外国投资者并购境内企业暂行规定 Merger with and Acquisition of Domestic Enterprises by Foreign Investors Tentative P

对外贸易经济合作部、国家税务总局、国家工商行政管理总局、国家外汇管理局令[2003]年第3号

（Promulgated by the Ministry of Foreign Trade and Economic Cooperation， State Administration of Taxation， State Administration for Industry and Commerce and State Administration of Foreign Exchange on 7 March 2003 and effective as of 12 April 2003.）

颁布日期：20030307 　实施日期：20030412 　颁布单位：对外贸易经济合作部、 国家税务总局、 国家工商行政管理总局、 国家外汇管理局

　　Article 1　These Provisions are formulated in accordance with the laws and administrative regulations concerning foreign-invested enterprises and other relevant laws and administrative regulations in order to promote and standardize investment by foreign investors in China， introduce foreign advanced technology and management experience， enhance the level of utilization of foreign investment， realize reasonable allocation of resources， ensure employment and safeguard fair competition and national economic security.

　　Article 2　For the purposes of these Provisions， the term “merger with and acquisition of domestic enterprises by foreign investors” shall mean a foreign investor purchases the equities of the shareholders of a non-foreign-invested enterprise in China （Domestic Company） by agreement or subscribes to the capital increase of a Domestic Company， so as to convert and re-establish the Domestic Company as a foreign-invested enterprise （Equity Merger and Acquisition）； or， a foreign investor establishes a foreign-invested enterprise and purchases by agreement and operates the assets of a domestic enterprise through that enterprise， or， a foreign investor purchases the assets of a domestic enterprise by agreement and establishes a foreign-invested enterprise with such assets to operate the assets （Asset Merger and Acquisition）。

　　Article 3　Merger with and acquisition of domestic enterprises by foreign investors shall comply with the laws， administrative regulations and departmental rules of China and follow the principles of fairness and reasonableness， consideration for equal value and good faith， shall not result in excessive concentration， exclusion or restriction of competition， and shall not interfere with the social and economic order or harm the public interest.

　　Article 4　Merger with and acquisition of domestic enterprises by foreign investors shall comply with the requirements of the laws， administrative regulations and departmental rules of China regarding qualifications of investors and industrial policies.

　　In an industry where the Foreign Investment Industrial Guidance Catalogue does not permit enterprises wholly owned by foreign investors， no merger and acquisition may result in foreign investors holding the entire equity interest of an enterprise. In an industry in which the Chinese party must have a controlling interest or a relative controlling interest， the Chinese party shall maintain its controlling or relative controlling interest in the enterprise after the enterprise in that industry is merged and acquired. In an industry in which participation of foreign investors is prohibited， foreign investors may not merge with or acquire any enterprise in that industry.

　　Article 5　Establishment of foreign-invested enterprises by foreign investors by way of merger with and acquisition of domestic enterprises shall be subject to approval of the examination and approval authority pursuant to these Provisions and require the registration of the change or registration of establishment with the registration administration authority. The ratio of the capital contribution of the foreign investor in the registered capital of the foreign-invested enterprise established upon merger and acquisition shall not be less than 25% in general. If the ratio of capital contribution of the foreign investor is less than 25%， the establishment of the enterprise shall be examined， approved and registered pursuant to the existing procedures for examination，

approval and registration of establishment of foreign-invested enterprises， except otherwise provided in laws and administrative regulations. The examination and approval authority shall annotate the words “ratio of foreign investment less than 25%” in the foreign-invested enterprise approval certificate issued to the enterprise. The registration administration authority shall annotate the words “ratio of foreign investment less than 25%” in the foreign-invested enterprise business licence issued to the enterprise.

　　Article 6　For the purposes of these Provisions， the examination and approval authority shall be the PRC Ministry of Foreign Trade and Economic Cooperation （MOFTEC） or the department in charge of foreign trade and economic cooperation at provincial level （Examination and Approval Authority at Provincial Level）， and the registration administration authority shall be the PRC State Administration for Industry and Commerce （SAIC） or its authorized local administration for industry and commerce.

　　If a foreign-invested enterprise established upon merger and acquisition is of such a particular type or industry that requires examination and approval of MOFTEC according to the provisions of laws， administrative regulations and departmental rules， the Examination and Approval Authority at Provincial Level shall forward the application documents to MOFTEC for examination and approval， and MOFTEC shall decide to approve or disapprove the application in accordance with the law.

　　Article 7　In an Equity Merger and Acquisition by foreign investors， the foreign-invested enterprise established upon merger and acquisition shall succeed to the claims and debts of the target Domestic Company.

　　In an Asset Merger and Acquisition by foreign investors， the domestic enterprise selling its assets shall assume its original claims and debts.

　　The foreign investors， the target domestic enterprise， the creditors and other parties concerned may enter into a separate agreement on the disposition of the claims and debts of the target domestic enterprise， provided that such agreement does not harm the interests of any third party and the public interest. The agreement on the disposition of claims and debts shall be submitted to the examination and approval authority.

　　The domestic enterprise selling its assets shall， within 10 days of its resolution concerning sale of assets， issue a notice to its creditors and publish an announcement on a national newspaper at or above provincial level. Within 10 days of the date of receipt of the notice or the publication of the announcement， the creditors shall have the right to demand the domestic enterprise selling its assets to provide a corresponding security.

　　Article 8　The parties to a merger and acquisition shall determine the transaction price on the basis of the appraisal result of an asset appraisal institution on the value of the equities to be transferred or the assets to be sold. The parties to the merger and acquisition may agree on an asset appraisal institution established according to law in China. The asset appraisal shall adopt an internationally-accepted appraisal method.

　　If a merger with and acquisition of domestic enterprise by foreign investors leads to a change in the equities formed with State-owned assets or a transfer of the title of State-owned assets， an appraisal shall be conducted in accordance with the provisions concerning the administration of State-owned assets to determine the transaction price.

　　Transferring capital offshore in disguise by transferring equity or selling assets at a price that is obviously lower than the appraisal result is prohibited.

　　Article 9　If a foreign investor establishes a foreign-invested enterprise upon merger and acquisition of a domestic enterprise， the foreign investor shall， within three months of the date of issue of the business licence of the foreign-in

vested enterprise， pay the full consideration to the shareholder that transfers his equity interest or the domestic enterprise that sells the assets. In special circumstances where the payment period needs to be extended， subject to approval of the examination and approval authority， the foreign investor shall pay at least 60% of the full consideration within six months of the date of issue of the business licence of the foreign-invested enterprise and pay off the full consideration within one year， and shall distribute the earnings in accordance with the ratio of capital contribution actually paid-up.

　　In an Equity Merger and Acquisition by foreign investors， if there will be an increase in the capital of the foreign-invested enterprise established upon merger and acquisition， the investors shall stipulate the time limit for capital contribution in the contract and the articles of association of the foreign-invested enterprise established upon the conversion. If it is stipulated that the capital contribution shall be made in one lump sum， the investors shall pay capital contribution in full within six months of the date of issue of the business licence of the foreign-invested enterprise. If it is stipulated that the capital contribution shall be made in instalments， the first instalment of capital contribution of each investor may not be less than 15% of the amount to which it subscribes， and the contribution shall be paid in full within three months of the date of issue of the business licence of the foreign-invested enterprise.

　　In an Asset Merger and Acquisition by foreign investors， the investors shall stipulate the time limit for capital contribution in the contract and the articles of association of the foreign-invested enterprise to be established. If a foreign-invested enterprise is established to purchase by agreement

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