利用外资改组国有企业暂行规定 Using Foreign Investment to Reorganize State-owned Enterprises Tentative Provisions

evant agreements for the disposal of claims and debts with the creditors.

　　4. The Reorganizing Party shall publish information on the reorganization， recruit Foreign Investors extensively and investigate the Foreign Investors' qualifications， reputation， financial position， management capabilities， payment guarantees， business ethics， etc. It shall give priority consideration to medium and long-term Foreign Investors that can offer advanced technology， management experience and a high degree of industrial compatibility.

　　The Reorganizing Party and the Foreign Investor shall respond to the reasonable demands of the opposite party by providing relevant truthful and detailed information and data， may not mislead or deceive the opposite party and shall bear the appropriate confidentiality obligations.

　　5. If the enterprise reorganization is to be effected through the assignment of State-owned Property Rights or the sale of assets， the Reorganizing Party shall preferentially opt for an open competitive pricing method to determine the Foreign Investor and assignment price. When selecting an open competitive pricing method of assignment， the relevant procedures shall be carried out in accordance with the law and the relevant details on the State-owned Property Rights to be assigned or the assets to be sold shall be announced publicly. If assignment by agreement is opted for， such assignment shall be conducted in an open manner.

　　Regardless of the assignment method opted for， the Reorganizing Party and the Foreign Investor shall execute an assignment agreement in accordance with the relevant State regulations and these Provisions. The terms of the assignment agreement shall mainly include the basic information on the State-owned Property Rights to be assigned， the settlement arrangements for the staff and workers， the disposal of claims and debts， the assignment ratio， the assignment price， the method of payment and payment conditions， matters relating to the delivery of the property rights， corporate restructuring， etc.

　　Article 9　The Use of Foreign Investment to Reor

ganize State-owned Enterprises shall be effected in accordance with the following procedure：

　　1. The Reorganizing Party （if there are two or more Reorganizing Parties， one shall be selected as the Reorganizing Party） shall submit a reorganization application to the competent department in charge of foreign trade and economic cooperation at the same level. Such documents as a feasibility study， details of the Reorganizing Party and the Enterprise to be Reorganized， details of the Foreign Investor （including its financial statements for the most recent three years audited by a certified accountant and the market share accounted for by the products or services of the enterprises in the same industry in China actually controlled by the Foreign Investor）， the reorganization program （including the arrangements for the settlement of staff and worker and for the disposal of claims and debts and the corporate restructuring program）， the business scope and equity structure of the reorganized enterprise （including the enterprises in which it has a direct or indirect interest） shall be included with the reorganization application materials.

　　The department in charge of foreign trade and economic cooperation that received the application shall examine the same in accordance with the authority bestowed by the Guiding the Direction of Foreign Investment Provisions and the relevant laws and regulations. If an enterprise operated by the central government or Party authorities and its wholly-owned enterprises or the enterprises in which it has controlling interest is to be reorganized， or if the Enterprise to be Reorganized directly or indirectly holds equity in a listed company or if the reorganized enterprise is to have total assets of not less than US$30 million， the examination shall be conducted by the State Council department in charge of foreign trade and economic cooperation. If the reorganization of such an enterprise might lead to monopolization of the market or impede fair competition， hearings shall be organized before the examination. The department in charge of foreign trade and economic cooperation shall issue its official reply on whether or not it consents to the reorganization within 45 working days after receipt of the reorganization application materials. If hearings are held， the official reply shall be issued within three months.

　　If the State has other regulations on the use of foreign investment in the industry of which the Enterprise to be Reorganized and the enterprises in which it has a direct or indirect interest are a part or on the change in the nature of the State-owned shares of the Owners of the State-owned Property Rights in a listed company arising due to the change in the property rights， such regulations shall prevail.

　　2. The assignment agreement executed by the Reorganizing Party and the Foreign Investor shall be submitted for approval in accordance with the relevant provisions of the Ministry of Finance， Issue of the Circular （ref. Cai Qi [2001] No.325）。 The assignment agreement shall enter into effect upon approval.

　　Such documents as the State-owned Property Rights Registration Certificate， information on the approval or record filing of the audit report and asset appraisal report of the Enterprise to be Reorganized， the staff and worker settlement program， the claim and debt agreement， the corporate restructuring program， the relevant resolutions of the Reorganizing Party and the Enterprise to be Reorganized， the opinions or resolution of the staff and worker congress of the Enterprise to be Reorganized， etc. shall accompany the assignment agreement.

　　3. The Reorganizing Party or the Enterprise to be Reorganized shall， on the strength of the approval documents for the reorganization application and assignment agreement， carry out examination and approval procedures for foreign-invested enterprises in accordance with the law. If the reorganized enter

prise is to be a company limited by shares， matters shall be handled in accordance with the relevant provisions of the PRC Company Law.

　　4. The reorganized enterprise or the investors shall， on the strength of the approval documents specified in Items （1） and （3） of this Article and in accordance with laws and regulations on the administration of registration， carry out registration procedures with the original registration authority， if it has the authority to register foreign-invested enterprises， or the registration authority with the authority to register foreign-invested enterprises of the place where the enterprise is located. If the reorganized enterprise is to be a company limited by shares， matters shall be handled in accordance with the relevant provisions of the PRC Company Law.

　　5. The Reorganizing Party shall， on the strength of the approval documents for the reorganization application and assignment agreement， the foreign investment exchange registration certificate and the relevant documents， carry out the procedures for the delivery of State-owned Property Rights and the procedures for registration of the change of ownership in accordance with relevant provisions and engage a certified accountant to issue a capital verification report in accordance with the law. If the land to be used by the reorganized enterprise is State-owned allocated land， the procedures for the examination and approval and granting of leaseholds shall be carried out in accordance with the law.

　　6. The foreign exchange proceeds derived by the Reorganizing Party from the assignment of State-owned Property Rights or claims or the sale of assets shall be settled after reporting to the foreign exchange department for its approval on the strength of the approval documents for the reorganization application and assignment agreement and the relevant documents.

　　If the Enterprise to be Reorganized is to be reorganized through a capital and share increase effected through the attraction of investment from Foreign Investors， it may， subject to the approval of the foreign exchange department， open a foreign exchange capital account to retain the foreign exchange funds injected by the Foreign Investors.

　　7. The reorganization applications， assignment agreements and the approval certificates therefor of key State enterprises， enterprises whose debt to equity swaps have been approved by the State and enterprises in the restricted category of industries in the Foreign Investment Industrial Guidance Catalogue that are under the investment limit and that are subject to the examination and approval of local departments in charge of foreign trade and economic cooperation and finance shall be submitted to the State Council departments in charge of foreign trade and economic cooperation and finance respectively for the record.

　　Article 10　Foreign Investors shall pay the assignment price or make their capital contributions in the form of a freely convertible currency or other lawful property rights remitted from overseas. Subject to the approval of the foreign exchange department， they may also pay the assignment price or make their capital contributions in the form of net Renminbi profits or other lawful property rights obtained in China. The afore-mentioned other lawful property rights shall include the following：

　　1. property obtained by Foreign Investors originating from the liquidation of， the assignment of the equity of， the advance recovery of investment from or the reduction in the capital of other foreign-invested enterprises established by them in China；

　　2. the State-owned Property Rights or assets of State-owned enterprises or company system e

┨网页设计特效库┠ http://www。z┗co⊙l。com/网页特效/