并购基金主要以获得成长期或成熟期企业的控制权为目标，通过重组等方式使企业价值获得提升。在供给侧结构性改革视角下，通过并购基金间接参与国企混改或将成为社会资本的最佳路径。本文旨在对并购基金参与国企混改涉及的实务问题进行简要分析。
运作模式：目前中国并购基金的参与主体主要分为侧重于收购方的券商直投、侧重于项目的私募股权投资机构（PE机构）和侧重于行业的上市公司。其中以上市公司与PE机构共同成立合伙制或公司制并购基金的模式最为成熟。
国企混改不仅包括国有资本、社会资本的交叉持股，而且涉及行业整合、公司治理等全方位的改革。并购基金参与国企混改的模式可升级为国有资本＋上市公司＋PE机构三方发起的运作方式。国有资本的注入能够吸引更多社会资本，缓解其资金压力；上市公司的参与不过多占用自有资金，可以避免触发重大资产重组，进而突破监管限制，并基于其市场透析及整合能力，协助政府提前实现产业布局；PE机构获得国有资本和上市公司的增信，能够充分发挥资金募集、投后管理、价值提升和提前锁定退出渠道等优势。
具体方式一是由PE机构或Special Purpose Vehicle（SPV）作为普通合伙人（GP），国有资本、上市公司及社会资本作为有限合伙人（LP）设立合伙制基金。由基金管理人（一般由PE机构担任）联合LP成立投资决策委员会对基金运作进行管理。同时国有资本出资方还可在投资决策委员会中保留一票否决权。
二是由国有资本、上市公司、PE机构及社会资本共同成立基金管理公司，具体的项目投资过程中还需另设新的SPV，由基金管理公司担任SPV的GP，PE机构外的其他股东可将资金注入SPV实现投资。
操作方式：并购基金获取股权的主要途径为股权转让和增资扩股，另外还可通过认购可转债、债转股等多种方式进行。根据拟收购目标企业的股权比例来看，并购基金可区分为控股型和参股型。
控股型并购基金用以获得目标企业的控制权，取得实施并购后整合的决策权，从而实现资源整合、重组及优化。国有集团公司或平台运营公司可引入控股型并购基金，以达到引入社会资本，促使下属企业重组、整合后整体上市等完善股权结构的目标。
参股型并购基金主要通过股权或债权融资为目标企业提供资本支持，不以获得控制权为目的。国有集团公司二级及以下企业在其层面进行多元化股权改革时，可选择引入参股型并购基金，以达到获取增值服务之目的。
注意事项：首先，关于GP与关联方的问题。依据《合伙企业法》的规定，国有独资公司、国有企业、上市公司以及公益性的事业单位和社会团体不得成为普通合伙人。同时根据《股票上市规则》的要求，还应注意避免并购基金成为上市公司的关联方。
第二，关于国有企业员工持股下级子公司的问题。《关于规范国有企业职工持股、投资的意见》、《关于实施<关于规范国有企业职工持股、投资的意见>有关问题的通知》对国有企业员工持有本企业、及各级子企业股权的行为进行了限制。实务中应综合考虑国有企业员工参与设立基金管理公司或跟投项目的问题，避免出现违规行为。
第三，国有股转持问题。上市退出时，根据《境内证券市场转持部分国有股充实全国社会保障基金实施办法》，国有股东应将其持有上市公司首次公开发行时实际发行股份数量的10%转由全国社会保障基金理事会持有。并购基金中国有出资比例高于50%或国有出资人作为最大权益持有人的，需注意履行国有股转持义务。
第四，国资监管问题。并购基金参与国企混改还应遵守国资监管的相关规定，落实防止国有资产流失的原则。特别是在国有产权转让的过程中要取得国资监管部门的批准、对目标资产进行评估、在产权交易机构公开或协议转让，并完成产权登记。
发展趋势：并购基金作为资源整合的高效方式，能够在政策和产业的层面有效贴合国企混改的需求。特别是在《关于规范金融机构资产管理业务的指导意见》发布后，操作方式和风险管理制度得到进一步规范的并购基金，或将更加获得国有资本的青睐、并在资本市场上借力爆发。
原文登载于《商法》杂志2018年第9期
Buyout Funds in Mixed-Ownership Reforms of SOEs
The main objective of a buyout fund is to secure control of an enterprise during its growth or mature phase before increasing its value through a restructuring or other such means. Perhaps, from the perspective of supply side structural reforms, the indirect participation in the mixed-ownership reform of SOEs through buyout funds will become the best route for private capital.
Operating model. Currently, the participating entities in Chinese buyout funds are mainly divided into securities house direct investment focusing on acquirers, private equity (PE) firms focusing on projects, and listed companies targeting the industry. Among them, the most mature model is one where a listed entity and a PE firm jointly establish a buyout fund as a partnership or a company.
The mixed-ownership reform of SOEs not only includes cross-shareholding state-owned capital and private capital, but also comprehensive reform, including industry integration, corporate governance, etc. The model in which a buyout fund participates in the mixed-ownership reform of a SOE can be upgraded to an operating method with three parties, namely state-owned capital plus listed company plus PE firm, serving as sponsors. The injection of state-owned capital can attract more private capital, mitigating funding pressures; the participation of a listed company prevents the tying up of excessive own funds, avoiding the triggering of a material asset restructuring, such that regulatory limitations can be surpassed and, based on its market transparency and integration capabilities, the listed company can assist the government in realizing its industry layout earlier; and, with the credit enhancement provided by the state-owned capital and the listed company, the PE firm can fully leverage its advantages in fundraising, post-investment management, value enhancement and locking in of a divestment channel in advance.
One of the specific methods involves a PE firm or special-purpose vehicle (SPV), as the general partner (GP), and the state-owned capital, listed company and private capital, as limited partners (LP), establishing a fund in the form of a partnership. The fund manager (usually a PE firm), together with the LP, establish an investment decision-making committee to manage the operations of the fund. Additionally, the party contributing the state-owned capital may retain veto power on the investment decision-making committee.
The second method involves the state-owned capital, listed company, PE firm and private capital jointly establishing a fund-management company, and, in the specific process of projects, a new SPV needs to be set up, in which the PE firm serves as GP, and shareholders outside the PE firm could inject funds to the SPV to realize the investment.
Operational method. The main ways for a buyout fund to acquire equity are through equity transfers and capital/share increases, but there are other means, such as subscribing to convertible bonds and debt-for-equity swaps, etc. Based on the percentage of the equity of the proposed target enterprise held, buyout funds can be divided into controlling buyout funds and participating buyout funds.
A controlling buyout fund realizes resource integration, restructuring and optimization by obtaining control of the target enterprise and securing the right to make the decisions on integration after acquisition. State-owned group enterprises and platform operating companies can take on controlling buyout funds to achieve the objectives of bringing in private capital and improving their equity structures by procuring the listing of their subsidiaries after their restructuring or integration thereof.
Participating buyout funds provide capital support for target companies mainly through equity or debt financing, and their objective is not control of such entities. When a Tier 2 or lower level entity in a state-owned group company carries out equity diversification reform at its level, it may opt to bring in a participating buyout fund to obtain value-added services.
Matters requiring attention. Firstly, the issue of the GP and connected parties. Pursuant to the Partnership Law, a wholly state-owned company, SOE, listed company, public welfare institution or association may not serve as a GP. Additionally, pursuant to the Stock Listing Rules, steps should be taken to avoid the buyout fund becoming a connected party of the listed company.
Secondly, the issue of employees of an SOE holding equity in lower level subsidiaries. The Opinions on Regulating the Equity Holdings and Investments of Employees of State-Owned Enterprises and the Notice on Issues Relevant to the Implementation of the Opinions on Regulating the Equity Holdings and Investments of Employees of State-Owned Enterprises restrict the holding by employees of SOEs of equity in their enterprise and subsidiaries at any level. In practice, the issue of employees of the SOE participating in the establishment of a fund management company or a co-investment project need to be comprehensively considered for compliance.
Thirdly, the issue of the transfer of the holding of state-owned shares. At the time of divestment on listing, a state-owned shareholder is required, pursuant to the Implementing Measures for the Transfer of the Holding of State-Owned Shares on Domestic Securities Markets to Top Up the National Social Security Fund, to transfer 10 per cent of the actual issued shares it holds at the time of the initial public offering of the listed company to the National Council for Social Security Fund. Where the state-owned capital contribution percentage in a buyout fund is greater than 50 per cent or the state-owned investor is its largest equity holder, attention needs to be paid to performing the obligation of transferring the holding of state-owned shares.
Fourthly, the issue of state-owned asset regulation. When a buyout fund participates in the mixed-ownership reform of an SOE, it is additionally required to comply with regulations related to state-owned assets, and implement the principle of guarding against the squandering these.Particularly, in the course of a transfer of state-owned property rights, it is necessary to secure approval from the state-owned asset regulator, carry out valuation of the target assets, carry out the transfer publicly on a property rights exchange or by agreement and complete title registration.
Development trends. As a highly effective method for integrating resources, buyout funds can effectively satisfy the requirements of the mixed-ownership reform of SOEs at the policy and industry levels. Particularly, after the issuance of the Guiding Opinions on Regulating the Asset Management Business of Financial Institutions, buyout funds, with operating methods and risk management systems made more compliant, will, perhaps, draw more interest from state-owned capital and explode the capital markets with their help.
Original source: CBLJ Issue 9, 2018