In 2021, the private equity (PE) industry in the People’s Republic of China (China or the PRC, which, for the purpose of this chapter only, excludes Hong Kong SAR, Macau SAR and Taiwan) saw a strong recovery, in terms of both the number and the total value of PE-related transactions. However, in the first half of 2022, the PE industry stagnated with the harsh COVID-19 lockdown, the war in Ukraine, and an expected recession in the US and globally. PE-backed M&A transactions, although slowly increasing, are still less common in China compared with the US or UK markets.
The same upward and downward trends have also been observed in PE-backed exit transactions, among which, IPOs and trade sales still rank as the most popular exit routes for PE investors. It is reported that in the first quarter of 2022, PE exits by way of IPO constituted approximately 80% of all exit transactions, and IPO exits in the A-share market constituted over 80% of all IPOs in the first quarter of 2022.
Notably, China has made continuous efforts to boost its A-share market with a focus on achieving autonomy and control of key technologies in industries such as renewable energy, semiconductors, and other high-end manufacturing, among others. As to the overseas capital markets, the implementation of the Holding Foreign Companies Accountable Act (HFCAA) by the US Securities and Exchange Commission has caused many Chinese companies with red-chip ownership or variable interest entity (VIE) structures to shelve or delay their US listing plans and shift their IPOs to the Hong Kong or China securities markets. Those developments, in the long run, may affect exit channels and opportunities for private equity/venture capital (PE/VC) investors.
In 2021 and the first quarter of 2022, information technology (IT), healthcare and life sciences, semiconductor and electronic equipment, and the internet, continued to be the most popular industries by both number and value of PE transactions in China. The IT industry led in the number of PE transactions. The healthcare and life sciences sector attracted the most PE investment capital due to the COVID-19 pandemic and relevant policies in response to the pandemic. In addition, since the Chinese government has committed to developing its domestic semiconductor industry in recent years, both the number and the total value of investments in the semiconductor industry have outnumbered those in the internet industry.
New Administration Scheme for Foreign Investments
Investment-wise, the Foreign Investment Law which took effect in January 2020 has officially established a new administration scheme for foreign investments based on “national treatment” subject to a “negative list”, and has replaced the ex ante approval or filing (with the Ministry of Commerce or its local counterparts – MOFCOM) system with a much more simplified ex-post information reporting scheme. For investments not included on the negative list, a generally equal regulatory regime is applicable to transactions by foreign and domestic investors. Foreign investments that do fall within the negative list will be subject to the restrictions or prohibitions specified therein (see 3.1 Primary Regulators and Regulatory Issues). Meanwhile, China has continued its effort to shorten the negative list (eg, the 2021 version further opened up the automobile manufacturing sector to foreign investment).
Enhanced Competitiveness of the A-share Capital Market
Following the launch, in the first half of 2019, of STAR Board and the Chinese Deposit Receipts (CDR) scheme, in 2021, China further set up the Beijing Stock Exchange serving innovative middle and small-sized enterprises. The registration-based IPO system previously launched on STAR Board has been implemented on ChiNext Board and the Beijing Stock Exchange, and is expected to be further expanded across the whole capital market as soon as later this year.
Additional legislative efforts include, among others, that offshore investors may use the Qualified Foreign Limited Partner (QFLP) pilot policies in certain regions such as Shanghai and Shenzhen to participate in private placement financing of listed companies through investing in PRC-formed PE funds. The China Securities Regulatory Commission (CSRC) also clarified A-share market IPO rules for offshore companies with red-chip ownership or VIE structures, and allowed IPO applicants to keep shares with different voting rights, pre-IPO employee stock ownership plans (ESOPs) or valuation adjustment mechanism clauses under certain circumstances.
IPOs through the Overseas Capital Market Remain Stagnant
Exits through the overseas capital market (a popular route, especially for technology companies) face more challenges. The stock prices of many Chinese companies plunged due to the uncertainty caused by the implementation of the HFCAA (see 1.1 M&A Transactions and Deals). Furthermore, China has strengthened its regulations on companies seeking listings in the overseas market. According to the amended Measures for Cybersecurity Review, which took effect in early 2022, “internet platform operators” (this definition remains to be further clarified) possessing the data of more than one million individual users have to file for cybersecurity review with the Cyberspace Administration of China before seeking listing abroad (Hong Kong is generally not considered as “abroad” for the purpose of this amendment, yet the authority may at its discretion still initiate a cybersecurity review on a national security basis). Furthermore, new CSRC rules issued for public comment in December 2021 proposed to adopt a new filing-based regulatory regime for all overseas listings, under which Chinese companies seeking new securities listings in overseas markets are required to file with the CSRC after they submit the application to the competent regulator of the intended listing. The long-debated VIE structure widely adopted to circumvent foreign investment restrictions, may as a result again face scrutiny, although the CSRC did indicate in a press conference that VIE-structured companies “compliant with applicable PRC laws and regulations” (to be clarified) can effect an overseas listing after filing with the CSRC.
Proposed Amendment to Company Law and Enhanced Investor Rights
China released draft amendments to the Company Law for public comment in December 2021. Among other major changes, different classes of shares are proposed to be introduced to joint stock companies to accommodate a more flexible corporate structure and diverse shareholders’ rights in terms of voting, pre-emptive, right of first refusal/offer, co-sale, share transfer, and liquidation preference, among others. These changes, if enacted, are expected to provide better protection for investor rights, and improve PRC companies' competitiveness in global capital markets.
Investor rights have also been given more recognition by China’s recent judicial practices. Notably, such previously controversial PE/VC investment terms as the valuation adjustment mechanism (VAM) and redemption arrangement have received more support from competent PRC courts and administrative agencies. The Summary of the National Court’s Work Conference on Civil and Commercial Trial released by the Supreme People’s Court in November 2019 (which sets out court trial guidance on typical cases) generally confirmed the validity of VAM agreements between a target company and its investors, yet the enforceability of a specific VAM or redemption arrangement is still subject to deal-specific considerations and should be evaluated on a case-by-case basis.
New AML Law and Strengthened Antitrust Enforcement
In June 2022, China officially announced the first amendment to its Anti-monopoly Law, effective from 1 August 2022, almost 14 years into its antitrust regime and after two rounds of draft amendments for public comment. Notably, the amendment significantly increased the maximum fines for failure to file business concentrations from the current RMB500,000 to 10% of the total revenue in the previous year (if the transaction has an anti-competitive effect) or RMB5 million (if it does not have such an effect). Furthermore, China proposed to raise filing thresholds for business concentrations in draft implementation rules subsequently released, from the current RMB10 billion/RMB2 billion to RMB12 billion/RMB4 billion (for the global turnover/local Chinese turnover of the businesses combined), and from RMB400 million to RMB800 million (for the single-party turnover). An additional threshold was added targeting M&A transactions by a giant acquirer which had a local Chinese turnover in the previous fiscal year of over RMB100 billion, of a smaller acquiree with a valuation of no less than RMB800 million, plus over one third of its turnover in the previous fiscal year generated from China.
Similar to Western trends, the Antitrust Bureau has, in recent years, seen a focus on technology companies and more aggressive enforcement with blizzard penalties imposed. Penalties involving negative control of target companies by minority investors (including PE/VC funds) also saw an increase. Additionally, antitrust enforcement has started to target VIE-structured companies (which were previously shielded from AML review) in the past two years.
Formation and Operation of PE Funds
In China, a PE fund may be established in the form of a limited partnership, a company or contractual arrangements, among which, a limited partnership is the most popular form in terms of both the number and scale. PE funds formed under Chinese laws are generally administered by a self-regulatory industrial association, namely, the Asset Management Association of China (AMAC), which is in charge of the registration and filing of fund managers and the funds under their management. Depending on the organisational form, PE funds should comply with such applicable PRC laws and regulations as the Partnership Enterprise Law, the Company Law, the Trust Law and/or the Civil Code, which govern, among other matters, the formation, governance structure, operation, liquidation and distribution of PE funds. PE fundraising and investment activities are also subject to the various rules and regulations released by the CSRC and AMAC. The AMAC has also introduced various restrictions on the business activities of PE funds in China. For example, PE funds are generally not allowed to engage in regular or operational private lending, debt investments in a disguised form of equity investment (except for bridge loans for one year provided to target companies to facilitate equity investment) or secondary market investments, without explicit permission to do so under the applicable rules. In addition, RMB PE funds are required to have an operating term of no less than five years (actually, seven years or longer is encouraged).
Foreign investors may invest in PRC-formed PE funds (“Funds with Foreign Investments”) in the following ways:
In addition to the requirements applicable to RMB PE funds, Funds with Foreign Investments must also comply with relevant foreign investment restrictions, such as the negative list and foreign exchange controls.
Antitrust Filing/Merger Control
The Antitrust Bureau is the government agency in charge of the antitrust review of business concentrations or merger control under the PRC antitrust law regime, which generally includes the Anti-monopoly Law and the Interim Provisions on the Examination of Business Concentrations, among others. A PE-backed transaction will be subject to merger control review (AML filing) if it involves the acquisition of control over the target company, and if the revenue of the parties involved meets the relevant thresholds.
It is noteworthy that the Chinese government has stepped up antitrust law legislation and enforcement since 2020. See 2.1 Impact on Funds and Transactions.
Restrictions on Foreign Investments
As mentioned in 2.1 Impact on Funds and Transactions, investments made by foreign PE funds and Funds with Foreign Investments in China are subject to restrictions or prohibitions under the negative list. The negative list has divided business sectors into two different categories: restricted and prohibited. Foreign PE funds may still make investments in the restricted sectors after satisfying certain requirements (eg, foreign-invested medical institutions are only allowed to be formed as Sino-foreign joint ventures rather than wholly foreign-owned enterprises) and with prior approval or sign-off by the competent regulatory authorities in charge of the particular industries (if applicable). No foreign investor is allowed to hold equity interests either directly or indirectly in any target company engaged in any prohibited sector (eg, online publishing, online audio-visual programme services and genetic diagnosis and treatment). To circumvent the negative list, some foreign investments have been made through a VIE structure (which has been widely adopted in the TMT industry), as opposed to direct or indirect stock ownership structures. This VIE structure has, however, been facing more challenges from the Chinese government in recent years. For example, as mentioned in 2.1 Impact on Funds and Transactions, China is proposing to adopt a new filing-based regulatory regime for the overseas listing of companies with VIE structures, imposing more uncertainties for companies adopting such a structure.
National Security Review
The Chinese government established a national security review mechanism on foreign M&A transactions in 2011, according to which, an M&A transaction in which foreign investors collectively take control of a PRC-formed company engaging in sensitive sectors will be subject to a PRC national security review led by MOFCOM and the NDRC. The national security review scheme was further confirmed by the Foreign Investment Law, which came into effect in January 2020. Furthermore, the Rules on Security Review of Foreign Investment, which came into effect in January 2021 have systematically specified the type of foreign investments and sensitive industries generally subject to a security review, the authorities in charge of the review, as well as the scope and procedure of the security review. However, except for a few industries expressly specified in the relevant rules, the Chinese government has not yet released detailed guidance on the list of “sensitive industries” that are subject to security review.
In practice, a foreign PE investor may need to consult with the competent regulatory authorities on a case-by-case basis if it plans to perform a transaction involving a change of control. The most recently publicised case in connection with a national security review of foreign investments was Yonghui Superstores’ acquisition of Zhongbai Holdings Group in 2019.
Foreign Exchange Controls
In general, transactions by foreign investors are subject to various foreign exchange controls and restrictions, including (without limitation) restrictions on the usage of the funds available in target companies’ capital accounts (which are generally not allowed to be used for external loans, nor to build or purchase real properties that are not for self-use), and those on cross-border loans and guarantees between PRC target companies and their foreign shareholders. That said, China has made certain efforts to streamline foreign exchange control and administration systems in recent years to provide more flexible fund-flow to foreign investors. In October 2019 for example, the State Administration of Foreign Exchange (SAFE) lifted restrictions on non-investment types of FIEs using capital account funds to make onshore equity investments, as long as the investment project is true and complies with the negative list for foreign investments and other relevant rules.
Other Rules and Regulations
Various other PRC laws and regulations may be applicable to PE-backed transactions. Special qualifications for investors, and approval, registration and/or filing procedures, as well as specific information disclosure requirements, may be applied, depending on the various aspects of the target company, such as its business sector, whether it is a public company, and whether it involves a special ownership structure (such as a PRC state-owned enterprise).
The scope and level of legal due diligence in an M&A transaction is generally flexible, and is highly dependent on such factors as the target company’s development stage, the corporate structure, whether an auction process is involved, the bargaining power of the relevant parties, and other dynamics of the transaction. In general, the higher the transaction value or equity stake involved, the more detailed the legal due diligence tends to be. For listed companies, special rules should be carefully reviewed and evaluated to ensure compliance, particularly those governing insider information and disclosure.
Routine Due Diligence
A routine PRC due diligence exercise generally focuses on customary issues, such as incorporation and the history of the target company, the shareholder structure, operational licences and permits, material assets, material contracts, labour and employment, environmental protection, production safety, disputes and legal proceedings. Depending on the industry characteristics of the target company, some PE investors may request to conduct separate due diligence on specific aspects such as Foreign Corrupt Practices Act investigations, environmental health and safety assessments, patent stability assessments, and more recently, the target’s privacy and data security.
Regulations in Emerging Industries
It is noteworthy that the Chinese government has continuously strengthened regulations on such emerging industries as big data, cloud computing, streaming media, biotech and the internet, with a focus on tackling "hot" issues involved (eg, unfair competition from internet giants, personal information protection, data privacy and cybersecurity). In 2021 and the first half of 2022, China launched the Data Security Law and the Personal Information Protection Law and released a series of implementation rules (or drafts) on cybersecurity review and data export, etc. PRC internet companies are recruiting more legal talent in connection with data compliance specifically. These hot issues have gradually become the focus of legal due diligence in M&A transactions involving such emerging industries.
In most M&A transactions in China, the buyers generally tend to engage their own counsel to conduct independent due diligence on the target companies. However, when the exit is conducted through a bidding process and/or when the seller only holds a minority interest in the target company and the target company or controlling shareholder is less willing to co-operate with a third party’s due diligence, the seller would strongly prefer a vendor due diligence report in order to control costs and the timetable of its exits. The buyer and its advisers are generally less willing to provide full credence to the vendor due diligence report and will be more careful in dealing with the representations and warranties from the seller side. For example, they may request the incorporation of the vendor due diligence report as part of the seller’s representations and warranties.
Acquisitions by PE investors are typically carried out through either a private sale agreement or an auction process. Judicial auctions are not commonly seen in China. The auction process is less likely to be adopted if the target company is a public company, as there is a higher possibility of information leakage, which will affect the transaction price. If the target company is a public company, transactions are often completed through private placements, block trading or tender offers, in addition to private agreements.
In a privately negotiated transaction, the parties usually set out the key commercial terms in the term sheet (which is usually non-binding); they may open new issues or reopen the terms addressed in the term sheet based on the investors’ due diligence findings and other deal dynamics during the documentation process. In an auction sale, the investors tend to focus on more essential terms in their offers, in an effort to secure the transaction. If the target company is a public company, there is generally less flexibility in the transaction structure and terms, due to the more stringent rules governing insider information and shareholders' rights, among other matters.
The structure of the PE-backed buyer will be determined by various factors, including the structure of the transaction as a whole, tax efficiency, liability segregation, information disclosure, and efficiency of management. In general, China has a less flexible regulatory regime for the incorporation, organisation and governance of relevant legal entities. A PE fund in China is normally formed as a flow-through limited liability partnership under PRC laws, and an additional structure would generally increase management costs and other potential tax burdens. Such a fund therefore more often participates directly in an acquisition, as a direct buyer. Foreign PE investors usually prefer to establish a special-purpose vehicle or SPV for an acquisition (most commonly in tax havens such as the British Virgin Islands or Mauritius), and are less likely to be a direct buyer.
In general, China has a fairly stringent financing system that involves expensive financing costs and high qualification requirements, especially for a private (as opposed to state-owned) borrower. As such, it is not common for PE investors to use leveraged bank loans to complete a transaction in China. Furthermore, sellers in China are generally reluctant to accept a closing condition based on obtaining financing or equity commitment letters from the investors.
As the PE industry is relatively young in China, the majority of PE funds lack adequate experience in post-closing management, and their value added to the target companies is not yet apparent. Furthermore, following a transaction involving a change of control, the target company is normally required to operate for two or three more years before its IPO, depending on the board on which the target company proposes to get listed, and the controlling shareholder is generally required to be locked up for three years after an IPO (as opposed to one year for minority shareholders). As such, most PE investors (except for some industrial funds or government-backed M&A funds) tend to take a minority stake in a transaction in China. With the development and materiality of the PE industry in China, however, there is a slow trend towards PE funds becoming more willing to hold a majority stake in China.
Transactions in China involving a consortium of PE investors are not uncommon, partially driven by the shortage of quality target companies and soaring valuations for a limited number of unicorn enterprises in previous years. Depending on the deal-specific dynamics of the transaction, a buyer consortium led by PE funds may include their major limited partners, other affiliates, existing investors of the target company and unrelated third-party co-investors.
Completion accounts, fixed price and estimated valuation with performance-based adjustments are more typically used to price PE transactions involving a non-public company in China. For a transaction involving a public company, the purchase price is generally determined based on the trading price of the company’s shares on the securities market, subject to certain statutory restrictions.
When there are greater uncertainties for the post-closing performance of a target company, the transaction parties may adopt a more flexible consideration mechanism, such as performance-based VAMs, earn-outs and/or deferred payment. These kinds of flexibilities are not uncommon in China’s PE transactions (but are rarely seen in public target companies).
Each of these consideration mechanisms reflects, to some extent, the risk allocations between the seller and the buyer in a transaction. On the one hand, a PE seller generally prefers a fixed price, in order to avoid uncertainties and limit the period from signing to closing as much as possible. On the other hand, a PE buyer would generally like to adopt completion accounts, price with VAMs, earn-outs and/or deferred considerations as protections against future uncertainties.
In general, a PE seller and a corporate seller do not disagree too much in terms of consideration mechanisms, while a corporate buyer (compared to a PE buyer) is more likely to offer a higher price and better consideration in favour of the seller, given the potential strategic advantages and synergies with the target company.
The locked-box consideration structure is not commonly seen in the PRC PE investment market. The relevant discussions and practices with respect to leakage during the period from the pricing date to the closing date are very limited.
In order to determine the relevant accounts in a timely manner in the case of a completion accounts mechanism, and to avoid disputes, the parties usually specify the composition of pricing-related items and the specific process to follow in order to determine the value of such items in the transaction documents. For example, the transaction documents typically provide the following, among others:
The closing conditions of PE transactions vary significantly, depending on the deal-specific dynamics. In general, basic closing conditions for PE investments commonly include power and authorisation to execute and perform the transaction, complete legal title of the subject shares, the obtaining of internal and external approvals or consents, true and complete representations and warranties upon signing and closing, no material adverse changes from signing to completion, etc. Financing of the closing funds is not commonly seen as a closing condition in China.
PE investors may require additional closing conditions, based on their due diligence review and other deal-specific concerns. For example, they may request the completion of a certain restructure, the transfer of significant intellectual properties, and the rectification of certain non-compliant activities, as may be applicable. For transactions involving cross-border fund-flows, conditions may be triggered from a forex control perspective (eg, opening of certain special-purpose foreign exchange accounts by the PRC sellers and overseas direct investment (ODI) procedures with competent PRC government authorities, as applicable).
Whether third-party consent will be required as a closing condition mainly depends on the target company’s contractual obligation in this respect and whether failure to obtain this will have a material adverse impact on the target company. In practice, commercial banks or certain major customers of a target company may require prior consents in the case of a material change in the target company (such as a change of control); otherwise, the banks may accelerate the repayment of loans and the customers may terminate their contracts with the target company early, or cancel the target company’s vendor qualifications, which may materially affect the target company.
“Hell or high water” undertakings are relatively rare in China. Instead, if the parties reasonably believe that a certain regulatory condition (such as government approval for merger control, a national security review or foreign investment in restricted sectors, registration by the SAMR or the opening of certain special-purpose foreign exchange accounts, etc) is necessary prior to the closing, they would usually accept such a requirement as a closing condition. If such a requirement cannot be fulfilled prior to the agreed long-stop date, the non-breaching party will generally be allowed to terminate the purchase agreement without liability, usually without a break fee. To avoid abuse, the purchase agreement is usually specific to the regulatory condition, and will typically oblige the relevant party(ies) to make an effort to fulfil the regulatory condition as soon as practically possible.
In conditional transactions with a PE-backed buyer in China, it is not common to see break fees in favour of the sellers. In limited situations where break fees do apply, a PE investor is more likely to ask for reverse break fees, subject to a deal-by-deal negotiation. In a PRC law-governed transaction, break fees are often treated as liquidated damages in nature, which in principle should not exceed 30% of the non-breaching parties’ actual losses, according to prevailing judicial practice. Therefore, if the break fee is set too high in a transaction, the breaching party is likely to request that the courts reduce it to a reasonable amount.
Termination of an acquisition by a PE seller or buyer normally occurs prior to the completion of the proposed transaction or the receipt of necessary government approvals (if applicable), and is typically triggered by circumstances such as the occurrence of material adverse events, the discovery of undisclosed material negative matters, significant policy changes, and failure to satisfy closing conditions before the long-stop date, among others.
PE buyers tend to require a comprehensive and detailed list of warranties and specific information disclosures from the sellers in the transaction documents. In addition to the indemnifications provided by sellers for their warranties and certain covenants, PE investors usually try to minimise their investment risks by building in price adjustment mechanisms, deferred payments, escrow arrangements, and preferential and flexible exit mechanisms in the transaction documents (such as anti-dilution rights, tag rights, drag rights, put options and redemption rights, and liquidation preference), among others. In exit transactions, PE sellers usually seek clean exits by limiting the scope of their warranties and liabilities as much as possible.
As for the limitations on liabilities, sellers usually wish to set de minimis, basket, caps and time limits to claims for their indemnification liabilities. PE sellers rarely accept strict payment conditions, payment by instalments and escrow accounts for indemnities on exit.
As mentioned in 6.8 Allocation of Risk, a PE seller seeks to minimise the scope of their warranties and subsequent indemnifications for the sake of a clean exit. A PE investor holding only a minority stake in a target company (which is common in China) may only accept fundamental warranties concerning its due authorisation and shares to be sold. Such an investor is less likely to agree to warranties on the operational aspects of the target company and, in terms of the financial and other material assets of the target company, a PE seller’s warranties are normally limited to its knowledge as a minority shareholder. If a PE seller is a majority shareholder, its warranties would then be more comprehensive and would regularly be subject to the management’s knowledge, as the target company is normally operated by the management. Furthermore, a PE seller would push for all due diligence data as disclosures, subject to negotiations with the buyer. Since the management is normally not a party to the transaction, it rarely issues warranties directly to buyers. Whether the buyer is PE-backed or not does not generally make a difference to warranties offered by a PE seller.
The seller’s liabilities for warranties are typically subject to de minimis, basket, caps and time limits, among others. The amount set for the relevant de minimis, basket and caps varies from deal to deal, depending on the transaction value, the asset value of the target company and, of course, the bargaining powers of the parties. Time limits or survival periods for indemnifications vary for different warranties – normally up to five years (occasionally longer) for fundamental warranties, two to three years for other warranties, and applicable statutory limitations for some specially negotiated items. In addition, except for the specially negotiated items, the seller’s indemnifications are generally not applicable to issues that have been disclosed or that have otherwise become obvious to the buyers prior to the signing.
To increase the enforceability of the seller’s indemnifications, in some transactions a buyer may withhold a portion of the purchase price in an escrow account until the lapse of a certain time period (eg, the expiry of the survival period). For matters with higher risks, the buyer may request the seller to eliminate such risks before closing, adopt instalment payments or even request a reduction of the purchase price against such risks. In some cross-border transactions, PE transactional parties may also seek to purchase warranty and indemnity (W&I) insurances to minimise their potential risk exposure. Although still not common, an increasing number of China-related transactions are using W&I insurances, which are generally purchased through foreign insurance companies, as they are not yet widely available from Chinese counterparts.
PE investors generally prefer to choose arbitration as the dispute resolution proceeding in PE transactions, especially in cross-border transactions, as arbitration is generally deemed to be more flexible and equitable, with more confidentiality in China. Arbitration institutions located in Beijing, Shanghai, Shenzhen, Hong Kong and Singapore are the more typical choices. In PE transactions, warranties, indemnities, earn-outs, redemptions and valuation adjustments are more frequently disputed.
Although legally feasible under PRC laws, public-to-private transactions are quite unusual in the current Chinese capital market, mainly for the following reasons:
In practice, going-private precedents in the Chinese market so far have mainly been conducted by large-scale state-owned enterprises for internal restructuring and group-level listings. Going-private transactions more commonly seen in the US or UK markets predominated by PE investors, existing shareholders and/or management teams, are still rare in China.
It is noteworthy that de-listing in the Chinese capital market has recently become more normalised and marketable, mainly due to such reasons as the implementation of the registration-based IPO system, the decrease in the value of public shell companies and the improvement of the de-listing rules. Although most companies were de-listed from the A-share market because of weak financial performance, it is expected that de-listings due to typical public-to-private transactions will emerge in the future. For example, in early 2022, JD Logistics announced its proposed acquisition of Deppon Logistics, a public company that is expected to be de-listed from the Shanghai Stock Exchange after the deal is completed.
According to applicable PRC laws, an investor of a listed company should comply with different levels of disclosure obligations, depending on the percentage of shares acquired. In general, an investor’s disclosure obligation will be triggered if its shareholding in a listed company reaches 5% of the company after the proposed acquisition, in which case, the investor should:
Following the initial disclosure, the investor should comply with similar disclosure obligations (subsequent disclosure) every time it, on an accumulative basis, acquires or disposes of 1% of shares of the company through centralised bidding or block sale systems, or of 5% or more shares of the company through private agreement. The details of such subsequent disclosure may vary, depending on the investor’s post-completion shareholding in the company. In addition to these disclosure obligations, an investor with 5% or more shareholding in a listed company should generally suspend trading of the company’s shares for a certain period (typically including the notice period and three working days after the announcement date), every time the change in the accumulated shareholding of the company, obtained through centralised bidding or block sale systems, reaches 5%.
Under the PRC regulatory regime, if an investor intends to increase its shareholding in a listed company after acquiring 30% of its outstanding shares, a mandatory tender offer to all other shareholders to acquire all or part of the remaining shares of the company should be made. If an investor intends to indirectly acquire no less than a 30% shareholding in a listed company (such as a takeover of the controlling shareholder of the company), a general offer for all remaining shares of the company should generally be made.
Several statutory exemptions are available for these mandatory tender/general offers (such as acquisitions between two parties under the control of the same entity), which are subject to an “ex-post supervision” mechanism. In general, mandatory takeovers are less common in the PRC market than in other mainstream foreign capital markets and, when triggered, statutory exemptions are often applied.
Cash consideration is much more commonly used in PRC public takeovers, except for backdoor listing deals (including reverse mergers by absorption). The PRC laws provide various requirements and restrictions to allow other forms of consideration in a transaction involving a public company. Foreign buyers’ choices are further limited due to regulatory limitations on strategic foreign investment in listed companies, foreign exchange control and cross-border share swaps. In practice, foreign PE investors usually choose to pay with cash in PRC takeovers.
It is noteworthy that the draft Revised Rules for Strategic Foreign Investment in Listed Companies issued for public comment in June 2020 proposed to streamline regulatory requirements and simplify the approval/filing process for cross-border share swap with respect to strategic foreign investments in listed companies. It is anticipated that share payments will see a rise in foreign investments in A-share listed companies once the revised rules are released, hopefully in the near future.
There are no statutory restrictions on the closing conditions of public takeovers under PRC laws. In practice, compared to those applicable to the acquisition of private companies, closing conditions in PE-backed takeovers commonly focus on matters that are necessary for the effectiveness of the transaction, including the following:
As in other non-takeover PE transactions, the obtaining of financing as a condition is unusual in takeovers.
Deal and regulatory processes for public takeovers in the Chinese market are quite different from those in the mainstream foreign capital markets. In general, there is no explicit requirement for the board of directors (or other corporate authority) of the target public company either to consider other unsolicited offers or to “go-shop” after the relevant agreement is signed or an offer is made. Consequently, it is not common to see such deal security measures as break fees, match rights or force-the-vote provisions, which are more popular in US or UK takeover deals.
In a public takeover, if a bidder does not seek to obtain 100% ownership of the target company or to convert it into a private one, it will generally not be able to enjoy preferential shareholder rights that are disproportionate to its post-closing shareholding in the company, based on the “one share, one vote” principle provided in the Company Law.
Lack of a "Squeeze-Out" Mechanism
For public takeovers, instead of having a “squeeze-out” mechanism in favour of the bidder, the existing PRC regulatory regime provides a “sell-out” right to the minority shareholders of the target companies. Under the sell-out mechanism, the minority shareholders of a listed company are entitled (but not obliged) to sell all of their remaining shares in the company to the bidder, on the terms provided by the bidder in the tender offer, if the post-closing capitalisation of the company no longer satisfies the requirement for a listed company. The lack of any squeeze-out mechanism and detailed implementing rules governing the custody and exercise of shareholder rights over the de-listed shares held by minority shareholders is regarded as one of the major legal obstacles for going-private transactions in the PRC market.
Under PRC laws, if a shareholder holding at least 5% of the outstanding shares of a listed company (ie, a “major shareholder”) makes any formal commitment with respect to the sale of the public company’s shares, it must disclose such commitment in a timely manner, and the commitment should be clear, specific and enforceable. In practice, for the sake of a stable market and more flexibility, a major shareholder is less likely to enter into any formal legal document before the execution of definitive transaction documents. In exceptional situations where an auction process is involved, a major shareholder may choose to announce its intention to sell, in order to publicly solicit buyers, and would generally apply to suspend the trading of the company’s shares in order to freeze the transaction price if possible.
Hostile takeovers are not common in the PRC capital market, although no specific restriction in this connection is provided under PRC laws. This is mainly due to the fact that PRC-listed companies generally feature a capitalisation that is highly concentrated to one single shareholder, with the majority of the remaining shares being scattered among individual investors. In addition, the CSRC rules that an investor with 5% or more shareholding in a listed company will be subject to a disclosure requirement with respect to every 1% change in its shareholding in the company, make it costly and inefficient for a hostile takeover to be conducted through the centralised bidding system or the block trade approach. Typical takeover precedents mainly include the takeover of ST Shenghua by ZheMinTou TianHong in December 2017 (which is generally believed to be the first successful hostile takeover in the PRC market) and the takeover of ST Kondarl Group by Kingkey Group in November 2018. That said, there has been ongoing shareholding structure reform to reduce ownership concentration involving PRC-listed companies, and battles for control rights have also gradually increased in recent years. It is therefore possible that hostile takeovers may rise in the Chinese market in the future.
Share incentive plans or similar (eg, employee stock ownership plans or ESOPs) are one of the core commercial concerns in PE transactions in China. A private company may adopt such forms as stock options, restricted shares, phantom equity, etc. An option pool typically accounts for 10–15% of the total shares of a private company (on a fully diluted basis), among which, options reserved for the management team usually account for 50–70% of the total pool. For a PRC listed company, the total shares under all valid ESOPs may be no more than 20% of the company’s total shares for a company listed on STAR Board or ChiNext Board, 30% for a company listed on the Beijing Stock Exchange, or 10% for a company listed on other A-share boards.
It is noteworthy that, since 2020, the CSRC has expanded the pilot rules and experience of keeping qualified pre-IPO ESOPs continuously valid after an IPO in the A-share market. Under current practice, most of the qualified companies with pre-IPO ESOPs are listed on STAR Board.
As private companies in China usually have a relatively concentrated ownership structure and the founders normally retain strong if not absolute control over the companies, management participation in acquisitions of private companies remains uncommon in practice. Thus, currently available rules and regulations focus mainly on management participation in the reform or acquisition of state-owned companies and listed companies. Based on this, and subject to restrictions and requirements in respect of the management's fiduciary duties to the target companies and the fairness and openness of acquisition terms and processes, sweet equity and institutional strips are rarely seen in PE-backed MBO deals in the PRC market, compared to in the US or UK. In China, the management of a target company typically participates in the proposed PE investment by teaming up with a PE investor to purchase shares of the target company at the same or similar price, assuming they have sufficient funds, or through exercising ESOPs adopted by the target company post-closing if the management does not have sufficient funds or is unwilling to co-invest with the PE investors.
Vesting/leaver provisions for manager shareholders are typically applicable to shares obtained under ESOPs, and the company or the controlling shareholder is generally entitled to acquire management shares upon the termination of management's employment. Leaver provisions are typically divided into “good leaver” provisions and “bad leaver” provisions. A “good leaver” usually refers to termination of management due to such reasons as retirement, disability, death, etc, while other circumstances are generally considered to result in a “bad leaver”. Generally, unexercised options/shares will be cancelled under both situations, while exercised shares held by a “good leaver” will commonly be redeemed by the company at the exercise cost or fair market value or net asset value, or will continue to be held by the “good leaver” until the occurrence of exit events, and exercised shares held by a “bad leaver” will be redeemed by the company at fair market value or exercise cost (whichever is lower), and the company is normally entitled to deduct from the redemption price an amount equal to damages (if any) caused by the “bad leaver” to the company.
Four years with a one-year cliff is a typical vesting schedule for options granted to a management team – ie, vesting will occur periodically over a four-year period after the first anniversary of the grant date. Additionally, vesting conditions of options granted to management teams often include the achievement of certain performance goals.
Manager shareholders are customarily requested to sign non-compete and confidentiality agreements before closing, and are subject to the obligations of non-compete, non-solicitation, confidentiality, non-disparagement, full-time commitment, etc. For key manager shareholders, continuous employment for a certain time period after the transaction may also be required.
Protective measures available for a management team as minority shareholders are generally very limited. In circumstances where the management holds a significant stake in a target company and/or has significant influence over the company’s operation, the manager shareholders may ask for board seats or veto rights on material corporate actions of the target company.
To ensure a smooth exit, PE investors in an M&A transaction are reluctant to offer manager shareholders the right to control or restrict their exit. However, given that management’s co-operation and support on issues such as due diligence and the review or confirmation of relevant warranties, etc, appear to be necessary for a smooth exit, and given that the proposed buyer may request retention of the management, it is not uncommon in practice for the management to play an influential role in some aspects of the exit of previous PE investors.
As mentioned in 5.3 Funding Structure of Private Equity Transactions, PE investors in China more commonly seek a minority stake in target companies, and normally achieve a certain level of control over the target companies through the following arrangements.
Depending on the stake held by them in the target companies, PE investors normally request the right to appoint a certain number of directors or observers to the board, supervisors, and/or members of board committees. Where a PE shareholder has a relatively large stake, it may have a right to nominate senior managers to better protect its interests.
If a PE shareholder does not control a target company, it will normally request veto rights over major corporate actions, including change of corporate capital/structure, charter documents, core business, board size and composition, annual budget, business plan, material investments, disposal of material assets, related party transactions, employee incentive plans, listing plans, etc. Under the trend of tightening antitrust regulation as mentioned in 3.1 Primary Regulators and Regulatory Issues, PE investors will need to pay more attention to compliance risks associated with their veto rights.
Information and Inspection Rights
In addition to the general information rights enjoyed by all shareholders according to the Company Law, a PE investor often asks for extra rights, obliging the company to periodically provide financial statements and operation reports to the PE investor. Some PE shareholders may also ask for inspection rights to access and inspect the records and books of portfolio companies, either themselves or through a third-party auditor.
As discussed in 7.6 Acquiring Less Than 100%, PRC public companies are generally subject to the “one share, one vote” principle in the Company Law, and PE shareholders of public companies are normally not able to enjoy preferential shareholder rights that are disproportionate to their shareholdings.
It is generally rare for a PE shareholder to be held liable for a portfolio company’s liabilities, unless this is pursuant to the doctrine of “piercing the corporate veil” – that is, if the PE shareholder abuses the portfolio company’s independent status to evade debts and seriously damages the rights and interests of the portfolio company’s creditors.
From a compliance perspective, a due diligence review prior to the transaction is not uncommon for PE investors. However, whether they decide to impose their internal compliance policies on a portfolio company will depend on a number of other factors, such as, the compliance risk level associated with the portfolio company’s industry, the sufficiency of the portfolio company’s existing compliance policies, the risk susceptibility of the PE investors, and non-compliance issues identified during the due diligence process. In practice, leading international PE funds and major domestic investment institutions are more likely to require portfolio companies (especially those engaged in industries with high compliance risks) to adopt and maintain relevant compliance policies after the transaction.
The typical holding period for PE transactions in the Chinese market ranges from five to eight years, subject to the specific dynamics of each deal. Common exit routes for PE investors include IPOs (including backdoor listings), trade sales, share transfers, repurchase by controlling shareholders or redemption by target companies. As of the first quarter of 2022, the most common exit routes remain IPOs (among which, IPOs in the domestic A-share market have seen an increase due to continuous reforms in the Chinese capital market, while those in foreign jurisdictions have declined) and share transfers. Considering the market and regulatory uncertainties associated with the listing process, a PE investor pursuing an IPO exit normally considers other exit alternatives at the same time, such as a trade sale, repurchase by major shareholders or redemption by target companies.
Whether PE funds will reinvest upon exit mainly depends on the provisions of their constitutional documents and the deal-specific dynamics. In general, if PE funds exit within six months after investment, they are more likely to reinvest in other projects before distribution to their investors.
Drag rights are one of the most typical arrangements in PE investments, although they are not a necessity. Whether to include drag rights in favour of the PE investors in a transaction mainly depends on the rounds of investments, the bargaining powers of the parties and other deal dynamics. For institutional investors (such as PE funds) that intend to include the trade sale as one of their exit alternatives, drag rights are of particular importance. In practice, it is not uncommon to see PE investors exit by exercising their drag rights (CVC’s acquisition of South Beauty in 2012 is a good example) although investors tend to enforce drags on a negotiation basis.
The conditions for exercising drag rights in PRC deals do not differ much from those in deals conducted in other jurisdictions, and normally include the following:
In M&A transactions with multiple PE investors, the exercise of drag rights is usually a highly negotiated term, and is more commonly decided by a majority of the PE investors (or the PE investors holding a majority of the shares of such investors).
As mentioned in 8.5 Minority Protection for Manager Shareholders, PE investors are reluctant to grant influential rights to manager shareholders with respect to their exits. Thus, unless the manager shareholders have strong bargaining power, PE investors rarely agree on tag rights only in favour of the manager shareholders, although they usually ask for tag rights in the case of exit of other shareholders, particularly controlling shareholders, founder shareholders or important manager shareholders. For PE investors’ exits from portfolio companies which have a relatively dispersed ownership structure or which have undergone several rounds of equity financing, the triggering event for exercising tag rights in favour of other shareholders (if any) is normally set as a change of control or agreed trade sale event of the portfolio companies, while PE investors would try to relax the triggering threshold for tag rights in their favour. Exit rights enjoyed by institutional co-investors are generally consistent with those of the PE investors.
In China, in an exit by way of IPO, the lock-up periods applicable to PE investors are typically one year (for minority shareholders) or three years (for controlling shareholders) after the IPO. It is noteworthy that, for a company without an actual controller, the shareholders whose shares, ranking from high to low, collectively constitute 51% of all issued shares of the company prior to an IPO will be subject to a 36-month lock-up period from the IPO date (except for the shareholders who are qualified venture capital funds). However, any investor who acquires shares in a company within 12 months before the IPO application of such company will be subject to a 36-month lock-up period from the date of acquisition.
Transfer of pre-IPO shares
Besides these lock-up arrangements, a transfer of pre-IPO shares on the secondary market by a shareholder via a block trading or centralised bidding system is also subject to certain restrictions. For example, the share reduction plans must be publicised by the selling shareholder in advance, and the total shares sold every three months (restriction period) may be no more than 1–2% of the total issued shares of the listed company. Certain exemptions to such restriction period are applicable to a qualified PE investor filed with the AMAC (eg, such restriction period no longer applies to a PE investor that has held shares for over 60 months).
Independence of an IPO applicant
The independence of an IPO applicant (including independence in terms of assets, businesses, organisational forms, personnel and finance) and the fairness of its related party transactions are among the CSRC’s major concerns when reviewing and assessing an IPO application. An IPO applicant should disclose and make commitments in its prospectus that it has met the basic requirements in terms of company independence. Although the controlling shareholder of an IPO applicant is not obliged to enter into any “relationship agreement”, it may voluntarily provide a commitment letter on the independence of a company and the fairness of related party transactions, in an attempt to accelerate the IPO process.
Geopolitics and US-China Relations
US-China relations clearly continue to play a critical role in forming China's macro policies and shaping its financial regulatory framework. We believe the Chinese government will continue its reformation and open market policy to ensure a stable environment for the country’s development. Even with the notable abatement in private equity/venture capital (PE/VC) investment in the first half of 2022, we believe that the Chinese market will remain a critical place for international and domestic investors, especially those who are interested in the consumer, logistics, clean resource and technology sectors. However, geopolitical factors and different development philosophies continue to influence social governance and financial regulation practices. Communication to reach a common understanding between the regulators and the regulated is more important than ever within the difficult pandemic situation. It appears that market players will need to participate more actively in industry pilot programmes and rule-making processes driven by local government and regulators.
China's Cybersecurity Law, Personal Information Protection Law and Data Security Law
Data compliance is the most common risk and control term in the industry, not only due to the three key data-related legislations effective in recent years, but also because of the heightened trend of regulatory review and enforcement in 2022. According to the Cybersecurity Law, a national security review is required for critical information infrastructure operators (CIIOs) when they purchase network services and products with a possible impact on national security. Similarly, according to the new Cybersecurity Review Regulation effective since 15 February 2022, both CIIOs and network platform operators are required to undergo a cybersecurity review. For network platform operators who want to go public overseas with more than one million users' personal information, a request for a cybersecurity review must be filed with Chinese authorities. In China's Data Security Law, when personal information and important data are shared across borders, data processors or CIIOs are required to conduct a cross-border security assessment and pass the government’s security review.
All the data regulations have set a high bar for compliance by market participants. In a lot of practical implementation areas, however, questions on the actual standards of cybersecurity reviews and data security reviews remain open. Regulators across sectors have also been organising pilot projects, for example, in the automobile industry, on the topics of data security assessment and data cross-border transfer, to sort out feasible compliance programmes. All market players are encouraged to actively participate in such activities and take the opportunity to shape data compliance regulation and enforcement regimes.
For companies that want to raise funds through the capital market, it is clear that regulatory reviews of national security, data security and personal information protection are a key requirement. Companies are advised to build a comprehensive data compliance programme and proactively participate in government reviews. Data compliance has become a critical area for PE/VC funds to perform due diligence on target companies and to follow up on post-investment management.
Compliance and Risk Control
Accounting, tax, environmental, cybersecurity, data security, and financial crime compliance issues have been increasingly scrutinised by Chinese regulators for listed companies. At the same time, Chinese prosecutor's offices have recently implemented a programme to consider not bringing cases to public prosecution in those companies that can enforce effective compliance controls. Both PE/VC market investors and entrepreneurs have become more aware of the importance of regulatory compliance and the potential impact of failure to comply on investment and exit. The standards of pre-investment due diligence have been lifted. Nominee structure, tax violations, foreign currency control, Foreign Corrupt Practices Act (FCPA) matters, and negative media exposure are the most common topics in compliance and risk control. It appears that the market is becoming less and less tolerant of compliance issues. Fund managers and their advisers will therefore need to pay more attention to compliance and risk matters, especially post-investment compliance monitoring and remediation.
China’s Attitude towards Blockchain-Based Industry
Blockchain-based projects have attracted huge amounts of money from institutional investors worldwide in recent years. According to business analytics company, CB Insights, for the first quarter of 2022, funds raised in the blockchain industry worldwide amounted to USD92 billion in total and the number of deals closed totalled 461, with an average fundraising amount of USD20 million. In addition, the blockchain industry in China has seen very strong and repaid growth since 2018, and a boost from 2020 to 2021. According to a statistics report released on 8 July 2022 by the China Industrial Blockchain Conference, a review shows that the blockchain market realised sustainable growth in 2021 despite the COVID-19 pandemic – for instance, there are nearly 100,000 blockchain-based or related enterprises throughout the country, and the market size of the whole market in China hit RMB230 billion (approximately USD35.6 billion) at the end of 2021.
Blockchain is a neutral and promising technology that can be used in a wide range of industrial sectors or application scenarios such as finance, supply chain, copyright protection, food safety, logistics, IoT and social governance. However, speculators often induce masses of individual investors lacking in professional investment experience to purchase and trade tokens created in blockchain-based applications, and in many cases, blockchain success stories are fabricated to extract money from individuals by fraud, which has greatly impacted social stability and financial order in China. Against this background, the Chinese government has step by step taken increasingly tough legislative and administrative measures to crack down on fraudulent and criminal acts relating to tokens or virtual currency from 2013 to 2021. Under the latest central-government policies and regulations, the following activities are treated as “illegal financing activities” and thus forbidden:
In the worst-case scenarios, violators could be sued for criminal acts if their activities fall squarely under the crimes of “illegal fund-raising from the public”, “fund-raising by fraud”, “organising and leading pyramid selling activities” and “illegal business operations”, etc, and could face criminal charges. In September 2021, “mining” activities for the purpose of creating virtual currencies was added to the category of “not encouraged and restricted for expansion” in the nation’s industry catalogue, and relevant financing activities in this area are strictly forbidden.
Nevertheless, China has rolled out an array of policies supporting the development of this industry since 2016, among which a notable one is Guiding Opinions Concerning the Acceleration of the Promotion of the Blockchain Technology Application and Industry Development promulgated by China’s Ministry of Industry and Information Technology (MITT) and the Office of Central Cyberspace Affairs Commission in June 2021. Pursuant to this, China aims to take a world-leading role in the blockchain industry by 2025 and the application of blockchain is anticipated to spread in various industrial areas. Meanwhile, China has been active in bringing the blockchain application into the regulatory framework. In February 2019, a regulation was passed by the Cyberspace Administration of China (CAC) to require service providers of blockchain information to perform filing procedures and assume cybersecurity and other relevant responsibilities, thereby providing a monitoring platform to regulate the blockchain industry within China. According to public information available on the official website of CAC, as of 25 July 2022, a total of 2,159 enterprises had successfully completed the required filing procedures with CAC, among which, more than 800 are related to blockchain-based digital collectible projects.
In summary, the blockchain-related industry and its broad derivative applications (eg, metaverse, web3.0 and NFT) will see great development in China thanks to China’s strong information infrastructure, as long as the relevant market players do not step over the policy “red line” – that is, by making blockchain tokens a kind of tradable financial product, security or currency. Some market players operate an initial coin offering (ICO) or other related trading activity overseas but solicit customers and/or obtain technical, marketing and payment support from China, despite the fact that there may be a compliance risk associated with such practice model.
Compliance Concerns in Enterprises Founded by Researchers
Since 2015, laws and regulations have been passed to promote technological enterprises founded by researchers. Scientists and researchers employed by public universities or other state research institutions (“Researchers”) are encouraged to take part-time work or start a business without quitting their original position. Start-ups founded by Researchers draw a great deal of attention from PE/VC investors and have received tens of millions through equity finance. However, there are also compliance concerns in the enterprises founded by Researchers, which call for special attention from PE/VC investors.
Generally speaking, Researchers are allowed to establish a company or take the position of director or be part-time employees in a start-up company. However, if such person holds a position that could be defined as leading cadres in the research institutions where they work, such person could be prohibited from taking a part-time job in the start-up company. Researchers also need to comply with the internal regulations of the research institutions where they hold a position. Additionally, for Researchers who are leading cadres in a university under the administration of the Ministry of Education, holding equity interests in a start-up is not allowed.
During the listing process, the China Securities Regulatory Commission (CSRC) and the relevant stock exchanges (together with the CSRC, the “Listing Examining Authorities”), may have additional concerns about applicants in which Researchers are founders or core technicians. The Listing Examining Authorities would review the independence of the business and the stability of its core technician teams. Under the review standards of the Listing Examining Authorities, Researchers who work in the listing applicants have no legal obstruction to providing services to the listing applicants, and a listing applicant needs to build a competent management team to ensure the sustainable running of its business and may not rely on specific Researchers. The Listing Examining Authorities also have concerns regarding the property rights of patents invented by Researchers. According to the patent law of China, an invention-creation by Researchers in the course of executing any task for their research institutions or mainly through taking advantage of the research institution’s materials or technical resources will be deemed a service invention-creation, and the right to apply for a patent for this will be vested in research institutions other than the company where the Researcher works as a part-time employee or consultant. For patents that are invented by Researchers and owned by the listing applicants, Researchers need to prove that such patents are not the service invention of the research institutions and that the property rights to such patents are indisputable.
Strengthened Anti-monopoly Supervision of M&A of Internet Giants
The year 2021 was marked by intensive and strict law enforcement on internet platform economy giants in China. Since 2021, the State Administration for Market Regulation (SAMR) has publicised over 100 penalties on merger-related violations involving internet giants, including Tencent, Alibaba and Baidu, which shows a trend of strengthened anti-monopoly scrutiny of internet giants.
According to the Provisions of the State Council on the Threshold for the Reporting of Concentration of Business Operators (the “Reporting Threshold”), the anti-monopoly law enforcement agency may investigate transactions that are below the threshold for antitrust scrutiny but have or may have eliminated or restricted competition. The Guidelines for Anti-monopoly in the Field of Platform Economy (the “Antitrust Guidelines for Platform Economy”) further defined the types of transactions to be reviewed, which include:
These are construed to be prevention measures to the “killer acquisitions” of internet giants which aim to discontinue or take over a target company’s innovation projects, leading to undermined competition.
It is expressly stated in the Antitrust Guidelines for Platform Economy that a concentration of business operators involving agreement control (a VIE structure) falls within the scope of concentration declaration. This guideline has cleared the long-existing grey area for the concentration declaration of acquisitions by companies with VIE structures. In the penalty cases publicised by the SAMR after the Antitrust Guidelines for Platform Economy was published, penalties were imposed on transactions conducted by business operators with VIE structures that did not report their transactions to the anti-monopoly law enforcement authority. Cases also show that historical transactions might be investigated and penalised retroactively.
On 24 June 2022, the revised Anti-monopoly Law (the “New Anti-monopoly Law”) was passed, with effect from 1 August 2022. Under the New Anti-monopoly Law, the upper limit of penalties for violations of the concentration declaration obligation further rises. The penalties increase to a fine of not more than RMB5 million if the concentration of undertakings does not have the effect of excluding or limiting competition, or a fine of up to 10% of the sales revenue of the violator in the preceding year, if the concentration of undertakings has or may have the effect of excluding or limiting competition.
Investors’ Right to Termination and Recovery Clauses in a Financing Agreement
It has been a common practice in China’s PE/VC deals that target companies require their investors to pre-agree the automatic termination of their special rights and privileges such as anti-dilution right, redemption right and liquidation preference right before the submission of an IPO filing or even at an earlier date, and to fix this termination mechanism in a financing agreement, typically in the shareholders’ agreement. In reaction to said rights termination mechanism, investors normally require a rights recovery clause in the same agreement to achieve balance in this regard, stating that where the IPO application is rejected by the Listing Examining Authorities or withdrawn by the listing applicant, or where it fails to be accepted after a certain period of time, the terminated rights and privileges will automatically become effective again from that date.
Nevertheless, the answers to the following questions regarding rights termination and recovery mechanisms still need to be clarified based on recent practice.
When should investors’ rights be terminated?
In most cases, certain special rights and privileges will terminate before the submission of an IPO application by the company. However, the recent trend is for the date of termination to become earlier than before. In some IPO cases, the redemption right or anti-dilution right against the company was terminated on the base date of share reform or the base date of the IPO application, because such rights require the company to perform payment obligations towards investors which could create contingent liabilities on the company and could have a substantial impact on the financial conditions of the company, depending on the situation. As for certain other rights and privileges of an investor that will not impose a cash payment obligation on the company, these can be terminated at a later date.
What kind of investors’ rights should be terminated?
According to the official interpretation of the Listing Examining Authorities, regarding the widely-used valuation adjustment mechanism required by investors and other arrangements of a similar nature, the listing applicants should clean these up before the IPO application, except where all the following tests are met:
In most cases, it appears that the investors’ rights and privileges that make the company (as opposed to the controlling shareholder) an obligator are terminated before the IPO application, including redemption right, liquidation preference right, drag-along right, anti-dilution right, dividend preference right, veto right and pre-emptive right, etc.
Whether the rights recovery clause is allowed to exist
The Listing Examining Authorities used to allow the existence of a rights recovery clause in history, however, many recent cases show that Listing Examining Authorities tend to require the termination or amendment of such rights recovery clause to the extent that the recovered rights and privileges relate to an applicant’s obligations of payment or certain other duties or could adversely impact the valuation of the listing applicant. The trend appears to be for the Listing Examining Authorities to take a more rigorous view in this regard, and the chance to set or entirely keep such rights recovery clause after the IPO application is very limited, even if the relevant obligator is the controlling shareholder rather than the listing applicant itself.
Potential Impact on Deal Terms Brought by Uncertainty in Investment Exits
The recent dramatic decrease of share prices of Chinese companies listed on US and Hong Kong stock exchanges has had a significant impact on both Chinese listed companies and those Chinese companies seeking to be listed offshore. With concerns over IPO exits, it is probable that investors will seek to secure more diversified exits in future, and may attach equal importance to alternative exit mechanisms as to IPOs. This may lead to more intense negotiations of deal terms between investors and target companies and their founders in PE/VC transactions.
A redemption right clause is a common deal term in PE/VC investments. Given the uncertainty in IPO exits, it appears that investors may seek to secure more triggering events for their redemption right and enforce such right more strictly so as to achieve pre-IPO exits. This will lead to stricter obligations on the target companies. For example, investors may seek to exercise their redemption right immediately after a target company fails to achieve a qualified IPO.
To achieve pre-IPO exits, investors may attach more attention and importance to a trade sale. A trade sale is the sale of all or substantially all shares of a target company which will lead to a change of control in the company. Investors may seek to specify the failure of the company and its founders to complete a trade sale as a triggering event for investors’ redemption rights, although the trade sale is generally not considered as correlated to, and thus not a triggering event for, investors’ redemption rights. Previously, investors generally only required the founders not to sell the company at a price lower than a certain valuation. In recent deals, however, aggressive investors have required the company and its other shareholders to agree to the trade sale if the company valuation reaches a certain amount, essentially securing a pre-emptive right to initiate the trade sale themselves.
Investors’ right to transfer shares
Investors are generally allowed to sell their shares freely, subject to very few exceptions (eg, transfer to the company’s competitors not permitted). This common practice may be changed by investors out of concern over a successful IPO. Investors may seek more flexibility in selling their shares to third parties. For example, investors may limit the scope of the company’s competitors to which they are not permitted to transfer shares, or even secure a right to transfer their shares to the company’s competitors. In addition, investors may further require the company and its founders to repurchase their shares on equal terms and conditions if their transfer of shares to third parties cannot be successfully completed within a certain period.
Investors’ option to make subsequent investments
It is not uncommon for investors to seek a right to make follow-on investments in the same company. The main underlying rationale is that investors are optimistic about the company’s future and are thus interested in increasing their investments in the future. Simply put, investors may seek to make investments in instalments, making their first instalment while opting to make future instalments and locking the company’s valuation for a certain period. This is generally not aligned with the company’s need for capital. Therefore, both the company and investors may reach a compromise by imposing restrictions on investors’ exercise of such option (eg, shortening the period for investors’ exercise of the option or setting a higher company valuation for the investors’ option).
Economic interest-related clauses
Future investors may also seek to lower the company’s valuation to reduce their investment cost and increase their return on investment. For example, investors may seek to secure a higher hurdle rate of return on investment by negotiating such clauses as preferential dividend rights, redemption rights and liquidation preference. In addition, in the case of “down-round” financing (ie, subsequent financing at a lower valuation than previous rounds of financing) where anti-dilution issues will be brought by investors, the “full ratchet” mechanism is expected to be used more frequently in future, as opposed to the “weighted average” mechanism which has commonly been used previously.
With regulatory and compliance law enforcement being increasingly intensified (eg, antitrust, data privacy and security), investors may seek more involvement in the company’s corporate governance in future. To this end, investors may seek to expand their veto rights while restricting the founders’ decision power (in particular, over matters involving company spending such as annual budget, expenditures and major transactions, etc). In addition, investors may also secure a more detailed information right and inspection right in order to enhance their post-investment management.