel free to contact me at 202.663.8349 if you would like to
discuss the foregoing
responses or any other matters.
Sincerely,
/s/ Qixiang Sun
Qixiang Sun
Associate
Leewell
Investment Group Limited
No.182
Haier Road, Qingdao 266000
People’s
Republic of China
No. 182
Haier Road, Qingdao 266000
People’s
Republic of China
Re: Agreement
to Enter into Contractual Arrangements
We refer
to the separate Share Purchase Agreements, dated September 5, 2007, between you
and us, pursuant to which we acquired all of your shares of Qingdao Oumei Real
Estate Development Co., Ltd. (“Oumei”) for an
aggregate purchase price of RMB 97,010,000 (the “Acquisition”).
As you
are aware, at the time of the Acquisition, we were owned and controlled by Mr.
Li Zhou, an Australian citizen, who acted as a nominee for you. Mr. Zhou also
founded Longhai Holdings Company Limited (“Longhai Holdings”).
In September 2009, ownership of Longhai Holdings was transferred to Mr. Antoine
Cheng, who was a PRC citizen at the time of the Acquisition, but became a
Philippine citizen prior to his acquisition of Longhai Holdings. After Mr. Cheng
acquired ownership of Longhai Holdings, Longhai Holdings acquired all of our
equity interest owned by Mr. Zhou.
The
Regulation on Mergers and Acquisitions of Domestic Companies by Foreign
Investors (the “2006
M&A Rule”), promulgated by six PRC regularity authorities on August
8, 2006 and further amended by PRC Ministry of Commerce (“MOFCOM”) on June 22,
2009, among other things regulates “Round-trip Investments,” defined as having
taken place when a PRC business that is owned by PRC individual(s) is sold to a
non-PRC entity that is established or controlled, directly or indirectly, by
those same PRC individual(s).
The PRC
authorities could take the position that the transactions described above
constituted a “Round-Trip Investment” requiring the prior approval of the
central office of MOFCOM in Beijing, which we did not obtain. Although the
Acquisition was approved by the local counterpart of MOFCOM, we did not seek or
obtain the approval of the transactions from the central office of MOFCOM in
Beijing because we believed that Mr. Zhou’s role in these transactions was only
transient and that the ultimate substance of these transactions was the
acquisition of Oumei by Mr. Cheng, who is no longer a PRC citizen. As a foreign
citizen, Mr. Cheng’s ultimate ownership of Oumei is not prohibited by the 2006
M&A Rule. However, the PRC regulatory authorities may still take the view
that these transactions required the approval of the central office of MOFCOM in
Beijing because Mr. Zhou was acting as a nominee for you, two PRC citizens, and
avoided compliance with the 2006 M&A Rule through the use of a nominee
arrangement, trust or similar means, which is prohibited. As a result, these
transactions may be deemed invalid by the PRC regulatory
authorities.
If the
PRC regulatory authorities invalidate the Acquisition, we propose to take the
following actions: first, we would unwind the Acquisition by transferring
ownership of Oumei from us to you, if that has not already occurred by
regulatory action; second, we would establish a new wholly-owned subsidiary in
China, referred to as a wholly foreign-owned enterprise (the “WFOE”); and third, we would have the
WFOE enter into a series of contractual arrangements (the “Contractual
Arrangements”) with you, which would give us control over, and the
economic benefit of, the operations of Oumei and its subsidiaries. The
Contractual Arrangements would include an exclusive management, technical and
consulting services agreement, an equity pledge agreement, an equity purchase
option agreement and a power of attorney, all on terms satisfactory to
us.
Please
confirm by executing a copy of this letter in the space provided below and
returning it to us that, in the event that the PRC regulatory authorities
invalidate the Acquisition, you hereby agree to the above proposal and that you
will enter into the Contractual Arrangements in form and substance satisfactory
to us.
LEEWELL
INVESTMENT GROUP LIMITED
By: /s/ Antoine
Cheng
Agreed to
and Accepted as of this 21st day of
January, 2011:
/s/
Weiqing
Zhang
Weiqing
Zhang
/s/
Xiaoyan
Cheng
Xiaoyan
Cheng