上市公司并购重组：借壳上市规避、发行股份购买资产与一致行动人权益计算

上市公司并购重组涉及控制权安排、资产注入方式、融资配套、税务处理及信息披露等多个专业环节。以下围绕并购重组中的核心议题逐一展开说明。

one、借壳上市的规避路径

There are two prerequisites for a backdoor listing.：one，Change of control；Second，The assets invested exceed 100% of the listed company’s asset size in the previous year。As long as one of the conditions is successfully circumvented，There is no need to constitute a backdoor listing review。这两个条件也成为众多上市公司各显神通巧避借壳的突破口。

结合市场情况，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.。

1. 上市公司实际控制人以真金白银，Buy back the diluted equity through various supporting financing，This method is more expensive，However, it is widely used in capital markets。
2. 上市公司实际控制人通过与家属、friend、其他资本方形成一致行动人关系，Guarantee its holding position，Guarantee that no backdoor listing terms will be violated。
3. 收购方股东自废武功，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、发行股份购买资产同时募集配套资金的注意事项

募集配套资金的用途

募集配套资金的用途应当符合《上市公司证券发行管理办法》、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、人员安置费用等并购整合费用，Underlying assets, projects under construction, etc.。The proportion of supporting funds raised to supplement the company's liquidity should not exceed 25% of the transaction price，Or no more than 50% of the total amount of matching funds raised，构成借壳上市的，Not more than 30%。

Pricing method for raising matching funds、lock-in period、聘请中介机构的具体要求

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。

three、资产并购与股权并购的选择

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、契税等在满足一定条件下均可能被减免，Therefore, specific analysis of specific situations is required。而且并购交易极为复杂，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、一致行动人的相关要点

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、Other arrangements to jointly hold with others the shares of a listed company reaching 5% or after reaching 5%，Regardless of whether the shareholding ratio increases or decreases by 5%，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.。

如何计算一致行动人拥有的权益

《上市公司收购管理办法》第十二条规定投资者在一个上市公司中拥有的权益，Including shares registered in his name and shares not registered in his name but in which the investor can actually control voting rights。投资者及其一致行动人在一个上市公司中拥有的权益应当合并计算，第八十三条进一步规定一致行动人应当合并计算其所持有的股份。Investors calculate their holdings，Should include shares registered in its name，也包括登记在其一致行动人名下的股份。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。

自然人与其配偶、兄弟姐妹等近亲属是否为一致行动人

自然人及其近亲属符合《上市公司收购管理办法》第八十三条第二款第（十一）项规定以及第（十二）项投资者之间具有其他关联关系的情形，If there is no contrary evidence, he should be deemed as a person acting in concert。

five、全面要约与部分要约

通过证券交易所的证券交易

投资者通过证券交易所的证券交易，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%之后不再增持的，does not trigger the obligation to tender a takeover。

协议收购

收购人通过协议的方式收购上市公司股份，Probably exactly 30%，It may also directly exceed 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，收购人可以采取部分要约的方式，也可以主动发起全面要约收购。
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），First, the acquirer (Company B) should consider whether it can apply for exemption from the China Securities Regulatory Commission，If statutory exemption conditions are met，Obtained exemption，No tender offer required；If the acquirer applies for exemption but does not obtain it，The acquirer may reduce the shares of the target company held by it or its controlled shareholders to 30% or less within 30 days from the date of receipt of the notice of non-exemption from the China Securities Regulatory Commission.。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，It may result in the acquirer suddenly holding 100% of the shares of the target company.，The target company can only delist。

six、上市公司重组办法不强制评估

修订后的《上市公司重组办法》不再强制将资产评估结果作为定价依据。therefore，From the perspective of listed company supervision，评估报告不再是硬性要求了。

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、国有资产必须进行评估的十三种情形

国有独资企业、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、定价机制

《上市公司重组办法》修订后定价区间得到扩宽，and allow appropriate discounts。That is, the pricing range is widened from the average price of the 20 trading days before the announcement date of the board resolution to：Can be issued 20 trading days before the announcement date、60Choose one of the average trading price of the company's stock on trading days or 120 trading days，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.，但要求在首次董事会决议的第一时间披露给投资者明确预期。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、关于对赌

修订以后的《上市公司重组办法》不强制对赌，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，According to the "Questions and Answers Related to Performance Compensation for Mergers, Acquisitions and Reorganizations" newly released by the China Securities Regulatory Commission on January 15, 2025，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月10日，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：

1. 适度延长并购贷款期限。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，Therefore, this revision extends the term of M&A loans from 5 years to 7 years.，More in line with the actual situation of M&A transactions。
2. 适度提高并购贷款比例。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，This revision increases the proportion of M&A loans in the M&A transaction price from 50% to 60%。
3. 适度调整并购贷款担保要求。This revision changes the mandatory provisions of guarantees into principled provisions，同时删除了担保条件应高于其他种类贷款的要求，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+上市公司”并购基金退出方式

项目正常运行的退出方式

If the project is running normally，The main exit methods are：

1. 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，You can consider directly IPOing the project or selling it to other companies.。
2. Independently conduct IPOs in domestic and overseas capital markets，Completed exit；
3. Transfer invested projects to other industry funds，Completed exit；
4. Acquisition by the management of the invested project company，Completed exit。

项目出现亏损的退出方式

If something unexpected happens to the project，For other LPs other than listed companies or their major shareholders，Major shareholders of listed companies will usually provide certain protection，There are mainly two situations：

"Investment" Fund。So-called “investment” funds，The capital contribution ratio between major shareholders of listed companies and other LPs (investors) is 1：N，The capital contribution of major shareholders of listed companies is equivalent to the "limited inferiority" model，Major shareholders of listed companies and other LPs contribute capital in proportion.；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，The excess amount will be shared by other LPs based on their share of capital contribution.。

"Financing" Fund。"Financing" Fund，That is, financing for major shareholders of listed companies。The capital contribution ratio between the major shareholders of listed companies and other LPs is 1：N，In addition to the major shareholders of listed companies having to contribute a certain amount of funds，They also have to bear the responsibility of guaranteeing the capital and paying interest for the other LP’s investment.。

twelve、优先股融资

优先股的发行主体

at present，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。

优先股的发行与交易

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。

上市公司公开发行优先股时的特殊要求：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、管理层融资收购的要求

first，The listed company should have a sound and well-functioning organizational structure and an effective internal control system，The proportion of independent directors among the company’s board of directors should reach or exceed 1/2。Generally, the proportion of independent directors in listed companies should be more than 1/3，But when it comes to management buyouts，要求该上市公司独立董事的比例应为1/2以上。

Secondly，This acquisition shall be subject to a resolution by the non-related directors of the board of directors，and after obtaining the consent of more than 2/3 of the independent directors，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、Senior managers fall under the circumstances specified in Article 148 of the Company Law，Or have a bad integrity record in the securities market in the past three years，Not allowed to acquire the company。

Article 148 of the Company Law，director、Senior managers shall not engage in the following behaviors (including but not limited to)：

• 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；
• 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、标的资产的盈利能力

上市公司并购重组目的就是要提升上市公司质量与盈利能力，只有这样的并购重组才有可能使上市公司真正实现做大做强的目的。So if the acquired assets are inferior assets,，持续盈利能力堪忧，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.。同时要关注标的资产在行业中所处地位、行业环境、市场空间等。
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、标的资产的资产权属及完整性

在标的资产的资产权属及完整性方面，Enterprises should focus on：

1. 标的资产是否已取得相应权证。企业应充分披露标的资产的权证办理情况，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. 标的资产是否存在争议或限制。标的资产（包括标的公司股权及标的公司持有的主要资产）权属存在抵押、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.。

标的资产涉及被行政处罚及诉讼的，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。