Merger and acquisition of industries that foreign investors are not allowed to operate alone in the Catalogue of Industries with Foreign Investment shall not lead to foreign investors holding all the shares of the enterprise; In the industry that needs Chinese holding or relative holding, after the merger of enterprises in this industry, China should still hold a holding or relative holding position in the enterprise; Foreign investors are prohibited from engaging in industries, and foreign investors are not allowed to acquire enterprises engaged in such industries. The examination and approval authority in these Provisions is the Ministry of Foreign Trade and Economic Cooperation of the People's Republic of China (hereinafter referred to as the MOFTEC) or the provincial foreign trade and economic department (hereinafter referred to as the provincial examination and approval authority), and the registration authority is the People's Republic of China (PRC) State Administration for Industry and Commerce or its authorized local administration for industry and commerce.
If the foreign-invested enterprise established after merger and acquisition belongs to a specific type or industry that should be examined and approved by MOFTEC according to laws, administrative regulations and departmental rules, the provincial examination and approval authority will forward the application documents to MOFTEC for examination and approval, and MOFTEC will decide whether to approve or not according to law. If a foreign investor acquires equity, the foreign-invested enterprise established after the acquisition shall inherit the creditor's rights and debts of the merged domestic company.
If a foreign investor purchases assets, the domestic enterprise that sells the assets shall bear its original creditor's rights and debts.
Foreign investors, merged domestic enterprises, creditors and other parties may reach a separate agreement on the disposal of creditor's rights and debts of the merged domestic enterprises, but the agreement shall not harm the interests of third parties and social public interests. The agreement on the disposal of creditor's rights and debts shall be submitted to the examination and approval authority.
When a domestic enterprise sells assets, it shall issue a notice to the creditors within 10 days from the date when the resolution on selling assets is made, and publish an announcement in newspapers at or above the provincial level distributed nationwide. Creditors have the right to require domestic enterprises selling assets to provide corresponding guarantees within 10 days from the date of receiving the notice or announcement. Both parties to the merger and acquisition shall take the evaluation results of the assets appraisal institution on the value of the equity to be transferred or the assets to be sold as the basis for determining the transaction price. Both parties to the merger may agree on an asset appraisal institution established in China according to law. Assets appraisal should adopt internationally accepted appraisal methods.
When the merger and acquisition of domestic enterprises by foreign investors leads to the transfer of property rights of changes in equity or state-owned assets, they should be evaluated according to the relevant provisions on the management of state-owned assets and determine the transaction price.
It is forbidden to transfer equity or sell assets at a price significantly lower than the evaluation result, and transfer capital abroad in disguise. If a foreign investor merges a domestic enterprise to establish a foreign-invested enterprise, the foreign investor shall pay all the consideration to the shareholder who transferred the equity or the domestic enterprise that sold the assets within 3 months from the date of issuing the business license of the foreign-invested enterprise. If the time limit needs to be extended due to special circumstances, after approval by the examination and approval authority, more than 60% of the total consideration shall be paid within 6 months from the date of issuance of the business license of the foreign-invested enterprise, and all the consideration shall be paid within 1 year, and the income shall be distributed in proportion to the paid-in capital contribution.
If a foreign investor acquires equity, and a foreign-invested enterprise established after the acquisition increases its capital, the investor shall stipulate the capital contribution period in the contract and articles of association of the foreign-invested enterprise to be changed. Where it is stipulated to pay the capital contribution in one lump sum, the investor shall pay it within six months from the date of issuing the business license of the foreign-invested enterprise; If it is agreed to pay the contribution by installments, the initial contribution of the investors shall not be less than 65,438+05% of their respective subscribed contributions, and shall be paid in full within 3 months from the date of issuance of the business license of the foreign-invested enterprise.
Where a foreign investor purchases assets, the investor shall stipulate the investment period in the contract and articles of association of the foreign-invested enterprise to be established. Where a foreign-invested enterprise is established to purchase and operate the assets of a domestic enterprise through an enterprise agreement, the investor shall pay the capital contribution equivalent to the consideration of the assets within the period of consideration payment specified in the first paragraph of this article; The remaining capital contribution shall be paid in accordance with the provisions of the second paragraph of this article.
If a foreign investor merges a domestic enterprise to establish a foreign-invested enterprise, and the proportion of foreign investor's contribution is less than 25%, if the investor makes contribution in cash, it shall be paid within 3 months from the date of issuing the business license of the foreign-invested enterprise; Investors who make contributions in kind or industrial property rights shall pay in full within 6 months from the date when the business license of the foreign-invested enterprise is issued.
As a way to pay the consideration, it shall comply with the provisions of relevant state laws and administrative regulations. Foreign investors who use the stocks they have the right to dispose of or the legally owned RMB assets as the means of payment must obtain the approval of the foreign exchange administration department. The foreign investor agrees to buy the shares of the shareholders of the domestic company. After the domestic company is changed into a foreign-invested enterprise, the registered capital of the foreign-invested enterprise is the registered capital of the original domestic company, and the foreign investor's contribution ratio is the proportion of the purchased shares to the original registered capital. If the domestic company that acquired the equity increases its capital at the same time, the registered capital of the foreign-invested enterprise established after the merger shall be the sum of the registered capital of the original domestic company and the capital increase; On the basis of assets evaluation of domestic companies, foreign investors and other original investors of the merged domestic companies shall determine their respective investment proportions in the registered capital of foreign-invested enterprises.
If the domestic company is changed into a foreign-invested enterprise after the foreign investor subscribes for the capital increase of the domestic company, the registered capital of the foreign-invested enterprise shall be the sum of the registered capital of the original domestic company and the capital increase. On the basis of assets evaluation of domestic companies, foreign investors and other original shareholders of the merged domestic companies shall determine their respective capital contribution ratios in the registered capital of foreign-invested enterprises.
China natural person shareholders of domestic companies with equity acquisition who have enjoyed shareholder status in the original company for more than one year may continue to be Chinese investors of foreign-invested enterprises after the change upon approval. In the case of equity merger and acquisition by foreign investors, the upper limit of the total investment of foreign-invested enterprises established after the merger shall be determined according to the following proportions:
(1) If the registered capital is less than $2 10/00000, the total investment shall not exceed17% of the registered capital;
(2) If the registered capital is more than $2 10/00000 to $5 million, the total investment shall not exceed twice the registered capital;
(3) If the registered capital is more than $5 million to12 million, the total investment shall not exceed 2.5 times of the registered capital;
(4) If the registered capital12 million USD or more, the total investment shall not exceed 3 times of the registered capital. In the case of a foreign investor's equity merger, the investor shall submit the following documents to the examination and approval authority with corresponding examination and approval authority according to the total investment of the foreign-invested enterprise established after the merger:
(1) The resolution that the shareholders of the merged domestic limited liability company unanimously agree to the equity merger of foreign investors, or the resolution that the shareholders' meeting of the merged domestic limited liability company agrees to the equity merger of foreign investors;
(2) An application for the merged domestic company to be established as a foreign-invested enterprise according to law;
(3) The contract and articles of association of the foreign-invested enterprise established after the merger;
(4) An agreement for foreign investors to purchase the equity of shareholders of domestic companies or subscribe for capital increase of domestic companies;
(5) The financial audit report of the merged domestic company in the latest fiscal year;
(six) the identity certificate, business certificate and credit certificate of the investor;
(7) Description of the enterprise invested by the merged domestic company;
(8) Business licenses (photocopies) of the merged domestic companies and their invested enterprises;
(9) The employee placement plan of the merged domestic company;
⑽ Documents required by Articles 7 and 19 of these Provisions.
Where the acquisition of the business scope, scale and land use right of a foreign-invested enterprise established after the merger involves the permission of other relevant government departments, relevant permission documents shall be submitted together.
The business scope of the original invested company of the merged domestic company shall meet the requirements of relevant foreign investment industrial policies; Do not meet, should be adjusted. The equity purchase agreement and capital increase agreement of domestic companies stipulated in Article 12 of these Provisions shall be governed by the laws of China, and include the following main contents:
(1) The identities of the parties to the agreement, including name (name), domicile, name, position and nationality of the legal representative;
(two) the purchase of equity or subscription for capital increase of shares and the price;
(3) The time limit and method for performing the agreement;
(four) the rights and obligations of the parties to the agreement;
5] Liability for breach of contract and dispute resolution;
(six) the time and place of signing the agreement. Where a foreign investor conducts asset merger and acquisition, the investor shall submit the following documents to the examination and approval authority with corresponding examination and approval authority according to the total investment, enterprise type and industry of the foreign-invested enterprise to be established, and in accordance with the provisions of laws, administrative regulations and departmental rules on the establishment of foreign-invested enterprises:
(a) the resolution of the property right holder or authority of the domestic enterprise to agree to sell the assets;
(2) An application for the establishment of a foreign-invested enterprise;
(3) The contract and articles of association of the foreign-invested enterprise to be established;
(4) The asset purchase agreement signed between the foreign-invested enterprise to be established and the domestic enterprise, or the asset purchase agreement signed between the foreign investor and the domestic enterprise;
(5) Articles of Association and business license of the merged domestic enterprise (copy);
(six) the certificate of the notice and announcement of the creditors of the merged domestic enterprise;
(seven) the identity certificate or business certificate of the investor and the relevant credit certificate;
(eight) the employee placement plan of the merged domestic enterprise;
(9) Documents required by Articles 7 and 19 of these Provisions.
Where the purchase and operation of assets of domestic enterprises in accordance with the provisions of the preceding paragraph involves the permission of other relevant government departments, relevant license documents shall be submitted together.
If a foreign investor agrees to purchase the assets of a domestic enterprise and set up a foreign-invested enterprise with the assets, it shall not conduct business activities with the assets before the establishment of the foreign-invested enterprise. The asset purchase agreement stipulated in Article 15 of these Provisions shall be governed by the laws of China, and shall include the following main contents:
(1) Natural information of each party to the agreement, including name (name), domicile, name, position and nationality of legal representative;
(2) List and price of assets to be purchased;
(3) The time limit and method for performing the agreement;
(four) the rights and obligations of the parties to the agreement;
5] Liability for breach of contract and dispute resolution;
(six) the time and place of signing the agreement. Except as otherwise provided in Article 20 of these Provisions, the examination and approval authority shall decide whether to approve or disapprove the merger and acquisition of domestic enterprises by foreign investors within 30 days from the date of receiving all the required documents. If approval is decided, the approval certificate of the foreign-invested enterprise shall be issued by the examination and approval authority.
If a foreign investor agrees to buy shares of shareholders of a domestic company, and the examination and approval authority decides to approve it, it shall also send a copy of the relevant approval documents to the transferor of shares and the foreign exchange administration department where the domestic company is located. The foreign exchange administration department at the place where the equity transferor is located shall handle the foreign exchange registration formalities for it, and issue the foreign exchange registration certificate that the consideration for the equity merger and acquisition of foreign investors has been paid in place. Foreign investors who purchase assets shall, within 30 days from the date of receiving the approval certificate of foreign-invested enterprises, apply to the registration authority for registration of establishment and obtain the business license of foreign-invested enterprises.
Where a foreign investor acquires equity, the acquired domestic company shall apply to the original registration authority for registration of change in accordance with these Provisions and obtain a business license for a foreign-invested enterprise. If the original registration authority has no registration jurisdiction, it shall transfer it to the registration authority within 10 days from the date of receiving the application documents, and attach the domestic company registration file. When applying for change registration, the merged domestic company shall submit the following documents and be responsible for their authenticity and validity:
(1) An application for change of registration;
(two) the shareholders' meeting (shareholders' meeting) resolution on equity transfer or capital increase made by the merged domestic company in accordance with the Company Law of People's Republic of China (PRC) and the articles of association;
(3) An agreement for foreign investors to purchase the equity of shareholders of domestic companies or subscribe for capital increase of domestic companies;
(4) The revised articles of association or amendments to the original articles of association and the contracts of foreign-invested enterprises that need to be submitted according to law;
5. Approval certificate of foreign-invested enterprise;
(six) the identity certificate or business certificate and credit certificate of the foreign investor;
(7) The revised list of the board of directors, the documents recording the names and domiciles of the newly-added directors, and the appointment documents of the newly-added directors;
(8) Other relevant documents and certificates as stipulated by the State Administration for Industry and Commerce.
When transferring state-owned shares and foreign investors subscribe for capital increase of state-owned stock companies, they shall also submit the approval documents of the competent economic and trade department.
Within 30 days from the date of obtaining the business license of a foreign-invested enterprise, the investor shall go through the registration formalities with the relevant departments such as taxation, customs, land management and foreign exchange management. If a foreign investor merges a domestic enterprise under any of the following circumstances, the investor shall report to the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce:
(1) The turnover of M&A in China market in that year exceeded RMB 654.38+0.5 billion;
(2) More than 10 enterprises have acquired domestic related industries within one year;
(3) The market share of the M&A party in China reaches 20%;
(4) The market share of M&A leader in China is 25%.
Although the conditions specified in the preceding paragraph are not met, at the request of domestic enterprises, relevant functional departments or trade associations that should have competitive relations, MOFTEC or the State Administration for Industry and Commerce may also require foreign investors to make a report if they believe that the merger and acquisition of foreign investors involves a huge market share or there are other important factors that seriously affect market competition or the national economy, people's livelihood and national economic security.
One party to the above merger and acquisition includes the affiliated enterprises of foreign investors. For overseas mergers and acquisitions under any of the following circumstances, the acquirer shall submit the merger and acquisition plan to the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce before announcing the merger and acquisition plan or reporting it to the competent authorities of the host country. The Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce shall examine whether there is any situation that causes excessive concentration of the domestic market, hinders legitimate domestic competition and harms the interests of domestic consumers, and make a decision on whether or not to agree:
(1) The overseas M&A party has assets of more than RMB 3 billion in China;
(2) The turnover of one party to overseas M&A in China market in that year was more than 654.38+0.5 billion yuan;
(3) The market share of the overseas M&A party and its affiliated enterprises in China reaches 20%;
(4) Due to overseas M&A, the market share of the overseas M&A party and its affiliated enterprises in China reached 25%;
5. As a result of overseas mergers and acquisitions, there will be more than 15 foreign-invested enterprises directly or indirectly involved in domestic related industries. Under any of the following circumstances, the parties to a merger may apply to the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce for exemption from review:
(a) to improve the conditions of fair competition in the market;
(2) Reorganizing loss-making enterprises to ensure employment;
(3) Introduce advanced technology and management talents to improve the international competitiveness of enterprises;
(4) It can improve the environment. These Provisions shall apply to the merger and acquisition of domestic enterprises by investment companies legally established by foreign investors in China.
Foreign investors' equity merger and acquisition of domestic foreign-invested enterprises shall be governed by the existing laws and administrative regulations on foreign-invested enterprises and the Provisions on Changes in Shareholders' Rights and Interests of Foreign-invested Enterprises. If there are no provisions, these provisions shall apply. These Provisions shall come into force as of April 2, 2003.