Dry information丨Mergers, acquisitions and restructuring of listed companies，What you need to know (1)

港信通-今天给大家介绍下上市公司并购重组，Let’s learn together! one、Qiao avoids backdoor listing now，There are two prerequisites for a backdoor listing.：one、Change of control；Second、置入资产超过上市公司前一年资产规模的 100%。As long as one of the conditions is successfully circumvented，There is no need to constitute a backdoor listing review。These two conditions have also become a breakthrough for many listed companies to use their own special skills to avoid backdoor transactions.。

Combined with market conditions，Companies generally work hard on control rights，Because the scale of invested assets is relatively difficult to control，However, assets can also be packaged and placed in installments to avoid backdoor hard targets.，For example, if you first acquire a part of a company's equity,，As long as the assets injected are kept below the asset size of the listed company,，The acquisition can be continued step by step in the future。The actual controller of a listed company has three alternative methods to consolidate control.。

The first method is for the actual controller of the listed company to use real money，Buy back the diluted equity through various supporting financing，This method is more expensive，However, it is widely used in capital markets。The second method is that the actual controller of the listed company communicates with his family members、friend、Other capital parties form a "concerted actor" relationship，Guarantee its holding position，Guarantee that no backdoor listing terms will be violated。

The third method is for the acquirer's shareholders to "defeat their martial arts skills"，Use various methods to diversify its holdings、Equity reduction、Prevent one dominant shareholder from affecting changes in controlling ownership after mergers and acquisitions。It is easier to reduce assets to avoid backdoor transactions.、lightweight。Such as splitting assets to reduce the equity ratio。The widespread operating practices in the industry are：Acquire a lower proportion of the target company’s equity first，Just want to consolidate the holding first，The remaining shares will be discussed later.。

two、Issuing shares to purchase assets while raising supporting funds

Things to note

1. Purpose of Raising Matching Funds The purpose of raising matching funds shall comply with the "Measures for the Administration of Securities Issuance of Listed Companies"、Relevant provisions of the "Interim Measures for the Administration of Securities Issuance by GEM Listed Companies"。

Considering the particularity of mergers, acquisitions and reorganizations，Raising matching funds can also be used to：Pay the cash consideration in this merger and acquisition transaction，Pay taxes on this merger and acquisition transaction、Personnel placement

cost

Waiting for mergers and acquisitions integration

cost

，Underlying assets, projects under construction, etc.。募集配套资金用于补充公司流动资金的比例不应超过交易作价的 25%，或者不超过募集配套资金总额的 50%，What constitutes the listing of Xike，不超过 30%。

1. Pricing method for raising matching funds、lock-in period、Details of hiring an intermediary agency

Require

The asset purchase part through the issuance of shares shall be in accordance with the "Measures for the Reorganization of Listed Companies"、"Measures for the Management of Financial Consulting Business for Mergers, Acquisitions and Reorganizations of Listed Companies" and other relevant regulations shall be implemented，The part of raising supporting funds shall be in accordance with the "Measures for the Administration of Securities Issuance of Listed Companies"、"Interim Measures for the Administration of Securities Issuance by GEM Listed Companies"、"Measures for the Administration of Securities Issuance and Listing Sponsorship Business" and other relevant regulations shall be implemented。

Raising supporting funds and purchasing assets。three、资产并购 or 股权并购并购方的需求是并购方选择并购方式的决定性因素。If the acquirer is interested in the target company’s intangible assets、Supply channels、Sales channels and other resources themselves，Then he will usually choose to take asset mergers and acquisitions。If what attracts the acquirer is not some of its assets themselves,，Equity M&A may be better than asset M&A。

Another important consideration for investors whether to choose equity mergers or asset mergers is the tax burden.。Since equity mergers and acquisitions usually only involve income tax and stamp duty，In addition to these two taxes, asset mergers and acquisitions，Business tax is often involved、VAT、land value added tax、Deed tax、City maintenance and construction tax, education surcharge and many other taxes and fees，Therefore, in most cases, the tax burden on equity mergers and acquisitions is smaller than that on asset mergers and acquisitions.，But not always。

In the context of reform to optimize the tax environment for corporate mergers, acquisitions and reorganizations，Land value-added tax that may be involved in asset mergers and acquisitions、Deed taxes, etc. may be reduced or exempted if certain conditions are met.，Therefore, specific analysis of specific situations is required。Moreover, M&A transactions in practice are extremely complex.，There are many factors to consider when choosing a merger and acquisition method.，Therefore, we recommend that both parties to the transaction choose professional intermediaries to provide services.，Choose the best trading plan。

Four、Points related to persons acting in concert 1、投资者在股份减持行为中是否适用一致行动人的定义，是否需合并计算相关股份？按《证券法》第八十六条规定，Investors hold or pass agreements、其它安排与他人共同持有上市公司的股份达到 5% 或达到 5% back，无论持股比例增加或者减少 5% hour，All must fulfill reporting and announcement obligations。

"Measures for the Acquisition of Listed Companies" No. 12、Thirteen、Articles 14 and 83 further stipulate，Shares held by investors and persons acting in concert shall be calculated on a consolidated basis，its holdings、Any reduction in holdings must fulfill relevant information disclosure and reporting obligations in accordance with regulations.。

The so-called concerted action situation under the "Measures for the Acquisition of Listed Companies"，Including the twelve situations listed in paragraph 2 of Article 83 of the "Measures for the Acquisition of Listed Companies"，If there is no contrary evidence，that is, persons acting in concert with each other，This type of concerted action relationship is not premised on whether the relevant shareholding entities increase or decrease their holdings of shares of the listed company.。2、How to calculate the interests owned by persons acting in concert?

Article 12 of the "Measures for the Administration of Acquisitions of Listed Companies" stipulates that "the rights and interests of investors in a listed company，Including shares registered in his name and shares not registered in his name but in which the investor can actually control voting rights。The interests held by investors and their persons acting in concert in a listed company shall be calculated on a consolidated basis.”，Article 83 further stipulates that “Those acting in concert shall calculate the shares held by them on a consolidated basis.。

Investors calculate their holdings，Should include shares registered in its name，Also includes shares registered in the name of persons acting in concert with them.”。thus，《上市公司收购管理办法》所称合并计算，是指投资者与其一致行动人能够控制上市公司股份的总数。(3) Natural persons and their spouses、Are close relatives such as brothers and sisters persons acting in concert?

Natural persons and their close relatives comply with Article 83, Paragraph 2, of the "Measures for the Administration of Acquisitions of Listed Companies"

1. the provisions of this paragraph and the
2. Item "Other related relationships between investors"，If there is no contrary evidence, he should be deemed as a person acting in concert。five、general offer，Or a partial offer?
3. Securities trading through stock exchanges Investors trading securities through stock exchanges，Hold or pass an agreement、其他安排与他人共同持有一个上市公司已发行的股份达到 30％，Continue to increase shareholdings，triggering a tender offer obligation，An offer to acquire all or part of the shares of the listed company shall be made to all shareholders of the listed company.。

Because the acquirer can accurately control the number of shares of the listed company purchased through transactions on the stock exchange，当其持有一个上市公司已发行的股份正好等于 30% 之后不在增持的，does not trigger the obligation to tender a takeover。

1. Agreement acquisition: The acquirer acquires the shares of a listed company through an agreement.，可能正好等于 30%，也可能直接超过 30%， They are introduced as follows：①恰好收购 30%如果收购人恰好在 30% 的时点上停下来，Does not trigger tender offer obligations。If we continue to increase our shareholdings，The acquirer can adopt a "partial offer" approach，You can also proactively launch a “general tender offer”。

②直接超过 30%如果协议收购导致收购人持有目标公司的股权一下子超过 30％（例如 A 上市公司的控股股东甲将其持有的 A 上市公司 40% 的股权全部协议转让给 B 公司），首先收购人（B 公司）应当考虑是否可以向中国证监会申请豁免，If statutory exemption conditions are met，Obtained exemption，No tender offer required；If the acquirer applies for exemption but does not obtain it，收购人可以在接到中国证监会不予豁免通知之日起 30 日内将其或者其控制的股东所持有的目标公司股份减持到 30% or 30% below。

otherwise，收购人必须向目标公司（A 上市公司）除协议转让股份的股东（甲）之外的「所有剩余股东」发出收购其所持「全部股份」的要约，which triggers mandatory general tender offer obligations。After the general offer is issued，有可能导致收购人一下子持有目标公司 100% 的股权，The target company can only delist。

six、The "Measures for the Reorganization of Listed Companies" does not mandate assessment. The revised "Measures for the Reorganization of Listed Companies" no longer mandates the use of asset assessment results as the basis for pricing.。therefore，From the perspective of listed company supervision，Assessment reports are no longer rigid

Require

Got it。

But because listed companies are public companies，It needs to face shareholders and regulators，Need to make necessary explanations on the reasonableness of its transaction price，Assume there is no appraisal or valuation report，Then the next pricing process will be very difficult.，For example, the management of a listed company needs to explain the transaction pricing、Independent directors express their opinions、The board of directors successfully voted，It is also difficult for public investors to understand whether there is any profit output in the transaction, etc.，Therefore, in practice, almost all transactions use valuation reports as support for price rationality.，Most of the reports are issued by evaluation agencies，A few use brokerage valuation reports。

seven、Thirteen circumstances under which state-owned assets must be evaluated: Wholly state-owned enterprises、Wholly state-owned company、There are thirteen situations in which state-owned capital holding companies and state-owned capital joint-stock companies (i.e., state-funded enterprises) and their subsidiaries at all levels must conduct asset appraisals.，Specifically include：

1. Restructure in whole or in part into a limited liability company or a joint stock company；
2. Foreign investment with non-monetary assets；
3. merge、separate、Bankruptcy、dissolution；
4. Changes in the proportion of state-owned shareholders’ equity in unlisted companies；
5. transfer of property rights；
6. Asset transfer、replacement；
7. Leasing the entire assets or part of the assets to non-state-owned units；
8. Repay debt with non-monetary assets；
9. Asset litigation；
10. Acquisition of assets from non-state-owned entities；
11. Accept investment from non-state-owned units in the form of non-monetary assets；
12. Accept non-state-owned entities to use non-monetary assets to pay debts；
13. law、Other matters requiring asset assessment as stipulated in administrative regulations。

eight、The pricing range of the pricing mechanism has been broadened after the revision of the "Measures for the Reorganization of Listed Companies"，and allow appropriate discounts。即定价区间从董事会决议公告日前 20 个交易日均价拓宽为：可以在公告日前 20 个交易日、60 个交易日或 120 个交易日的公司股票交易均价中任选其一，and allows a 10% discount。

also，This revision introduces a mechanism to adjust the issue price based on significant changes in the market price of the stock.，but

Require

Disclose the first board resolution to investors with clear expectations。Specifically，The first board resolution of issuing shares to purchase assets can clearly stipulate that the listed company's stock price changes significantly compared to the issue price before the transaction is approved by the China Securities Regulatory Commission.，The board of directors can make one adjustment to the issuance price based on the set adjustment plan.。

The adjustment plan should be clear and specific，After it is submitted to the general meeting of shareholders for review and approval, the board of directors can adjust the issue price in a timely manner according to the plan and there is no need to re-apply for this price adjustment.。Nine、Regarding gambling, the revised "Measures for the Reorganization of Listed Companies" does not make gambling compulsory，Therefore, both parties to the transaction can voluntarily choose to sign a contract that suits their own characteristics.、A more flexible performance compensation agreement。But not forcing gambling is not the same as forcing not gambling。

we think，In a mature capital market, there should still be some mutual restraints on gambling.，But the betting mechanism can be more flexible，Including coverage of gambling liability, etc.。But if the counterparty is the controlling shareholder of a listed company、Actual controller or related persons controlled by him，Performance compensation should be made with the shares and cash obtained。

and，根据证监会 2025 Year 1 moon 15 日新发布的《关于并购重组业绩补偿相关问题与解答》，regardless of whether the underlying assets are owned or controlled by it，Regardless of whether its participation in this transaction is based on temporary arrangements such as bridge crossing.，Controlling shareholders of listed companies、The actual controller or the related persons controlled by him shall be compensated for performance with the shares and cash obtained.。

at the same time，"Questions and Answers Related to Performance Compensation for Mergers, Acquisitions and Reorganizations" pointed out，When the transaction is priced using the asset-based approach valuation results，If the asset-based approach uses a method based on future earnings expectations for one or several assets，Controlling shareholders of listed companies、The actual controller or the related persons controlled by him should also perform performance compensation for this part.。

visible，Regarding restructuring transactions involving major shareholders，As long as the income approach is used，Regardless of the purpose of the transaction or the proportion of the income approach assessment，Performance compensation is required。ten、并购贷款2025 年 2 moon 10 day，The China Banking Regulatory Commission has revised the "Guidelines for the Management of Merger and Acquisition Loan Risks of Commercial Banks"，The revised Guidelines clearly state that：First, moderately extend the term of M&A loans。

Since the investment return period of different M&A projects is different,，The integration of some M&A projects is complex，It takes a long time to produce synergistic effects，因而此次修订将并购贷款期限从 5 年延长至 7 Year，More in line with the actual situation of M&A transactions。Second, moderately increase the proportion of M&A loans。

Considering that bank loans are an important financing channel for M&A transactions，In the current situation of rapid development of M&A transactions,，In order to reasonably meet the financing needs of mergers and reorganizations，此次修订将并购贷款占并购交易价款的比例从 50% 提高到 60%。Third, moderately adjust M&A loan guarantees

Require

。

This revision changes the mandatory provisions of guarantees into principled provisions，At the same time, the guarantee conditions should be higher than other types of loans are deleted.

Require

，Commercial banks are allowed to prevent merger and acquisition loan risks，According to the risk status of M&A projects、The credit status of the acquiring company reasonably determines the guarantee conditions。

eleven、"PE+listed company" M&A fund exit method (1) Exit method for normal operation of the project If the project operates normally，The main exit methods are：one，Exit from mergers and acquisitions of listed companies。This is the mainstream model，Generally, M&A funds agree on a duration of three years.。Agree within three years，Listed companies have priority rights to acquire projects。three years later，M&A funds will have free disposal rights，可以考虑直接让项目 IPO 或卖给其他公司。

Second，独立在境内外资本市场进行 IPO，Completed exit；Third，Transfer invested projects to other industry funds，Completed exit；Fourth，Acquisition by the management of the invested project company，Completed exit。

1. 项目出现亏损的退出方式如项目出现意外，对于上市公司或其大股东外的其他 LP 而言，Major shareholders of listed companies will usually provide certain protection，There are mainly two situations："Investment" Fund。

So-called “investment” funds，上市公司大股东与其他 LP（出资人）的出资比例为 1：N，The capital contribution of major shareholders of listed companies is equivalent to the "limited inferiority" model，上市公司大股东和其他 LP 分别按比例进行出资；What if this project loses money?，If the loss is within the investment range of the major shareholder of the listed company，will be borne by the major shareholders of the listed company；And the part of the loss that exceeds the scope of its investment，超出部分由其他 LP 按出资份额共同承担。

"Financing" Fund。"Financing" Fund，That is, financing for major shareholders of listed companies。上市公司大股东与其他 LP 的出资比例为 1：N，In addition to the major shareholders of listed companies having to contribute a certain amount of funds，还要对另外 LP 的出资承担保本付息的责任。twelve、Preferred stock financing (1) The issuing entity of preferred stocks currently，Only listed companies and unlisted public companies can issue preferred shares。

Except for listed companies and unlisted public companies，Other companies cannot issue preferred shares。in，Listed companies can issue preferred shares to the public，Preferred shares can also be issued privately，Non-listed public companies can only issue preferred shares privately。

1. 优先股的发行与交易①发行条件公司已发行的优先股不得超过公司普通股股份总数的 50％，且筹资金额不得超过发行前净资产的 50％，已回购、Converted preferred shares are not included in the calculation。

②Specialities when listed companies “publicly issue” preferred shares

Require

Listed companies that issue preferred shares to the public，The following matters must be stipulated in the company's articles of association：Take a fixed dividend rate，Dividends must be distributed to preference shareholders if there is distributable after-tax profit，The difference in dividends not paid in full to preference shareholders shall be accumulated to the next fiscal year，After preference shareholders distribute dividends according to the agreed dividend rate，No longer participate in the distribution of remaining profits together with ordinary shareholders。

Thirteen、Management financed acquisition

Require

first，The listed company should have a sound and well-functioning organizational structure and an effective internal control system，公司董事会成员中独立董事的比例应当达到或者超过 1/2。一般的上市公司独立董事的比例应为 1/3 That's all，But when it comes to management buyouts，

Require

该上市公司独立董事的比例应为 1/2 That's all。

Secondly，This acquisition shall be subject to a resolution by the non-related directors of the board of directors，且取得 2/3 以上的独立董事同意后，Submit to the company's general meeting of shareholders for review，Passed by more than half of the voting rights held by unrelated shareholders attending the general meeting of shareholders。again，Before independent directors express their opinions，An independent financial advisor should be hired to provide professional opinions on this acquisition，The opinions of independent directors and independent financial advisors should be announced together。

at last，Director of listed company、supervisor、高级管理人员存在《公司法》第 148 条规定的情形，或者最近 3 年有证券市场不良诚信记录的，Not allowed to acquire the company。

《公司法》第 148 regulations，director、Senior managers shall not engage in the following behaviors (including but not limited to)：

1. Violating the provisions of the company's articles of association or failing to attend the shareholders' meeting、Shareholders' meeting agrees，Enter into a contract or conduct transactions with the Company；
2. Without the approval of the shareholders’ meeting or general meeting of shareholders，利用职务便利为自己或者他人谋取属于公司的商业机会，自营或者为他人经营与所任职公司同类的业务。

fourteen、Profitability of the underlying assets The purpose of mergers, acquisitions and reorganization of listed companies is to improve the quality and profitability of listed companies，Only through such mergers, acquisitions and reorganizations can listed companies truly achieve their goal of becoming bigger and stronger.。So if the acquired assets are inferior assets,，Excellent sustained profitability，It is not conducive to improving the investment value of listed companies.，It will also harm the rights and interests of other shareholders.，It is reasonable to be rejected.。

Companies should focus on the continued profitability of the underlying assets：

1. Industry conditions of the underlying assets，Including the development prospects of the industry itself、Whether the industry complies with national industrial policies, etc.，The continued profitability of underlying assets in some sunset industries is the most worrying.。At the same time, we should pay attention to the position of the underlying assets in the industry.、Status, industry environment, market space, etc.。
2. The core technology of the underlying assets involved in the business operations of the underlying assets、Core employees and the variety structure of its main products and services、Usage and raw material supply, etc.。
3. The business model of the underlying asset、business development model、Business characteristics、Whether the transaction model can meet development needs, etc.，This involves the company's ability to create wealth and space for development。
4. The profitability and quality of the underlying assets；Whether the underlying asset correlation is overly dependent on the；Whether the market composition is too single?；Whether the tax incentives and government subsidies enjoyed have a large proportion of their income?；The stability, concentration and quality of customers and suppliers；What is the degree of dependence?。

fifteen、Asset ownership and integrity of the underlying assetsIn terms of asset ownership and integrity of the underlying assets，Enterprises should focus on：

1. Whether the underlying assets have obtained corresponding warrants. Enterprises should fully disclose the handling of warrants for the underlying assets.，For those who have not yet registered、Transfer procedures for assets，Enterprises must fully disclose the details of these assets、book value、Appraisal value etc.，And explain the progress of asset processing and expected completion time、Are there any legal obstacles to completing relevant procedures?、The impact of late completion，when necessary，Supplementary disclosure of proposed resolution measures。
2. Whether there are disputes or restrictions on the subject assets. The ownership of the subject assets (including the equity of the subject company and the main assets held by the subject company) is mortgaged.、Restrictions on security rights such as pledges or the relevant obligee's failure to waive the right of first refusal, etc.，Transaction entities should disclose the status of elimination of rights restrictions on the underlying assets item by item, etc.，Or give up the right of first refusal and other processing progress and expected completion date。

Aiming at the risk of not being able to complete the project on time，The impact should be fully explained，Make adequate risk warnings，Propose practical solutions。The amount of debt corresponding to the underlying asset as collateral is relatively large，The transaction entity must fully analyze and explain the solvency of the relevant debtor，Prove that it has strong solvency and good debt performance record，There will be no major uncertainty in the ownership of the assets of the listed company after its restructuring due to guarantee matters.。

Subject assets and those subject to administrative penalties and lawsuits，The specific reasons for the punishment should be disclosed、The progress or results of punishment and the specific circumstances of the litigation，Analyze its impact on listed companies。at the same time，Companies should pay attention to the establishment of a legal and compliance operation guarantee system for listed companies after the transaction is completed and make corresponding disclosures。

in addition，Companies should pay attention to the administrative penalties and litigation situations involving the counterparty itself and its shareholders，Because the China Securities Regulatory Commission is not only concerned about the administrative penalties imposed on the target company and the company's own major pending litigation,，Attention will also be paid to penalties and litigation involving the counterparty itself and its shareholders.，Because this may affect the ownership of the equity of the target company held、stability，and the effectiveness of the decision-making procedures performed within the counterparty.，therefore，Enterprises should also pay attention to this。

明天港信通-还会接着科普，If you still need to know more about this，You are welcome to consult Hong Kong Xintong at any time!

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