Merger and listing of enterprises is a hot issue since China's economic system reform, and it is also an inevitable requirement for further developing China's socialist market economy, promoting industrial restructuring, and cultivating qualified market players with world competitiveness. China enterprises, in particular, are facing the market impact after China's entry into WTO, and it is urgent to expand their scale and market share through mergers and acquisitions, so as to be in an invincible position after China's entry into WTO. At the same time, with the development and maturity of China's capital market, in addition to the acquisition wars caused by "backdoor listing" and "shell listing" of listed companies, mergers and acquisitions among other non-listed companies have gradually increased, such as snapping up gas stations and buying shares in online companies, which have become hot spots since last year. All these indicate that the M&A activities between enterprises have risen from the government administrative order in the early 1997 s to the level of independent demand within enterprises. Due to the complexity of mergers and acquisitions of listed companies, there are as many as 16 provisions on the acquisition of listed companies in the Securities Law, so I won't repeat them here. At present, the author only discusses some problems involved in mergers and acquisitions between unlisted enterprises as a lawyer.
First, the way of enterprise mergers and acquisitions
At present, China's enterprise registration is mainly divided into two categories. First, the enterprises registered according to the Regulations on the Registration of Enterprise Legal Persons are mainly state-owned enterprises, collective enterprises, joint ventures and individual industrial and commercial households; Second, modern corporate enterprises registered according to the company registration regulations, mainly joint-stock companies and limited liability companies, but also a small number of sole proprietorship enterprises, partnerships and joint-stock cooperative enterprises. Therefore, the ways of M&A vary according to the nature of these merged enterprises. For enterprises registered in accordance with the Regulations on the Administration of Enterprise Legal Person Registration, enterprise acquisition is actually the acquisition of assets, and enterprise merger refers to the act of an enterprise purchasing the property rights of other enterprises, which makes other enterprises lose their legal person status or change their legal entity. For enterprises registered in accordance with the company system, enterprise acquisition is equity acquisition, and enterprise merger is the way of absorption and merger stipulated in China's company law. Article 184 of the company law stipulates that "the company absorbs other companies for merger, and the absorbed company is dissolved." Therefore, in the case that the acquired enterprise is a corporate enterprise, the purpose of the acquirer is to obtain the control right of the acquired company. Therefore, after the acquisition is successful, whether the acquired enterprise is dissolved or cancelled depends on the business strategy of the acquirer, and it can also maintain its legal person status and let the company exist as a subsidiary of the acquirer. However, after the merger is successful, the merged enterprise must be dissolved and cancelled.
According to 1989 Interim Measures for Enterprise Merger promulgated by the State Commission for Economic Restructuring and other departments, there are four main forms of enterprise merger: first, the acquirer accepts the assets of the acquired party on the condition that the assets and debts are equal; The second is purchase, that is, the acquirer contributes to purchase the assets of the acquired enterprise; The third is to absorb shares, that is, the owner of the merged enterprise will invest the net assets of the merged enterprise as shares and become the shareholders of the merged enterprise; The fourth type is holding type, that is, an enterprise realizes holding and merger by purchasing the equity of other enterprises. In the practice of enterprise merger and acquisition, new merger and acquisition forms such as stock exchange, asset replacement and creditor's rights payment have appeared in recent years. These new forms are complicated to operate, involving many issues such as the benchmark date of securities trading and the pricing of intangible assets. Therefore, choosing experienced intermediaries to participate is conducive to the smooth development of mergers and acquisitions. What needs to be mentioned in particular is that, according to the relevant regulations, in the event of major asset (equity) replacement, acquisition or sale, increase or decrease of capital, etc., an enterprise that intends to issue shares and go public in the future shall employ an intermediary agency with securities and futures qualifications to undertake capital verification, asset evaluation, audit and other businesses. If an intermediary agency that does not have the above-mentioned securities business qualifications is hired to undertake the above-mentioned business, it shall hire another intermediary agency that has the securities and futures business qualifications to review and issue a professional report before applying for listing. Therefore, every time an enterprise conducts M&A activities, it must have the foresight of "keeping an eye on the scenery".
Second, about the subject of enterprise merger and acquisition contract.
The paid transfer of state-owned shares of corporate enterprises and the paid transfer of all or part of the property rights of state-owned enterprises are all transfer of shares, and the transfer subject can only be managers (or competent units) or shareholders, and the enterprise itself cannot become the transfer subject of mergers and acquisitions. The paid transfer of important assets of state-owned enterprises and administrative institutions is not the transfer of property rights, but the transfer of assets. The transfer subject is not managers and shareholders, but enterprises and administrative institutions themselves. The Regulations on the Transformation of Operating Mechanism of Industrial Enterprises Owned by the Whole People stipulates that enterprises have the right to dispose of assets, but the mortgage or paid transfer of key equipment, complete sets of equipment and important buildings must be approved by the competent government departments. The major assets of an enterprise are not directly represented as state-owned assets, but their disposal has great influence on the rights and interests of state owners, so it is regarded as a form of state-owned assets disposal; Non-major assets disposal belongs to legal person behavior, and generally does not belong to the category of state-owned assets disposal. Then, specifically, if the acquired enterprise is a state-owned or collective enterprise in the enterprise acquisition and merger activities, and it is also an overall property right acquisition, then the subject of the acquisition contract should be the competent unit of the enterprise. If the acquisition only involves the assets of the acquired enterprise, the contracting entity may be the enterprise itself, but the transfer and acquisition of assets must be approved in writing by the competent authority. For enterprises registered in the company system, the contract subject of equity transfer should be the investment shareholder registered in the industrial and commercial department.
In practice, the investors reflected in the industrial and commercial registration materials are often inconsistent with the actual investors of enterprises. The author has done such a business, and the subject of property rights is controversial. In the early 1990s, a high-tech enterprise in this city, which mainly focuses on software development, was established with a loan of 500,000 yuan from the current legal representative of the company. However, for fear of policy changes and exclusion of private enterprises, they are affiliated to a national enterprise and registered as a collective enterprise invested by the national enterprise. After years of painstaking efforts, the net assets of the enterprise now reach more than 20 million, and it is planned to reorganize and transfer part of the equity to venture capital companies. However, when inquiring about the industry and commerce, it was found that the original affiliated enterprise had long gone out of business, and the superior unit of the enterprise did not know that there was such a profitable "grandson" enterprise under its subordinates, so the legal relationship of property rights was particularly complicated. Of course, in the end, after the lawyer issued a legal opinion on the definition of property rights and the "thorough observation" of the state-owned assets department, the property rights of the enterprise were finally defined as the personal ownership of the legal representative, and the legitimate rights and interests were effectively protected. Accordingly, the author needs to explain that in the process of enterprise merger and acquisition, if the subject of enterprise property rights is unknown, first of all, according to the principle of "who invests, who claims rights", we should ask the relevant government departments to define property rights, and never "make mistakes" and sign contracts with non-real investors as the subject of contracts, otherwise there will still be many problems in the future. The longer the time, the less clear the legal relationship will be.
In addition, the merger and acquisition of enterprises must follow some procedural norms. Article 5 of the Measures for the Administration of Property Rights Transactions in Shanghai stipulates that before making a transfer decision, the opinions of the workers' congress and the trade union of the transferring enterprise shall be listened to. The transfer of collectively-owned enterprises in cities and towns must be passed and resolved by the workers' congress of the transferred enterprise. At the same time, according to the "Measures for the Administration of State-owned Assets Appraisal" and its detailed rules for implementation, the transfer, auction, acquisition and merger of assets by units with state-owned assets must be evaluated and confirmed. The relevant regulations of Shanghai also make it clear that the transfer price of state-owned property rights should be based on the evaluation value confirmed by the state-owned assets department, and the transfer price below 90% should be approved by the state-owned assets department. Similarly, if the transfer price of collective property rights is lower than 90% of the assets appraisal value of intermediary institutions, it should also be recognized by the owners of collective property rights.
Three, on the issue of land use rights in enterprise mergers and acquisitions
Whether it is asset acquisition or enterprise merger, the merger and acquisition activities of enterprises will involve land issues. Objectively, due to the complexity of China's land laws and regulations and the frequent adjustment of policies and regulations, the acquisition of land use rights is divided into state-owned allocation, transfer and lease. If we buy rural collective enterprises, it also involves rural collective land, so land disposal often becomes one of the most difficult problems in enterprise mergers and acquisitions.
According to Articles 23 and 24 of the Provisional Regulations on Assignment and Transfer of Urban State-owned Land Use Rights, when the land use right is transferred, the ownership of buildings and other attachments on the ground will be transferred. When the land user transfers the ownership of buildings and other attachments on the ground, the land use right within the scope of its use is transferred accordingly. At the same time, the law also stipulates that only the land use right can be transferred. Therefore, for the acquisition of assets in the enterprise merger and acquisition activities involving real estate such as houses and buildings, it is generally necessary to go through the procedures of transferring the land use right involved in the acquisition of assets and pay the transfer fee. According to Article 6 of the Interim Provisions on the Administration of Allocated Land Use Rights in the Reform of State-owned Enterprises promulgated by the State Land Bureau 1998, "If a state-owned enterprise goes bankrupt or sells, the land use rights originally allocated by the enterprise shall be disposed of by allocation." However, there are three ways in M&A activities: transferring land use right, retaining state-owned allocation and leasing state-owned land. According to Article 5 of the Interim Provisions on the Administration of Land Use Rights Allocated by State-owned Enterprises Reform, "If non-state-owned enterprises merge with state-owned enterprises, they shall be disposed of by transfer or lease." Article 8 stipulates that "state-owned enterprises are merged with state-owned enterprises or non-state-owned enterprises, and enterprises after merger, merger or merger of state-owned enterprises are state-owned enterprises;" In the merger and reorganization of state-owned enterprises, the merged state-owned enterprises or one party in the merger of state-owned enterprises belong to "enterprises on the verge of bankruptcy", and the approved land use can be disposed by way of reserved allocation, but the period of reserved allocation of land shall not exceed 5 years.
It should be pointed out that at the beginning of this year, the Ministry of Land and Resources issued the Notice on Reforming the Confirmation of Land Appraisal Results and the Examination and Approval Methods for Land Asset Disposal, which made some new provisions on the disposal of land use rights, further clarifying that in order to support and promote enterprise reform, the allocated land originally used by enterprises can continue to be used by allocation as long as the land use is not changed before the restructuring, and as long as the use meets the legal scope of allocated land after the restructuring, and the price of allocated land use rights can be evaluated according to the average acquisition and development cost of allocated land when the enterprise is restructured. Therefore, for mergers and acquisitions between enterprises, the acquired or merged enterprises can still use the land according to the above provisions if they are reorganized after equity acquisition or enterprise merger.
Four, on the issue of mergers and acquisitions involving foreign capital
The merger and acquisition of foreign-funded enterprises is mainly manifested in two aspects: first, the merger and acquisition of foreign-funded enterprises by domestic capital; Second, foreign direct investment is carried out through mergers and acquisitions of domestic enterprises.
For the merger and acquisition of foreign-funded enterprises by domestic-funded enterprises, the tax problem is relatively common, because according to the relevant laws and regulations on foreign investment in China, as a foreign-invested enterprise, the proportion of foreign investment must be above 25%. At the same time, Article 5 of the Income Tax Law for Chinese-foreign Joint Ventures and the Income Tax Law for Foreign Enterprises stipulates that if a company is dissolved less than 10 years ago, it shall pay back the enterprise income tax that has been reduced or exempted. Therefore, if the proportion of foreign equity in a joint venture is less than 25% due to domestic acquisition, it will inevitably change the nature of the enterprise and pay income tax. In practice, the author has done such a case, but in the end, the problem of income tax payment was solved by the way of Chinese capital increase after equity acquisition. Because according to Article 5 of the Interim Provisions on Income Tax Treatment of Merger, Division, Equity Restructuring and Asset Transfer of Foreign-invested Enterprises. People's Republic of China (PRC) State Taxation Administration of The People's Republic of China 1997 promulgated that the equity held by foreign investors before the equity restructuring (including equity transfer, capital increase and share expansion) did not withdraw in the enterprise restructuring business, but was merged or divided into enterprises or enterprises after the equity restructuring after the merger or division, and the restructuring was not considered.
As for foreign direct investment in the form of mergers and acquisitions, it has gradually become a new feature of foreign investment. However, due to the imperfection of relevant laws and regulations, many legal norms still need to be adjusted, such as the merger and acquisition of shares of listed companies by foreign investors. Recently, however, the Shanghai Equity Exchange and the Shanghai Foreign Investment Promotion Center jointly launched the "Shanghai M&A Fast Track", stipulating that the conditions for using the fast track include: the M&A project conforms to the relevant national industrial investment policies, the M&A transaction is completed in the Shanghai Equity Exchange, and the transaction amount of the acquired project does not exceed 10 million US dollars. The Committee on Foreign Investment will provide the greatest convenience in the examination and approval procedures, encourage foreign investors to participate in the restructuring of state-owned enterprises, and promote the adjustment of the equity structure and equity transactions of unlisted state-owned enterprises.
In a word, M&A involves the protection of many interests such as companies, shareholders and creditors, and various economic relations need to be adjusted accordingly. However, China's legal system is in transition, so it is transitional, which not only retains some legal provisions under the planned economy, but also formulates some rules and regulations suitable for the market economy. Compared with general commodities, the actual boundary of enterprises as the main body of M&A activities is much more blurred. Therefore, in addition to the problems mentioned by the author of this paper, in fact, corporate mergers and acquisitions also involve the value evaluation of the target enterprise, potential debt problems such as mortgage, employee placement and many other aspects. Therefore, for the M&A activities of large enterprises, the acquirer should collect, evaluate and judge the information about the operation, management, debt, law and organizational system of the proposed enterprise through special intermediaries, so as to effectively promote the smooth development of M&A activities.
References:
/wz/ 10_5295.html
Merger, merger, acquisition and reorganization
Merger and acquisition is an important form of asset reorganization in market economy. The meaning of merger refers to the reorganization of two or more companies through legal means, and only one company will retain its legal status after the reorganization. Merger means that after reorganization, the original company no longer retains its legal status, but forms a new company. Acquisition means that a company buys shares and assets of another company in the securities market with cash, bonds and stocks in order to gain control of the company, and the legal person status of the company does not disappear. Mergers and acquisitions of enterprises are often carried out at the same time, which is called mergers and acquisitions.
As an important lever of asset reorganization, enterprise merger and acquisition has the following functions: first, compared with the enterprise's own accumulation model, enterprise merger and acquisition can quickly realize production concentration and operation scale in a short time. Second, it is conducive to reducing excessive competition in industries that produce the same product. Third, compared with new enterprises, enterprise merger can reduce capital expenditure. Fourth, it is conducive to adjusting product structure, strengthening superior products, eliminating products with no future and no market, accelerating the formation of pillar industries and promoting industrial restructuring. The fifth is to optimize capital through debt restructuring and capital increase.
Due to the above functions, enterprise merger and acquisition has become an important form of adjusting and optimizing enterprise stock assets in the market economy. In this case, why can't enterprise merger and acquisition become an important form of enterprise assets reorganization in China? The reason is that M&A, as a complex economic behavior, has certain social and economic conditions, and the development and improvement of social and economic conditions in turn promote the development of M&A.. Therefore, whether the social and economic environment on which enterprise M&A depends is perfect or not restricts the development and growth of enterprise M&A mechanism. Socio-economic conditions on which M&A depends include:
First, a sound market system and mechanism, mainly including resource allocation, a sound market system and a sound market mechanism;
The second is a sound legal environment. The legal environment is an organic part of the socio-economic conditions of enterprise merger and acquisition. The marketization of enterprise merger and acquisition needs a perfect and orderly legal environment as a guarantee. Including company law, securities law, anti-monopoly law, social security law and so on;
The third is a good social security environment. Merger and acquisition of enterprises will inevitably bring about the problem of personnel placement, which requires a sound supporting social security system, otherwise, merger and acquisition of enterprises will be difficult. A complete social security system mainly includes: social insurance, social relief, social welfare, social preferential treatment, medical security system and so on. In addition, corporate mergers and acquisitions also need the support of government policies.
At present, China does not have the socio-economic conditions for the development of the above-mentioned enterprise mergers and acquisitions. China's market economy is not very developed, the market system and mechanism are not perfect, especially the capital market on which enterprise M&A depends is not perfect, the laws and regulations required by enterprise M&A are not perfect, and the social security system has not been fully established. It can be seen that the socio-economic conditions required for enterprise mergers and acquisitions are not available, which fundamentally restricts the development of enterprise mergers and acquisitions in China. Because of this, at present, the use of enterprises to merge and reorganize assets has encountered a series of obstacles, both institutional obstacles and policy obstacles (such as fiscal, taxation, finance, personnel and labor policies); There are both economic and non-economic factors (such as political security and social stability). These obstacles determine that enterprise merger and acquisition can not be the main way of asset reorganization in China at present.
However, M&A will flourish in the trough of the economic cycle. On February 9th, 2008, 65438, China Banking Regulatory Commission issued "Guidelines on M&A Loan Risk Management of Commercial Banks", which can be said to be an important means to help domestic enterprises cope with the impact of the current international financial crisis, adding another financial engine for maintaining growth, expanding domestic demand and restructuring. At present, many enterprises are struggling in the global financial tsunami and even on the verge of bankruptcy. At the same time, many enterprises that intend to expand through mergers and acquisitions are also anxious because of financial problems. The launch of M&A loan just provides them with financing channels. Asset reorganization and M&A are a way to improve the profitability of enterprises in a short time, and the profit expectation after reorganization and M&A will give the market unlimited imagination. 2009 is destined to be a year of merger and reorganization. The history of M&A in the world shows that the wave of large-scale M&A often rises before the economic recovery, and the monetary policies of various countries are infinitely close to zero interest rates, and the prices of assets and resources also provide an excellent historical opportunity for M&A. ..
Bankruptcy reorganization
Bankruptcy reorganization, in the broadest sense, includes enterprise bankruptcy and liquidation. Liquidation refers to declaring the company completely disintegrated according to law, selling all assets and paying off debts. Therefore, there will be asset reorganization in the way of enterprise elimination.
Bankruptcy is not only the closure and liquidation of enterprises, but also the reorganization and adjustment according to law. In a narrow sense, bankruptcy reorganization means that an enterprise can survive after financial reorganization according to law. Adjustment is a settlement reached by creditors and debtors out of court. It can be seen that restructuring and adjustment are insolvent enterprises and need to go bankrupt. After financial reorganization, capital structure reorganization, adjustment of leading group and transformation of production and operation plan, it was thoroughly remoulded. The functions of this bankruptcy reorganization and adjustment are:
First, it helps creditors avoid losses due to insolvency in bankruptcy liquidation;
Second, it helps employees to prevent a large number of unemployment caused by the dissolution of enterprises and the social shock it brings;
Third, it is beneficial for enterprises to avoid damaging their reputation due to bankruptcy.
Nevertheless, the liquidation form of bankruptcy is still the main form of bankruptcy, which promotes the flow, redistribution and reorganization of assets and plays a role in structural adjustment and supporting the superior and eliminating the inferior. In western developed capitalist countries, bankruptcy is a normal phenomenon of market economy, and hundreds of thousands of enterprises go bankrupt every year. However, under the conditions of underdeveloped market economy, imperfect bankruptcy mechanism and imperfect bankruptcy legislation in China, it is quite difficult for enterprises to go bankrupt, even more difficult than implementing enterprise merger. Because of this, the national policy encourages "more mergers and less bankruptcy".
The difficulties in the bankruptcy of state-owned enterprises mainly come from the following aspects:
First, it is difficult to straighten out enterprise property rights. The bankruptcy of state-owned enterprises involves who will approve the decision, who will apply, who will bear the economic risks and losses, and who will pay off. The relationship between state-owned property rights is very complicated, and it is still an urgent problem to be solved who will exercise ownership on behalf of the country.
Second, it is difficult to realize assets. At present, the economic conditions for realizing assets in China are not perfect, the auction industry has just started, and the intermediary institutions are not perfect, which leads to inconvenient and irregular auction of bankrupt assets.
Third, it is difficult to divert employees. Due to the imperfection of China's social security system, the placement of employees in the bankruptcy of state-owned enterprises has become a major problem and a key factor restricting the implementation of China's bankruptcy system. Fourth, the legal system is difficult to regulate. At present, the laws and regulations related to enterprise bankruptcy are still quite imperfect, and there are many aspects that cannot be followed, and some laws cannot be followed, so that they cannot replace laws. For example, the membership structure of the bankruptcy liquidation group of bankrupt enterprises, the determination of bankruptcy degree, the effective conditions of legal documents, and the form of documents are all very irregular, lacking legal protection for creditors, leaving a loophole for bankruptcy to evade debts. Due to the above factors, it is quite difficult for enterprises in China to go bankrupt.
From Baidu
Zhushun!