China: New Rules on Foreign Investment Through Merger or Acquisition

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1 China: New Rules on Foreign Investment Through Merger or Acquisition The new Provisions on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (the "New M&A Rules") were promulgated on August 8, 2006 and became effective on September 8, Though potentially an opportunity to encourage M&A in the People's Republic of China ("China" or the "PRC"), the revisions to the previous Interim Provisions on Mergers and Acquisitions for Domestic Enterprises by Foreign Investors (the "Old M&A Rules") focus primarily on controlling and monitoring round-trip investment and strengthening the regulatory authority of certain agencies. Significant questions are raised as to the intent and procedural implementation of new provisions that attempt to strengthen government regulation of cross border M&A transactions. Highlights The basic approval requirements remain. Acquisitions of equity of non-foreign-invested enterprises in the PRC and assets of PRC enterprises by foreign acquirors must be approved by the Ministry of Commerce ("MOFCOM") or its provincial delegate authority. The acquisition value must be appraised by an independent Chinese appraisal organization. Expansion of MOFCOM's authority. MOFCOM is now given broad authority to unwind transactions resulting in foreign "control" of a company in a "key industry", an industry that affects economic security or a company owning a wellknown trademark or established Chinese brand. Transactions that may result in such control must be reported to MOFCOM. A definition of "control" is not included, and the concepts and procedures for the exercise of this power remain very unclear. Piercing the Corporate Veil. Popular structures allowing Chinese investors to hold shares in PRC companies through offshore vehicles become subject to new disclosure requirements. Structures that avoid investment or foreign exchange controls are explicitly prohibited. No Preferential Treatment for Round-Trip Foreign Investment. When overseas companies with PRC shareholders carry out acquisitions in the PRC under the New M&A Rules, the target company qualifies for the benefits of foreign-invested enterprises only if non-prc shareholders make new capital contributions equal to at least 25% of the enlarged capital of the target company. Authorization of Share Swaps. The New M&A Rules enable acquisitions through share swaps between foreign acquiror and PRC target. However, the foreign party must be a listed company or a special purpose vehicle established by PRC shareholders for the purpose of listing PRC assets.

2 Timing for Share Swap. A share swap must be completed within 6 months after MOFCOM approval if the foreign party is a listed company. If the foreign party is a special purpose vehicle, it must complete the share swap and its overseas listing within one year after approval. If the deadline is not met, the MOFCOM approval becomes void. CSRC's Approval. The overseas listing of the special purpose vehicle involved in the share swap must be approved by the China Securities Regulatory Commission ("CSRC"). Areas of Continuity The basic scope of the New M&A Rules remains the same as before. The New M&A Rules apply to the acquisition of, or subscription for, equity interests in nonforeign invested enterprises ("Domestic Companies") and the purchase of assets of Domestic Companies or the acquisition by foreign investors of assets of PRC enterprises that are injected into a foreign invested enterprise. The New M&A Rules also preserve the anti-trust provisions of the Old M&A Rules without modification, but it is expected that this regime will be revised to comply with the PRC Anti- Monopoly Law, after this law is adopted. Like the Old M&A Rules, the New M&A Rules were issued by MOFCOM, the State Administration for Industry and Commerce ("SAIC"), the State Administration of Foreign Exchange ("SAFE") and the State Administration of Taxation. In addition, the State-Owned Assets Supervision and Administration Commission and CSRC were added to the list of promulgating authorities, signalling a greater role for these agencies in M&A transactions. Additional Controls and Standards for Foreign Acquirors with PRC Shareholders Disclosure Obligation Article 15 of the New M&A Rules requires that the parties to a merger or acquisition must affirmatively state whether there is an affiliate relationship 1 between them. If two parties to the transaction are actually controlled by the same person 2, the 1 2 The New M&A Rules do not define "affiliate relationship". Section 217 (4) of the Company Law provides that an "affiliate relationship" is the relationship between a controlling shareholder, actual controlling person, director, supervisor or senior management personnel of a company and an enterprise directly or indirectly controlled by such person, or any other relationship which may result in the transfer of the interests of the company. The New M&A Rules do not define "actual control". Section 217(3) of the Company Law defines "actual controlling person" as a person who is not a shareholder but is able to dominate a company through an investment relationship, agreement or other arrangement. There is a much broader definition of "control" under SAFE Notice 75. According to Notice 75, a domestic resident has "control" when it acquires the operating rights, profit rights or the decision-making rights 2

3 identity of the actual controlling shareholder, the purpose of the transaction and whether the appraisal value represents fair market value must also be disclosed. Article 15 specifically prohibits attempts to avoid the disclosure requirement through the use of trusts, nominees or other methods. This information will allow SAFE to enforce compliance with Notice 75 3, which requires PRC investors to register with SAFE the establishment of overseas companies established with PRC assets or equity interests in order to obtain overseas equity financing, as well as inbound investments made by such companies. Post-Acquisition Qualifications of FIEs Like the Old M&A Rules, the New M&A Rules require that, post acquisition, a Domestic Company must have at least 25% foreign investment to qualify for the favorable treatment reserved to foreign-invested enterprises ("FIEs"). Now, however, Article 9 adopts a "look-through" principle for determining whether the postacquisition company reaches this threshold. If a Domestic Company is acquired by an offshore company that is actually controlled by a Domestic Company or PRC enterprises or individuals ("Domestic Shareholders"), the acquired company will not be treated as a FIE unless (1) the offshore company subscribes to an increase in capital, (2) the additional capital contribution by the offshore company represents 25% or more of the increased registered capital of the PRC company and (3) the shareholding of foreign investors other than the actual controlling shareholder represents at least 25% of the registered capital of the PRC company. Thus, MOFCOM (as approval authority), SAIC (as company registration authority), SAFE (with regard to the foreign exchange treatment of FIEs) and the State Administration of Taxation (with regard to the tax treatment of FIEs) will "look through" the offshore company to determine the FIE status of the PRC company. Note that this look-through principle applies to all offshore companies "established by" Domestic Shareholders, even if the Domestic Shareholders do not "actually control" the offshore company. Also, the New M&A Rules do not clarify whether the minimum 25% shareholding of other foreign investors is determined by aggregating both direct and indirect equity holdings of non-domestic Shareholders, and whether such indirect holdings are verified on an ongoing basis. MOFCOM Approval for Acquisitions of Affiliates of Domestic Shareholders If an offshore company established or controlled by a Domestic Shareholder acquires a Domestic Company affiliated with such Domestic Shareholder, the through acquisition, trust, voting rights, re-purchase or convertible bonds. It is not yet clear which definition MOFCOM and SAFE will apply going forward. 3 Notice Huifa [2005] No. 75 regarding the Relevant Issues on Foreign Exchange Control relating to Corporate Financing and Inbound Investment by Domestic Residents through Their Offshore Special Purpose Companies dated October 21,

4 acquisition must be approved by MOFCOM. Unlike M&A transactions in general, there is no specific delegation of this approval authority to local authorities under MOFCOM. If central government approval is required, this will lengthen the time within which a transaction can be completed. It is specifically stated that the approval requirement for such affiliate transactions cannot be avoided by using a foreign invested company as the acquiror or through other methods. How this anti-avoidance provision will be enforced is unclear. Except in certain industries, acquisition of equity interests by FIEs do not require MOFCOM approval. The New M&A Rules stop short of instituting a special approval procedure for such onshore acquisitions. Potentially, investments by Domestic Shareholder controlled overseas companies in FIEs will have to be submitted under the New M&A Rules, even though they do not fall under the scope of the New M&A Rules, if a subsequent onshore acquisition is intended. Share Swaps Chapter 4 of the New M&A Rules carefully regulates the conditions under which onshore investors can exchange or "swap" equity in PRC companies for equity in offshore companies. Companies Eligible for Share Swaps Article 29 sets forth the types of overseas companies that qualify to swap their shares with PRC companies. Such companies must be legally established in a jurisdiction with a comprehensive securities exchange system, and the shares exchanged in the transaction must be freely transferable, free from encumbrances, listed on a securities exchange and "steadily" traded during the last 12 months. There is no guidance as to what is meant by "steadily traded". Companies traded on overthe-counter markets are not permitted to use their shares as consideration. The listed securities and steady trading requirements do not apply to special purpose vehicles ("SPVs"). Article 39 defines an SPV as an offshore company that is formed by Domestic Companies or PRC individuals for the purpose of listing a Domestic Company that they actually own on an overseas stock exchange. Foreign companies that are neither listed on a securities exchange nor controlled by a Domestic Company or PRC individual are not referred to in the New M&A Rules and do not seem to qualify for share swaps. Minimum Valuation for SPVs Article 43 requires that the overseas listing price for the shares of the SPV cannot be less than the valuation of the onshore equity interest determined by a PRC asset appraisal company in the share swap that preceded the listing. Although the remit of the asset appraisal company is limited to valuing onshore assets only, its valuation will thus effectively set a floor for the listing price of the SPV's shares. This requirement will distort the pricing process for initial public offerings ("IPOs") of SPVs and may cause IPOs to fail if the market values the SPV at less than the asset appraisal agency's valuation of the underlying Domestic Company. The 4

5 New M&A Rules provide no mechanism for conducting a new valuation of the Domestic Company in such case, even if between the initial valuation and the IPO, events occurred that could reduce the value of the Domestic Company. Mandatory Appointment of M&A Consultant In any share swap transaction, the Domestic Company or its shareholders must engage a PRC registered professional organization as "M&A Consultant". The M&A Consultant is tasked with conducting due diligence on the application documents for the transaction and the financial standing of the offshore company, as well as reviewing the transaction application documents for compliance with certain provisions of the New M&A Rules. The M&A Consultant's report must be submitted to MOFCOM as part of the application for approval of the share swap. In addition, in a share swap transaction with an SPV, the M&A Consultant must produce its own separate appraisal of the price at which shares of the SPV will be issued in the IPO. The rationale for these requirements seems to be that Domestic Companies in share swaps should obtain investment banking advice and regulatory guidance similar to that provided by an M&A adviser or IPO sponsor, and which is separate from the advice on which the foreign party to the share swap relies. The New M&A Rules are silent on who qualifies to be an M&A Consultant. The primary qualification for becoming an M&A Consultant is to have the ability to analyze the legal systems of the jurisdiction of listing and incorporation of an SPV. Apart from that requirement, it is unclear whether a licensing system will established to designate M&A Consultants and whether foreign participation will be permitted. Control Over Transactions by Parties to Share Swaps During the period between MOFCOM approval of the share swap and completion of the share swap or the listing of the SPV, the Domestic Company is prohibited from distributing profits to shareholders, granting security to affiliates or making payments in connection with share transfers, capital reductions or liquidations. The proceeds from the listing of the SPV fall under SAFE supervision. They must be remitted into China in the form of debt, equity or payment of consideration for acquisitions according to a remittance plan filed with SAFE. Completion Deadlines for Share Swaps The New M&A Rules also grant MOFCOM and SAIC broad authority to unwind share swaps if completion deadlines and procedural requirements are not met. Share swaps are approved by MOFCOM and registered with SAIC as the government authorities with oversight over the Domestic Company involved, before they can be completed by the issuance of shares in the relevant overseas company. However, the MOFCOM approval and SAIC registration are only temporary. In a share swap with an overseas listed company, overseas investment procedures under separate MOFCOM and SAFE rules (including Notice 75) must be carried out and the transaction completed within six months after MOFCOM approval of the share swap; otherwise the MOFCOM approval becomes void, and the SAIC registration must revert to the original registered capital and shareholding. 5

6 If the share swap involves an SPV, the overseas listing of the SPV must be completed within one year after MOFCOM approval of the share swap and reported to MOFCOM for issuance of a definitive approval certificate. If the listing is not completed and the definitive MOFCOM approval not obtained within this one-year period, the initial MOFCOM approval becomes void and the SAIC registration must revert to the original registered capital and shareholding. For this purpose, Articles 34 and 46 require Domestic Companies to execute in advance documents required to restore the pre-acquisition share structure, including equity interest transfers, amendments to the articles of association of the Domestic Company and the necessary application for the transfer of equity interest. What is not clear from these provisions is whether these "restorative" documents are selfexecuting or whether SAIC and MOFCOM must actually make a determination to restore the pre-transaction structure. The time limits under the New M&A Rules heavily constrain share swap transactions. Six months for completion of a share swap with a listed company may be insufficient if, in addition to PRC requirements, complex overseas approval procedures apply or if the transaction involves a complex restructuring. The one-year time frame for listing the SPV involved in the share swap means that such transactions are only available for investments shortly before IPO, but not for early stage investments. If the IPO fails or is delayed, the transaction cannot be completed on the basis of the existing MOFCOM approval, but must be completed unwound. These constraints will incite investors to avoid share swaps. Alternatively, Domestic Shareholders can obtain shares in overseas companies for consideration other than equity in Domestic Companies, or Domestic Shareholders will hold shares only in the PRC investee companies of the offshore company, followed by a share swap once a firm IPO plan has been adopted. CSRC Authority over SPV Listing Article 40 provides that CSRC approval is now required to list any SPV on an overseas stock exchange, whereas previously, since 2003, no PRC government approval was required to list an overseas company with PRC assets. CSRC has begun to assert its authority over SPV listings, with reference to not only the New M&A Rules, but also the 1997 State Council Circular on Further Strengthening Administration of the Issue and Listing of Shares Outside China (which require CSRC approval for overseas IPOs by all Chinese-controlled issuers). On its website, CSRC has posted a detailed list of documents to be submitted to CSRC for approval of overseas listing of SPVs, including the following major documents that are not required for MOFCOM approval of the share swap: an application report which contains, inter alia, a risk analysis and business development objectives; an analysis and report by an overseas investment bank; and a PRC legal opinion. 6

7 Authority to Unwind Transactions in Strategic Industries and Companies Whereas MOFCOM always had the right to not approve a transaction, the New M&A Rules now provide that MOFCOM also has the authority to unwind certain transactions. Similar to the requirements of the U.S. Exon-Florio amendment to the Defense Production Act of 1950 (the "Exon-Florio Amendment"), the new Article 12 creates a voluntary reporting requirement for transactions in which foreign investors acquire actual control of a company in a "key industry" or industry that may affect the economic security or a well-known trademark or established Chinese brand. However, the New M&A Rules provide very little guidance as to what industries are deemed "key" or what constitutes an established Chinese brand. Unlike the Exon-Florio Amendment, which applies prior to the consummation of a merger, the New M&A Rules grant MOFCOM the authority to unwind a transaction in the event MOFCOM discovers the completion of a transaction that should have been, but was not, reported. In the event the parties fail to report an Article 12 transaction to MOFCOM, MOFCOM has the authority to request that the parties terminate the transaction, unwind the transaction after it has been completed or take any steps necessary to mitigate the effects of the transaction on the economic security of the State. This provision creates a significant incentive for acquirors to report any transaction that may be deemed to fall under Article 12, as there is no safe harbor for parties who reasonably believed they had no obligation to report. Despite the broad scope of transactions that could be affected by Article 12, and recent controversies over foreign private equity investments in machinery and financial services industries, MOFCOM may not be eager to aggressively exercise this new-found power. Like the anti-trust review mechanism under both the Old and New M&A Rules, MOFCOM has imported a regulatory tool from foreign jurisdictions, but is not yet sure how to handle it, and may not want to apply it except in particularly flagrant cases. * * * This memorandum is not intended to provide legal advice with respect to any particular situation and no legal or business decision should be based solely on its content. Questions concerning issues addressed in this memorandum should be directed to any member of the Paul Weiss China Practice Group, including: Jeanette K. Chan jchan@paulweiss.com (852) or (86-10) John E. Lange jlange@paulweiss.com (852) Marcia Ellis mellis@paulweiss.com (852) Hans-Günther Herrmann hherrmann@paulweiss.com (852) Corinna Yu cyu@paulweiss.com (86-10) Paul, Weiss, Rifkind, Wharton & Garrison LLP 7