1. Legal, regulatory and policy basis for the mixed-ownership reform of state-owned enterprises Since the Party Central Committee and the State Council promulgated the "Guiding Opinions on Deepening the Reform of State-owned Enterprises" in 2015, the State Council and relevant departments have issued supporting regulations on the development of mixed ownership of state-owned enterprises. A series of documents such as "Economic Opinions" formed the "1+N" document system for the mixed ownership reform of state-owned enterprises, providing top-level design guidance for the mixed ownership reform plan of state-owned enterprises.
2. Participants in the mixed-ownership reform of state-owned enterprises There are many participants in the mixed-ownership reform of state-owned enterprises, and the interests of all parties are different, which increases communication and implementation costs.
1. State-owned enterprises Most state-owned enterprises have a long history, numerous business sectors, and complex equity relationships. At the same time, a considerable number of state-owned enterprises have missing legal documents, imperfect financial systems, and incomplete business data. , Therefore, before designing the overall plan for the mixed ownership reform of state-owned enterprises, it is necessary to comprehensively understand, sort out, and analyze all aspects of the state-owned enterprises' equity, assets, business, finance, law, personnel, etc., so as to clarify the company's future development strategy. , business reorganization direction, structure optimization path, and the goals and requirements of introducing strategic investors, and then combined with the requirements of regulatory authorities and the norms of the capital market, systematically design and implement an overall plan for the mixed ownership reform of state-owned enterprises.
2. In the process of mixed-ownership reform of state-owned enterprises by government regulatory authorities, the regulatory authorities usually involved include the State-owned Assets Supervision and Administration Commission, industry and commerce, taxation, commerce, development and reform, etc. Some projects also involve natural resources, environmental protection, foreign affairs administration and other departments. , Since different regulatory departments have different responsibilities and different perspectives of consideration, the interpretation and judgment of the same issue in the mixed reform process of state-owned enterprises may also be different. Therefore, state-owned enterprises need to conduct timely and comprehensive communication with various regulatory departments to ensure that state-owned enterprises The smooth implementation of the mixed-ownership reform plan.
3. Investors Different types of investors have different demands for participating in the mixed reform of state-owned enterprises. For example, strategic investors pay more attention to long-term investment returns, pursue strategic synergy, and hope to actively participate in or effectively influence the enterprise. governance and management to gain greater development opportunities. For financial investors, financial returns are more important, especially private equity funds, which generally have a clear holding period and require clear exit channels (such as listing and buyback commitments). Therefore, whether you can successfully introduce investors to complete the mixed reform of state-owned enterprises depends on whether you can balance the interests and risk arrangements of state-owned enterprises and investors, especially if it involves the introduction of different types of investors at the same time, coordinating and balancing all parties The difficulty of interests and requirements will also increase significantly.
4. Intermediaries The implementation of a successful state-owned enterprise mixed-ownership reform project usually requires the unremitting efforts and comprehensive cooperation of multiple intermediary teams, such as the financial advisory team (designing transaction structures, finding potential investors, assisting enterprises with Negotiations with potential investors and full-process management of projects), management consulting team (assist companies in formulating strategic development plans, organizational management and control optimization plans, employee incentive plans, retired employee placement plans, etc.), lawyer team (conducting legal due diligence, Elaboration and implementation of restructuring plans, drafting and negotiation of transaction documents, etc.), tax team (conducting tax compliance investigation, tax restructuring plan design, tax planning, etc.), financial audit team (auditing and asset liquidation and capital verification), legal Asset appraisal team (conducts legal asset appraisal in accordance with state-owned assets requirements), property rights trading center (assists in completing transactions that require public transfer on the Industry and Commerce Exchange in accordance with SASAC Order No. 32 "Regulations on the Supervision and Administration of Enterprise State-owned Assets Transactions"), etc.
5. Employee Congress The Employee Congress and its permanent institutions organize employees to participate in the company's democratic decision-making, management and supervision, and exercise their right to know and supervise the company's operation and management and the right to review and recommend major decisions in accordance with the law. The right to review and decide on matters concerning the vital interests of employees, the right to evaluate and supervise enterprise leaders, the right to elect enterprise managers according to authorization, etc. If the mixed reform of state-owned enterprises involves employee resettlement matters, the resettlement plan must be reviewed and approved by the employees' congress or workers' conference. The company's timely communication with the workers' congress on the resettlement plan will help ensure the stability of the workers.
6. Other government departments, such as the mixed-ownership reform of state-owned enterprises, involve management stock ownership plans, and the personnel participating in the management stock ownership plans include cadres supervised by the Organization Department, then the shareholding arrangements must be made in advance with the organization Communicate with the department and obtain the consent of the organization department.
3. General procedures and operational points for the mixed reform of state-owned enterprises. From the essence of the transaction, the mixed reform of state-owned enterprises mainly includes two methods: equity transfer and capital increase. Based on your company's situation, our firm recommends that your company increase capital and expand shares. The method of capital increase and share expansion includes seven steps: formulating a mixed-ownership reform plan, internal resolution, SASAC/government approval, audit/evaluation, public solicitation of property rights market, and signing of transaction contract/registration.
1. Formulate a mixed-ownership reform/capital increase plan. Capital-increasing enterprises should conduct feasibility studies and program demonstrations for capital increase in accordance with the corporate development strategy; the number of shareholders of the enterprise after the capital increase must comply with relevant national laws and regulations.
2. Enterprises that make internal resolutions to increase capital shall make decisions in accordance with the company's articles of association and internal management systems and formulate written resolutions; shareholder representatives appointed by state-owned shareholders of state-owned holding and state-owned actually controlled enterprises shall issue statements in accordance with the instructions of the appointing unit opinions and the exercise of voting rights.
3. The State-owned Assets Supervision and Administration Commission/Government Approval State-owned Assets Regulatory Agency is responsible for reviewing the property rights transfer matters of state-invested enterprises; among them, if the state no longer holds the controlling stake in the invested enterprise due to the transfer of property rights, it must be reported to the state-owned assets regulatory agency Approved by the people's government at the same level.
4. After the capital increase matters are approved, the capital increase enterprise shall entrust an intermediary agency with corresponding qualifications to carry out auditing and asset evaluation; in certain circumstances such as the original shareholders of the capital increase enterprise increasing capital in the same proportion, the capital increase enterprise may rely on the evaluation report or The latest audit report determines the corporate capital and equity ratio.
5. Employee stock ownership arrangements are carried out in accordance with legal procedures and in accordance with the "Employee Stock Ownership Plan" approved by the government authorities and superior companies, and some or all employees are introduced into the mixed reform enterprise to make them part of the mixed reform enterprise. shareholder.
6. The public solicitation of property rights market discloses information to the public through the website of the property rights trading institution to solicit investors; when the number of intended investors who have passed the qualification review is large, bidding, competitive negotiation, comprehensive evaluation and other methods can be used. Multiple rounds of selection; based on the asset evaluation results, combined with factors such as the conditions and quotations of the intended investors, the investors will be selected.
7. Sign the transaction contract and register. After the capital increase agreement is signed and becomes effective, the property rights trading institution shall issue a transaction certificate and announce the results to the public through the trading institution's website; the capital increase enterprise shall register and file in accordance with the relevant requirements for industrial and commercial registration.
8. Special matters involving the capital increase of a listed state-owned company shall comply with the relevant regulations on state-owned equity management and securities supervision of listed companies; involving transaction entity qualification review, anti-monopoly review, franchise rights, and state-allocated land use Government approval matters such as rights, exploration rights and mining rights shall be implemented in accordance with relevant regulations; if the investor is an overseas investor, it shall comply with the management requirements of the foreign investment industry guidance catalog and negative list, as well as the relevant regulations on foreign investment security review.