Merger & acquisition 2

Mergers and acquisitions (M&A) are a big part of corporate finance. This article will continue to discuss the merger and acquisition and will put the emphasis on acquisition.

Acquisition overview
Like mergers, acquisitions are actions through which companies seek economies of scale, efficiencies and enhanced market visibility. Unlike all mergers, all acquisitions involve one firm purchasing another - there is no exchange of stock or consolidation as a new company. Acquisitions are often congenial, and all parties feel satisfied with the deal. Other times, acquisitions are more hostile.

In an acquisition, as in some of the merger deals we discuss above, a company can buy another company with cash, stock or a combination of the two. Another possibility, which is common in smaller deals, is for one company to acquire all the assets of another company. Company X buys all of Company Y's assets for cash, which means that Company Y will have only cash (and debt, if they had debt before). Of course, Company Y becomes merely a shell and will eventually liquidate or enter another area of business.

Another type of acquisition is a reverse merger, a deal that enables a private company to get publicly-listed in a relatively short time period. A reverse merger occurs when a private company that has strong prospects and is eager to raise financing buys a publicly-listed shell company, usually one with no business and limited assets. The private company reverse merges into the public company, and together they become an entirely new public corporation with tradable shares.

Regardless of their category or structure, all mergers and acquisitions have one common goal: they are all meant to create synergy that makes the value of the combined companies greater than the sum of the two parts. The success of a merger or acquisition depends on whether this synergy is achieved.

Acquisition by foreign investors in China
A foreign investor who desires to conduct acquisition transaction in China would most commonly do so in one of the following ways:
􀂾 Equity Acquisition
􀂾 Asset Acquisition

Equity Acquisition
The foreign investor may purchase all or part of the non-listed equity interest of the target company direct from one of the existing investors, or by subscribing to any increased capital of the target. Equity acquisition transactions are conducted within the PRC and will be subject to the full approval of the PRC authorities, which can be time consuming, and such approval is discretionary.
While an asset transaction by itself would not trigger any corporate conversion into Foreign Invested Enterprises and the vendor company will remain the same type of company after the transaction, if the target company has sold the whole or the vast majority of its business or assets to the purchaser of an Foreign Invested Enterprises, the asset acquisition may be followed by liquidation and dissolution of the vendor company.

Finally, separate procedures may be required if the new foreign investor wishes to amend the corporate details of its own PRC entity or the target company (name change, change of corporate officers, etc.) upon completion of the transactions. If any employees are transferred pursuant to the transaction, the relevant labor bureau registrations should also be amended.

Asset Acquisition
The foreign investor may, using a new Foreign Invested Enterprises or an existing Foreign Invested Enterprises as an acquiring vehicle, purchase directly some or all of the business and assets of the target company. The transaction is also subject to approval of the Chinese authorities. Chinese law generally permits only a foreign purchaser who has established a registered presence in the form of an Foreign Invested Enterprises to acquire and operate domestic assets, be it a new Foreign Invested Enterprises established for the purpose of acquiring the assets or an existing and operative Foreign Invested Enterprises. While the purchase and ownership of certain assets by foreign individuals or entities is not prohibited, generally the acquisition and operations of assets for business purposes would require the establishment of a Foreign Invested Enterprises.