Chapter I Definition and Overview

1 definition

The acquisition of a limited liability company as mentioned in these Guidelines only refers to the act that the purchaser obtains the control right of the limited liability company by purchasing the capital contribution of the shareholders of the company or controlling the capital contribution by other legal means for the needs of resource integration, fiscal revenue and improving the market competitiveness of the enterprise, and purchases the assets of the company and can independently manage the assets.

The target company mentioned in these Guidelines refers to the acquired limited liability company.

Article 2 The acquisition method of a limited liability company

According to the different acquisition targets, the acquisition methods of limited liability companies are:

2. 1 Asset acquisition, with all or part of the assets of the target company as the acquisition target;

2.2 A capital contribution acquisition refers to an acquisition with all or part of the capital contribution of the shareholders of the target company as the acquisition target.

Article 3 Special matters

3. 1 Lawyers should pay attention to respecting the preemptive right of other shareholders of the target company when handling the acquisition of a limited liability company. The purchaser can only make a capital contribution acquisition after performing legal procedures to exclude the preemptive right of shareholders.

3.2 When handling the acquisition of state-owned assets and the acquisition of foreign-funded companies, we should attach importance to the evaluation of state-owned assets and perform relevant examination and approval procedures.

Chapter II Overview of Collection Procedures

Article 4 Acquisition procedures of general limited liability companies

4. 1 The acquirer negotiates with the target company or its shareholders to get a preliminary understanding of the situation, then reaches the acquisition intention and signs the letter of intent.

4.2 With the assistance of the target company, the acquirer shall clean up the assets, creditor's rights and debts of the target company, conduct asset evaluation, conduct detailed investigation on the management structure of the target company, and record the employees.

4.3 Representatives of both parties to the acquisition and creditors of the target company form a group to draft and pass the acquisition implementation plan.

4.4 The creditor and the acquired party reach a debt restructuring agreement, stipulating the debt repayment after the acquisition.

4.5 Both parties formally negotiate and sign an acquisition contract through negotiation.

4.6 Both parties shall submit this acquisition to the shareholders' meeting and other respective authorities for deliberation and voting in accordance with the Articles of Association or the Company Law and relevant supporting laws and regulations.

4.7 Both parties shall submit the procurement contract to relevant departments for approval or filing according to the requirements of laws and regulations.

4.8 After the acquisition contract comes into effect, both parties shall go through the formalities of asset transfer and management right transfer as agreed in the contract, and shall go through the formalities of industrial and commercial and tax registration change, including shareholder change registration, in accordance with the law, unless otherwise provided by law.

4.8. 1 Record the name of the transferee and the amount of investment as agreed in the register of shareholders of the target company.

4.8.2 Apply to the administrative department for industry and commerce for industrial and commercial change registration within 30 days from the date of shareholder change.

Fifth acquisition of wholly state-owned companies and state-owned assets investment companies, we should also pay attention to:

5. 1 Evaluate the assets of the target company according to the requirements of laws and regulations on state-owned assets management.

5.2 The acquisition project shall be examined and approved by the state-owned assets management department.

5.3 After the acquisition is completed, the registration formalities for the change of property rights of assets shall be handled in accordance with the requirements of laws and regulations on the management of state-owned assets.

Article 6 When purchasing the capital contribution of a foreign-invested enterprise, attention should be paid to the following matters:

6. 1 If foreign shareholders invest, they shall ensure that the joint venture project meets the requirements of the Catalogue of Industries with Foreign Investment, re-compile the feasibility study report, and abide by the provisions of laws and regulations on the proportion of foreign investment. If the proportion of foreign capital is lower than the legal proportion due to the acquisition of foreign shareholders' investment, it shall go through relevant examination and approval and change the nature of the company.

6.2 Changes involving the investment amount, registered capital, shareholders, business projects and equity ratio of the joint venture company shall go through the examination and approval procedures.

Chapter III Preparation for Acquisition

Article 7 Information Collection in the Preparatory Stage

The acquisition preparation stage refers to the preparation period from the initial determination of the target company by the acquirer to the implementation of the acquisition. Lawyer's legal affairs in the preparation stage of acquisition include:

7. 1 Assist the acquirer to collect the public information of the target company, corporate credit status, business ability and other information, and sort out and analyze the information on this basis, and investigate whether there are any major obstacles affecting the acquisition activities from the market risk of the company's operation.

7.2 Comprehensively study the company law, securities law, tax law, foreign investment and other laws and regulations, conduct legal argumentation on the feasibility of acquisition, and seek the legal basis for project establishment.

7.3 Investigate the specific administrative procedures that may be involved in this acquisition, such as whether this acquisition violates China's acquisition policies and laws, what legal consequences may arise, whether this acquisition requires the approval of the local government or prior declaration, and whether the local policies have a tendentious attitude towards similar acquisitions.

Chapter IV Due Diligence Investigation of Target Company

Article 8 A lawyer shall conduct an in-depth investigation on the target company to be acquired by the acquirer, verify the relevant information obtained in the preparatory stage, and make sufficient information preparation for the acquirer to make the acquisition decision. Lawyers may, according to the actual situation and on the premise of complying with laws and regulations, appropriately increase or decrease the specific contents of the investigation.

Article 9 The investigation and verification of the basic information of the target company mainly includes:

9. 1 Business scope of the target company and its subsidiaries.

9.2 Relevant documents on the establishment and change of the target company and its subsidiaries, including industrial and commercial registration materials and approval documents of relevant competent departments.

9.3 Articles of Association of the Target Company and its subsidiaries.

9.4 Register of shareholders and shareholding of the target company and its subsidiaries.

9.5 Resolutions of the board of directors and shareholders' meeting of the target company and its subsidiaries.

9.6 Identification certificates of the legal representatives of the target company and its subsidiaries.

9.7 Rules and regulations of the target company and its subsidiaries.

9.8 The Target Company and its subsidiaries sign acquisition contracts with others.

9.9 Whether there are restrictions on the transfer of the acquisition target, such as setting guarantee and litigation preservation.

Article 10: Investigation of related subsidiary documents of the target company:

10. 1 Approval documents of relevant government departments for the target company and its subsidiaries.

10.2 Land, house property rights and lease documents of the target company and its subsidiaries.

10.3 labor contracts signed by the target company and its subsidiaries and employees.

10.4 related agency and licensing contracts signed by the target company and its subsidiaries.

Article 1 1 Investigation on the property status of the target company:

1 1. 1 Company financial data, including various financial statements, evaluation reports and audit reports.

1 1.2 Real estate certificate, movable property list and insurance information.

List of creditor's rights and debts and their supporting documents.

1 1.4 tax payment certificate.

Article 12 Investigation on the management and employees of the target company:

Employment conditions and welfare benefits of managers, technicians and employees.

12.2 the company's business secrets mastered by the main technicians, confidentiality agreements and non-competition agreements signed with the company, etc.

12.3 insurance situation of employees in special positions.

Article 13 Investigation on the operating conditions of the target company:

13. 1 Project establishment and approval of the target company.

13.2 All contracts signed by the target company.

13.3 list of customers and main competitors of the target company.

13.4 product quality assurance documents of the target company and special guarantees for individual customers.

13.5 copy of the advertising agreement and advertising products of the target company.

13.6 product liability insurance of the target company.

13.7 products and environmental protection of the target company.

13.8 consumer complaints about the products of the target company.

Franchising of the target company.

Article 14 Investigation on Intellectual Property Rights of the Target Company and its subsidiaries:

14. 1 Intellectual property documents such as patents, trademarks and copyrights owned by the target company and its subsidiaries.

14.2 report on the intellectual achievements that the target company and its subsidiaries are developing that may acquire intellectual property rights.

14.3 list of intellectual property rights that the target company and its subsidiaries are applying for.

Article 15 Investigation of legal disputes of the target company:

15. 1 ongoing and possible litigation and arbitration.

15.2 Claim and waiver in litigation or arbitration.

15.3 implementation of effective legal documents.

Chapter V Achievement of Acquisition Intention

Article 16 A lawyer shall, on the basis of information collection and investigation, remind the client of the legal risks of this acquisition and put forward risk prevention measures, issue legal opinions when necessary, and draft or review the letter of intent for this acquisition. The letter of intent for acquisition usually includes the following contents:

16. 1 acquisition target.

16.2 acquisition method and acquisition contract object. Whether it is asset acquisition, capital contribution transfer or others, the subject of the acquisition contract should be determined according to the different acquisition methods.

16.3 whether the acquisition project needs the approval of the shareholders' meeting of both parties.

16.4 purchase price and the way to determine the price. The transfer price is usually determined in the following ways:

16.4. 1 Take the equity value of the acquired equity holder as the transfer price;

16.4.2 The transfer price is the net asset value of the company corresponding to the acquired equity;

16.4.3 The appraised price is the transfer price.

16.4.4 Other ways to determine the transfer price.

16.5 payment for goods.

16.6 whether the acquisition project needs the approval of relevant government departments.

16.7 acquisition conditions agreed by both parties.

Article 17 safeguard clause

The lawyer should remind the client of the difference and connection between the letter of intent and the formal acquisition contract, and remind the client of the legally binding degree of the letter of intent according to the actual needs of the client. In view of the relatively large amount of manpower, material resources and financial resources invested by the acquirer in the acquisition activities, the acquirer's lawyer should draw the client's attention to the following safeguard clauses in the letter of intent in order to prevent and minimize the legal risks of the acquisition.

17. 1 exclusive negotiation clause. This clause stipulates that the acquirer shall not negotiate with a third party to transfer or sell the equity or assets of the target company in any way without the consent of the acquirer, otherwise it will be regarded as a breach of contract and be liable for breach of contract.

17.2 provision of materials and information clauses. This clause requires the target company to provide the acquirer with the enterprise information and materials it needs, especially the relevant information and materials that the target company has not disclosed to the public, so as to help the acquirer understand the target company more comprehensively.

17.3 confidentiality clause. This clause requires that any party to the acquisition shall not disclose the information or materials related to the acquisition to any specific or unspecified third party without the consent of the other party before publicly announcing the acquisition, unless the authorities force the disclosure according to law.

17.4 locking clause. This clause requires the acquirer to acquire part or all of the assets or equity of the target company at the agreed price within the validity period of the letter of intent, thus excluding the possibility that the target company refuses to acquire.

17.5 cost sharing clause. This clause stipulates that no matter whether the acquisition is successful or not, the expenses arising from the acquisition shall be borne by both parties.

Additional provisions of article 18

In the process of acquisition, in order to prevent the target company from obtaining the commercial secrets of the acquirer in the name of acquisition, as the lawyer of the acquirer, additional clauses to prevent such risks should be set in the letter of intent:

18. 1 This clause clearly stipulates that if both parties fail to sign the acquisition agreement within the prescribed time limit, the letter of intent will be invalid.

18.2 confidentiality clause. Due to prudent consideration, both parties to the acquisition often sign a confidentiality agreement before signing the letter of intent for acquisition, or they can set confidentiality clauses at the same time when signing the letter of intent. The main contents of the confidentiality clause are:

The object to which the confidentiality clause applies. In addition to the two parties to the acquisition, it also includes intermediary service personnel such as consultants involved in the acquisition.

18.2.2 confidential matters. In addition to the confidentiality requirements for talks and materials, it also includes an investment prohibition clause, that is, a third party that obtains confidential information of the target company may not purchase the equity of the target company for a period of time.

18.2.3 it is generally agreed that all kinds of information disclosed by both parties in the acquisition activities shall be kept confidential, and the information and materials disclosed shall only be used for evaluating the feasibility and acquisition consideration of the acquisition project and shall not be used for other purposes.

18.2.4 return or destruction of materials. The confidentiality clause should stipulate that if the acquisition project is not completed, both parties have the obligation to return or destroy the information and materials provided by the other party.

Chapter VI Acquisition Execution

After the two parties reach the purchase intention, the lawyer shall assist the client in negotiation, draft the purchase contract, prepare relevant legal documents, and assist the client in applying to the competent government department.

Article 19 Drafting of Purchase Contract

A relatively complete acquisition contract includes two parts: the main contract and accessories;

19. 1 The main contract of the acquisition contract shall generally include the following contents, in addition to the main clauses such as the subject matter, price, payment, contract effectiveness and modification:

19. 1. 1 Explain the legal basis for the legality of the acquisition project.

19. 1.2 The preconditions for acquisition generally refer to:

The acquisition has obtained relevant approval procedures. For example, when the acquisition project involves special industries such as finance, construction, real estate, medicine, news, telecommunications and communication. , the acquisition project needs to be submitted to the relevant industry authorities for approval.

The parties to the acquisition have obtained the necessary consent of the third party required for the acquisition of the project.

As of the handover date of the acquisition target, the statements and guarantees made by the purchaser on the acquisition project shall be earnestly fulfilled.

Only when all preconditions are met can the obligations of equity transfer and payment be fulfilled.

19.10.3 statements, warranties and commitments of the acquirers, including:

The target company assures the acquirer that there are no major problems affecting the acquisition.

The acquirer assures the target company that it has the qualification and financial resources to make the acquisition.

The target company's commitment to fulfill its acquisition obligations and its director's responsibility letter.

19. 1.4 Appraisal of acquired assets.

19. 1.5. Determine the total investment transfer price.

19. 1.6 Determine the transfer conditions.

19. 1.7 Determine the quantity (share ratio) and delivery date of capital contribution transfer.

19. 1.8 Determine the present value of the capital contribution to be transferred.

19.10.9 set the payment method and time, consider setting up bilateral supervision accounts or third-party supervision accounts in financial institutions when necessary, and set the supervision procedures and conditions to minimize the credit risk and ensure the smooth performance of the acquisition contract.

19. 1. 10 determines the commitment of taxes and other expenses incurred in the process of capital contribution transfer.

19.1.11restrictive clauses.

19. 1. 12 determines the liability for breach of contract and damages.

19. 1. 13 sets a contingent damage clause, that is, before the completion of the acquisition, if the acquirer suffers from tax and environmental disputes due to the business behavior of the target company, the acquirer shall bear the corresponding compensation liability.

19. 1. 14 set the force majeure clause.

19. 1. 15 sets other clauses such as contract termination, delivery of acquisition target, acquisition completion conditions, confidentiality, legal application, dispute resolution, etc.

19.2 annexes to the purchase contract, which generally include:

19.2. 1 financial audit report of the target company;

19.2.2 asset appraisal report of the target company;

19.2.3 Land transfer agreement of the target company;

19.2.4 documents approved by the government for transfer;

19.2.5 Other relevant rights transfer agreements;

19.2.6 list of fixed assets and machinery and equipment of the target company;

19.2.7 List of current assets of the target company;

19.2.8 List of creditor's rights and debts of the target company;

19.2.9 List of external guarantees provided by the target company;

19.2 minutes. 10 joint meeting;

19.2. 1 1 negotiation record.

19.2. 12 lawyers can choose to add or delete the contents of the above annexes according to the actual situation and on the premise of complying with laws and regulations.

Article 20 Effective terms of an acquisition contract.

Lawyers should draw the client's attention to the fact that if the acquisition project involves the approval of the relevant state departments, they should advise the client to agree that the acquisition contract will take effect from the date of approval. In other cases, the conditions and time for the contract to take effect may be agreed according to the actual situation of the client.

Chapter VII Performance of Procurement Contracts

Article 2 1 During the performance stage of the acquisition, the lawyer's work mainly includes:

2 1. 1 Draw up a "Performance Memorandum" for all parties to the acquisition, listing all the documents required for performance, and verify it when the documents are available to determine whether the contract can be started.

2 1.2 Assist customers to hold verification meetings.

2 1.3 go through the approval procedures according to relevant laws and regulations.

2 1.4 assist in the registration, re-registration and cancellation of all changes involved in the acquisition.

Article 22 Where a lawyer assists the purchaser or the target company in drafting or obtaining, the documents and materials that need to be submitted to the relevant government departments include:

22. 1 shareholder change application;

22.2 The original contracts and articles of association of the parties before the acquisition and their modification agreements;

22.3 Copy of the approval certificate and business license of the purchaser;

22.4 resolutions of the board of directors and shareholders' meeting of the target company on the transfer of capital contribution;

22.5 List of members of the board of directors after the change of capital contribution;

22.6 Capital contribution transfer agreement signed by all parties to the acquisition and signed by other shareholders or recognized in other written forms;

Other documents required by the examination and approval authority.

Article 23 Matters in the performance stage of acquisition

23. 1 After the buyer has paid all the transfer money and faxed the payment voucher to the transferor, the certified public accountant designated by the transferor or agreed by both parties shall verify whether the transfer money has arrived in the account and fax the verification report to the buyer within the agreed working day.

23.2 Delivery of acquisition target and change of shareholders' register. Both parties to the acquisition and the target company shall timely handle the delivery procedures of the acquired assets and the registration procedures for the change of the acquired equity, including the delivery procedures and registration procedures involving the change of the ownership of the assets, as well as the change of the register of shareholders of the target company and the issuance of the capital contribution certificate of new shareholders during the equity acquisition.

23.3 Transfer of shareholders' rights and obligations. The capital contribution transfer agreement may stipulate that after the transfer target is delivered, the transferor will no longer enjoy any shareholder rights as a shareholder of the target company and will no longer bear any obligations, responsibilities or losses of the target company; The acquirer will become a shareholder of the target company and continue to perform the shareholders' rights and obligations stipulated in the promoter agreement and the articles of association of the target company instead of the transferor.

23.4 The new shareholders sign new joint venture (cooperation) agreements with other shareholders of the company, modify the original articles of association and rules of procedure, and replace new directors. After signing a new joint venture (cooperation) agreement and new articles of association, the company will issue a new shareholder contribution certificate, change the company's shareholder list, and submit an application for registration or filing of shareholders, capital contribution and articles of association change of the target company to the industrial and commercial administration authority within 30 days after the change.

Article 24 special tips

The lawyer shall remind the client of the difference between the transfer of capital contribution and the entry into force of the acquisition contract. Unless the laws and regulations clearly stipulate that the transfer of capital contribution needs to be approved by the competent department, or the parties have agreed on the effective conditions, it will generally take effect from the date when the contract subject signs and seals it. The entry into force of the capital contribution transfer is based on the entry into force of the contract, but the entry into force of the capital contribution transfer contract does not necessarily mean that the capital contribution will be transferred from the entry into force of the contract, and its entry into force may also meet the conditions prescribed by law or be agreed by the parties according to the nature of the company.

2005-3- 15,