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圖書內(nèi)容簡介

This book approaches the subject of mergers mad
acquisitions (" Mb, A") primarily from a foreign acquirer's
perspective, and focuses on M&A activities carried out by
foreign investors and domestic Chinese enterprises in China's
mainland. As a result, we will deliberately exclude those
China-related MScA deals conducted and concluded offshore in
such jurisdictions as Hong Kong, Singapore, the United States
and beyond. Nor are we going to discuss those deals relating
to special purpose vehicles with funding originated from
Ghina's mainland. For the same reason, we will not include
MKA transactions that involve existing foreign-invested
enterprises as either sellers or buyers, with the exception
where foreign-invested holding companies in China are used
as investment vehicles.
We well understand that MKA is a very complex subject
to write about. It is especially so when the legal framework
governing MKA in China is still in its infancy, and laws
thereof are promulgated by different government bodies and
appear to be fragmented and even contradictory sometimes.
Therefore, we have no intention to cover every aspect of the
existing laws with respect to MKA in China, for such efforts,
if we had taken, would have most likely resulted in confusions
and even chaos.
This book does not intend to be an exhaustive or in-
depth discussion of MkA laws in China, but provides an
overview of the subject for reference purposes only. In
practice, every Mb.A deal is unique, and as such issues
involved, attention paid and laws applied and enforced may
vary considerably from case to case. Therefore it is both
unrealistic and impossible for us to aim at a comprehensive
guide that can be referred to for every case. We have tried to
consolidate and to be brief, and to this end what to cover and
what to omit remain to be our personal judgment and
preference. In consideration of the situation that Chinese M~A
laws are constantly evolving, readers are advised to seek
further and more detailed information and advice with respect
to any specific MScA deals at the time of processes of the
contemplated transactions.
The author would like to wholeheartedly extend his
deepest gratitude to Wang Yi, Li-an and Lilian for their
tremendous timely support and assistance during the course of
writing of the present book.
Given the fact that M&A is gaining more popularity in
China, we enthusiastically hope that there will be more
professionals to take part in various aspects of the exciting
MgcA transactions, and contribute to a more transparent,
consistent and investor-friendly legal framework with uniform
and impartial enforcement of the law.
Jerry Z. Li / Christmas Day, 2006

圖書目錄

About the Author
Preface
Table of Abbreviations
Referred to in the Book
Chapter 1 Types of M&A Available in China 1
~ 1 - 1. M&A Defined 3
~ 1 -2. Types of Foreign Investment Generally 4
~ 1 -3. Types of MkA Available 8
~ 1 -4. Two Special M&A Targets in China 10
A. State-owned Enterprises ( "SOEs" ) 10
B. Listed Companies 12
~ 1 - 5. The NDRC Document on Foreign Investment 13
~ 1 - 6. National Economic Security and Antitrust 16
A. National Economic Security 16
B. Antitrust 19
An Additional Note 20
Chapter 2 Legal Framework for M&A in General 23
~ 2 - 1. National Laws 25
A. The Constitution of the People's Republic
of China 25
B. National Foreign Investment Laws 27
C. Other National Laws Relating to M~_A 28
~ 2 -2. Major Departmental Rules Relating to MScA 34
A. General Provisions 34
B. Takeovers of Listed Companies 36
C. Acquisitions of SOEs 241
D. Registered Capital and Total Investment in
FIEs and MkA 43
E. Percentage of Foreign-invested Equity 47
An Additional Note 49
Chapter 3 Concerned Governmental Bodies and
Their Regulatory Functions 51
~ 3 - 1. Ministry of Commerce ( "MOFCOM" ) 53
~ 3 -2. China Securities Regulatory Commission
( "CSRC" ) 56
~ 3 - 3. State Administration of Foreign Exchange
( "SAFE" ) 59
~ 3 -4. State Administration for Industry and
Commerce ( "SAIC" ) 61
~ 3 -5. National Development and Reform
Commission ( "NDRC" ) 68
~ 3 -6. State-owned Assets Supervision and
Administration Commission ( "SASAC" ) 66
~ 3 - 7. State Administration of Taxation ( "SAT" ) 68
~ 3 - 8. Ministry of Finance ( "MOF" ) 70
An Additional Note 72
Chapter 4 China's WTO Accession and Industrial
Policies 75
~ 4 - i. Significance of China's Accession to the WTO 77
~ 4 -2. Market Access and National Treatment
under GATS 80
A. Progress Achieved by GATS Generally 80
B. Market Access and National Treatment 81
C. CATS Achievements as Compromises 84
~ 4 - 3. China's Catalog for Guidance of Foreign
Investment Industries 87
~ 4 -4. CEPA and Its Impfications on MSeA 92
An Additional Note 96
Chapter 5 Means of Consideration and Investment
Vehicles 99
~ 5 - 1. Traditional Means of Foreign Capital
Generally 101
~ 5 -2. Stocks as a Method of Payment 105
A. Stock for Stock Transaction in General 105
B. Application Procedures and Documents to be
Submitted 107
C. Consequences for Failures in Concluding the
Transaction 113
~ 5 - 3. Foreign-invested Holding Companies
("HCs") 113
~ 5 -4. Foreign Institutional Investors 120
An Additional Note 122
Chapter 6 Taxation and Foreign Exchange in
General 125
~ 6 - 1. Preferential Tax Treatments for FIEs in
General 128
~ 6 -2. Preferential Tax Treatments for Post M&A
Entities 131
~ 6 - 3. M~.A Transaction Taxes 134
A. Value Added Tax ("VAT") 134
B. Customs Duties 125
C. Land Appreciation Tax 136
D. Business Tax 137
E. Stamp Tax 138
F. Deed Tax 139
G. Corporate Income Tax 140
~ 6 -4. Foreign Exchange Control in General 140
A. Foreign Exchange Registration and Accounts 141
B. Foreign Exchange Capital Accounts 142
C. Foreign Exchange Current Accounts 145
An Additional Note 147
Chapter 7 Preliminary Agreements and Due
Diligence 149
~ 7 - i. Preliminary Agreements - NDA, LOI and
MOU 151
~ 7 -2. Due Diligence Generally 154
A. Introduction 154
B. Lawyers' Role in Due Diligence Generally 156
C. Evaluation and Accounting 158
~ 7-3. Major Due Diligence Items 161
A. Constituent and Approval Documents 161
B. Ownership and Assets 162
C. Obligations, Liabilities and Material Contracts 165
D. Taxation 168
E. Land Use Rights and Buildings 170
F. Labor and Social Insurance-related Matters 172
G. Environmental Matters 178
H. Intellectual Property Rights and Technology
Transfer Matters 174
I. Claims, Litigation and Arbitration 177
J. Antitrust 177
~ 7 -4. Representations and Warranties 178
An Additional Note 181
Chapter 8 Takeovers of Listed Companies (Part I) 185
~ 8 - 1. Share Conversion Reform 187
~ 8-2. Purchase of Non-tradable Shares 191
~ 8 -3. Purchase of A-Shares by Strategic Investors 197
A. The Measures for Strategic Investment Generally 197
B. Application Procedures 200
~ 8 -4. Insider Trading 203
~ 8 - 5. Takeover Defense 206
~ 8 - 6. Asset Sale of Listed Companies 209
An Additional Note 212
Chapter 9 Takeover of Listed Company ( Part II) 213
~ 9 -1. Application to the CSRC Generally 215
~ 9 - 2. Financial Advisor 218
~ 9 -3. Concerted Action and Controlling Rights 225
~ 9 -4. Reporting and Disclosure Requirements at
the 5% Ownership Threshold 228
~ 9 -5. Tender Offer at the 30% Ownership
Threshold 231
A. Tender Offer Generally 231
B. Tender Offer Prices and Methods of Payment 234
C. Acquisition by Agreement 235
D. Indirect Takeovers 237
E. Exemption from Tender Offers 239
An Additional Note 243
Chapter 10 Acquisitions of Non-listed Companies 245
~ 10 -i. The Examination and Approval System
Generally 247
~ 10 -2. Project Verifications by the NDRC or Its
Local Delegates 250
~ 10 -3. Transaction Approvals by the MOFCOM
or Its Local Delegates 258
A. Documents Required for Equity Acquisitions 258
B. Documents Required for Asset Acquisitions 261
~ 10 -4. EJV Contracts and Articles of Association
for EJVs and WFOEs 265
~ 10 - 5. Purchase Price and Payment Requirements
Generally 268
~ 10 - 6. Antitrust Reviews and Approvals 272
A. Onshore M&A Transactions 272
B. Offshore M&A Transactions 274
C. Exemptions 276
~ 10 - 7. Set-up Registration 277
An Additional Note 279
Chapter 11 State-owned Property and
Employment Issues 281
~ 11 - 1. Special Rules for Acquiring State-owned
Properties 283
A. The Reorganization Provisions Generally 283
B. The Property Rights Measures Generally 288
~ 11 -2. Special Considerations of Employment Issues 293
A. Employment Issues Generally 293
B. Non-compete Agreement and Dispute
Settlement 299
An Additional Note 300
Appendix 303
Provisions on Acquisitions of Domestic Enterprises
by Foreign Investors 305
References 343

本書共有344頁