Provisions on the Acquisition of Domestic Enterprises by Foreign Investors (Chinese and English Text)
Major Law
Additional Laws and Regulations
Short Summary
The following translation was retrieved from the Ministry of Commerce Web site on October 17, 2006. The Chinese text was retrieved from the Ministry of Commerce Web site on August 15, 2006.
Regulations for Merger with and Acquisition of Domestic Enterprises by Foreign Investors Tuesday,October 17,2006 Posted: 10:46 BJT(0246 GMT) CAITEC Catalogue Chapter I General Principles Chapter II Basic Rules Chapter III Examination, Approval and Registration Chapter IV Foreign Investors’ Merger with and Acquisition of Domestic Companies Based on the Payment of Equities Section 1 Conditions for Equity M&A Section 2 Application documents and procedures Section 3 Special provisions for the company with special purpose Chapter V Anti-monopolization Examination Chapter VI Supplementary Provisions Chapter I General Principles Article 1 These Provisions are formulated in accordance with the laws and administrative regulations concerning foreign-invested enterprises, Company Law and other relevant laws and administrative regulations in order to promote and standardize foreign investors’ investment in China, introduce foreign advanced technology and management experience, enhance the level of utilizing foreign investment, realize reasonable allocation of resources, ensure employment, safeguard fair competition and national economic security. Article 2 “Merger with and acquisition of domestic enterprises by foreign investors” in terms of these Regulations means a foreign investor purchases the stock right of a shareholder of a non-foreign-invested enterprise in China (domestic company）or capital increase of a domestic company so as to convert and re-establish a domestic company as a foreign-invested enterprise (equity merger and acquisition); or, a foreign investor establishes a foreign-invested enterprise and purchases and operates the assets of a domestic enterprise by the agreement of that enterprise, or, a foreign investor purchases the assets of a domestic enterprise by agreement and uses this asset investment to establish a foreign-invested enterprise and operate the assets （Asset Merger and Acquisition）. Article 3 Foreign investors’ merger with and acquisition of domestic enterprises shall comply with the laws, administrative regulations and 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 social economic order or harm social public interests. Article 4 Foreign investors’ merger with and acquisition of domestic enterprises shall comply with the requirements stipulated by laws, administrative regulations and rules of China, and policies concerning industry, land and environment. According to the Guiding Catalogue of Foreign Invested Industry, to an industry that is not allowed to be operated by a sole foreign investor, its merger and acquisition shall not result in foreign investor holding the enterprise’s entire equity. To an industry that needs Chinese party to have the holdings or have relative holdings, and the Chinese party shall maintain its holdings or relative holdings in the enterprise after the enterprise in that industry is merged and acquired. To an industry that is forbidden to be operated by a sole foreign investor, the foreign investor shall not merge with or acquire any enterprise in that industry. The business range of the original invested enterprise of the merged or acquired domestic enterprise shall accord with the requirements of the policy concerning foreign-invested industry. Whichever does not meet the requirements shall be readjusted. Article 5 A foreign investor’s merger with or acquisition of domestic enterprises involving the transference of state owned equity and management of state owned equity of listed companies shall abide by corresponding regulations concerning the management of state owned assets. Article 6 A foreign investor establishes a foreign-invested enterprise by merging or acquiring a domestic enterprise shall be approved by the examination and approval organ in accordance with the provisions of these Regulations and register for changes or establish a registration to the registration management authority, Article 7 The persons concerned of all parties concerning foreign investor’s merger with and acquisition of domestic enterprises shall pay tax and accept the supervision of taxation authority in accordance with Taxation Law of China. Article 8 The persons concerned of all parties concerning foreign investor’s merger with and acquisition of domestic enterprises shall abide by the laws and administrative regulations of China concerning the administration of foreign exchange, go through the formalities of foreign exchange examination and approval, registration, record and changes in time to foreign exchange authority. Chapter II Basic Rules Article 9 If the ratio of financial contribution of a foreign investor in the registered capital of the foreign-invested enterprise established after the merger and acquisition (M&A) is more than 25 percent, this enterprise shall enjoy the treatment of a foreign-invested enterprise. If the ratio of financial contribution of the foreign investor in the registered capital of the foreign-invested enterprise established after merger and acquisition is less than 25%, this enterprise shall not enjoy the treatment of a foreign-invested enterprise except for separate provisions stipulated by laws and administrative regulations. Its Borrowing external debts shall be handled according to relevant provisions relating to domestic non-foreign-invested enterprises’ borrowing external debts. The examination and approval organ shall issue to it the Approval Certificate of Foreign-invested Enterprises with annotations “ratio of foreign investment less than 25%” (Approval Certificate). The registration administration authority and foreign exchange administration authority shall issue separately to it the Business License for foreign-invested enterprises with annotations “ratio of foreign investment less than 25%” and Foreign Exchange Registration Card. If domestic companies, enterprises or natural persons merge or acquire the domestic companies that have something to do with them in the name of the companies legally established or controlled by them in foreign countries, the established foreign-invested enterprises shall not enjoy the treatment of foreign-invested enterprises except that if the company in foreign countries offers to buy the capital increase of domestic companies, or increase capital to the enterprises established by this company in foreign country after merger, the sum of capital increase takes more than 25 per cent of the enterprise’s registered capital. To the foreign-invested enterprise established according to the way as prescribed in this section, except for the actual controller, the foreign investor provide funds more than 25 per cent of the enterprise’s registered capital, it may enjoy the treatment of foreign-invested enterprises. The treatment for the Foreign-invested enterprises established after foreign investor’s merger with or acquisition of the domestic listed companies shall be handled in accordance with relevant regulations of the state. Article 10 In terms of these Regulations, the examination and approval organ is the Ministry of Commerce of the People’s Republic of China or provincial commercial authority, the registration authority is State Administration for Industry and Commerce or its authorized local administration for industry and commerce, foreign exchange administrative authority is State Administration of Foreign Exchange and its branches. If the foreign-invested enterprises established after merger and acquisition are, according to the provisions of laws, administrative regulations and rules, the foreign-invested enterprises of special type or industry that shall be approved by the Ministry of Commerce, provincial examination and approval organ shall submit the applications to the Ministry of Commerce for approval, the Ministry of Commerce will make the decision whether or not to approve it. Article 11 The domestic companies. Enterprises or natural persons shall, when they merge or acquire domestic companies having something to do with them in the name of the companies in foreign countries legally established or controlled by them, be submitted to the Ministry of Commerce for approval. The person concerned shall not evade above requirements by domestic investment of the foreign-invested enterprises or by other means. Article 12 If a foreign investor merges or acquires a domestic enterprise and obtains the actual right to control it, and it involves major industry, has or may have the influence on the state security or caused the transference of the actual right of the domestic enterprise owning famous trademark or having a name of long history, the person concerned shall submit a report on it to the Ministry of Commerce. If a person concerned fails to submit a report, and its merger or acquisition does cause or may cause serious influence on the state economic security, the Ministry of Commerce may, together with corresponding departments, ask the person concerned to stop the deal or transfer corresponding stock ownership, assets or take other effective measures in order to eliminate the influence of the merger or acquisition on the state security. Article 13 Once a foreign investor annexes stock rights, the foreign invested enterprise established after the annexation shall inherit the creditor’s rights and debt of the merged or acquired company. As for the annexation of foreign investor’s assets, the domestic enterprise that sold the assets shall bear the original creditor’s rights and debt. The foreign investor, merged and acquired enterprise, creditor and other persons concerned may reach an agreement on the treatment of the creditor’s rights and debt of the merged and acquired domestic enterprise, but they shall not harm the third party’s interests and social public interests. The treatment agreement on the creditor’s rights and debt shall be submitted to the examination and approval organ for approval. The domestic enterprise selling its assets shall, at least 15 days before the investor submits the applications to the examination and approval organ, send the notice to the creditor and publish an announcement in a nationwide newspaper at the level of province and higher. Article 14 The parties concerned relating to an M&A shall take the value of the stock right to be transferred and the assessment result of the assets to be sold that are made by the assets evaluation institution as the basis of determining the transaction price. The parties concerned relating to an M&A may agree on an asset assessment institution lawfully established within China. The international used assessment method shall be adopted for the asset assessment. It is prohibited to divert any capital abroad in any disguised form by transferring any equities or selling assets at a price which is obviously lower than the assessment result. If a foreign investor’s M&A of a domestic enterprise causes the modification of any equity formed by the investments of state-owned assets or transference of the property right of state-owned assets, it shall satisfy the relevant provisions of the administration of state-owned assets. Article 15 The parties concerned relating to a M&A shall make clear whether or not there is a connected relationship between the parties concerned. If two parties belong to a same actual controller, the parties concerned shall disclose their actual controller to the examination and approval organ and make an explanation about whether the purpose of M&A and the assessment result accord with the sound value of the market. The parties concerned shall not evade the aforesaid requirements by trust, holding shares on behalf of others, or other means. Article 16 A foreign investor shall, to establish a foreign-invested enterprise by merging and acquiring a domestic enterprise, pay all the considerations to the shareholders who transfer the equities or to the domestic enterprise which sells the assets within 3 months from the date of issuing the business license to the foreign-invested enterprise. If it needs to extend the time limit due to any case under special circumstances, the foreign investor shall, upon the approval of the examination and approval organ, pay 60 per cent or more of the whole consideration within 6 months as of the date of issuing the business license to the foreign-invested enterprise, and pay off the consideration within one year, and distribute the earnings according to the proportion of the actually contributed investments. Where a foreign investor offers to buy the capital increase of a domestic company, the shareholders of the limited liability company and the domestic joint stock limited company established by the way of initiation shall pay no less than 20% of the newly registered capital when the company applies for a business license for foreign-invested enterprise. The time to pay the rest financial contribution shall be in line with the provisions of the Company Law, the laws relating to foreign investments and the Regulations on the Administration of Company Registration. Provided there are any other provisions stipulated by any other laws or administrative regulations, such provisions shall prevail. Where a limited-liability company issues new stocks for increasing the registered capital, the shareholders shall offer to buy new stocks in accordance with the relevant provisions relating to the share payment for establishing a limited-liability company. Where a foreign investor carries out an M&A, it shall stipulate the time limit for financial contribution in the contract and articles of the foreign-invested enterprise to be established. Where the foreign investor establishes a foreign-invested enterprise, and through the agreement of this enterprise purchases the assets of a domestic enterprise and operates such assets, it shall pay the contribution of the consideration of the asset within the time limit for the payment of consideration as stipulated in Paragraph 1 of the present Article. The remaining financial contribution shall satisfy the corresponding provisions relating to the capital contribution for establishing a foreign-invested enterprise. Where a foreign investor establishes a foreign-invested enterprise by merging and acquiring a domestic enterprise, if the proportion of its contribution is less than 25 per cent of the enterprise’s registered capital and if it provides funds in cash, it shall pay up it within 3 months from the day when a business license is issued to the foreign-invested enterprise; if it provides funds in kind or industrial property, it shall pay up it within 6 months from the day when a business license is issued to the foreign-invested enterprise. Article 17 The means of the consideration payment shall accord with the provisions of relevant laws and administrative regulations of the state. If a foreign investor uses the RMB assets it lawfully owns as a means of payment, it shall obtain the approval of the foreign exchange administrations. If a foreign investor uses the shares which are at its disposition as a means of payment, it shall handle it according to Chapter IV of these Regulations. Article 18 After a foreign investor purchases the equities of a domestic company by agreement, and the domestic company has been converted into a foreign-invested enterprise, the registered capital of this foreign-invested enterprise shall be the registered capital of the original domestic company, and the proportion of the foreign investor’s contribution shall be the proportion of its purchased equities in the original registered capital. Where a foreign investor offers to buy the capital increase of a domestic limited-liability company, the registered capital of the foreign-invested enterprise established after the M & A shall be the sum of the amount of the registered capital and the capital increase of the former domestic company. The foreign investor and other former shareholders of the merged and acquired domestic company shall, on the basis of the assets evaluation of the domestic company, determine their respective proportion of capital contributions in the foreign-invested enterprise. Where a foreign investor offers to buy the capital increase of a domestic limited-liability company, the registered capital shall be determined under the Company Law. Article 19 As for M&A of the equity by a foreign investor, the foreign-invested enterprise established after the M & A shall determine the upper limits of the total investments according to the following rates except for any other provisions stipulated by the state: (1)If the registered capital is less than US$ 2.1 million, the total investments shall not exceed 10/7 of the registered capital; (2)If the registered capital is more than US$ 2.1 million to US$ 5 million, the total investments shall not exceed two times the registered capital; (3) If the registered capital is more than US$ 5 million to US$ 12 million, the total investments shall not exceed 2.5 times the registered capital; and (4)If the registered capital is more than US$ 12 million, the total investments shall not exceed 3 times the registered capital. Article 20 For a foreign investor’s M&A of assets, the investor shall, according to the transaction price for purchasing the assets and the actual production and operation scale, determine the total investments of the foreign-invested enterprise to be established. The proportion between the registered capital and total investments of the foreign-invested enterprise to be established shall conform to the relevant provisions. Chapter III Examination, Approval and Registration Article 21 If a foreign investor merges and acquires equity, the investor shall, according to the total investments of the foreign-invested enterprise established after the M&A, the type of the enterprise and the industry it engages in, and in accordance with the provisions of laws, administrative regulations and rules relating to the establishment of foreign-invested enterprises, submit following documents to the examination and approval organ with corresponding authority: (1) A resolution of the shareholders of the merged domestic limited-liability company on unanimous agreement with the foreign investor’s merger with and acquisition of the equity or the resolution of the merged and acquired domestic limited-liability company at the shareholders’ conference on agreement with the foreign investor’s merger with and acquisition of the equity. (2) An application of the merged domestic company for converting into a foreign-invested enterprise; (3) An contract and the articles of the foreign-invested enterprise established after M&A; (4) An agreement on the foreign investor’s acquisition of the shareholders’ equities of the domestic company or the foreign investor’s purchase of the capital increase of the domestic company; (5) The financial audit report of the merged domestic company in the previous financial year; (6) The investor’s identity, registration and credit certification that have been notarized and certified according to law; (7) The descriptions about the enterprises invested by the merged domestic enterprise; (8) The (duplicates) of the business licenses of the merged domestic company and its invested enterprises; (9) The plan for the settlement of the employees of the merged domestic enterprise; (10) The documents to be submitted as required by Articles 13, 14 and 15 of these Regulations. If the business scope, scale, right of using a land of the foreign-invested enterprise established after M & A are subject to the license of other corresponding governmental departments, the relevant license shall be submitted along with the foresaid documents. Article 22 An equity purchase agreement, or capital increase agreement of the domestic company shall apply to Chinese law and contain the following contents: (1) The status of each party reaching the agreement, including the appellation (name) location, name, occupation and nationality of each legal representative; (2) The proportion of price of the purchased equities or subscribed capital increase; (3) The term and method of execution of the agreement; (4) The rights and obligations of each party reaching the agreement; (5) The liabilities for breach of contract, and settlement of disputes; and (6) The time and place for conclusion of the agreement. Article 23 For an M&A based on assets, the foreign investor shall, according to the total investments of the foreign-invested enterprise to be established, the type of the enterprise and the industry it engages in, and in accordance with the provisions of the laws, administrative regulations and rules relating to the establishment of foreign-invested enterprises, submit the following documents to the examination and approval organ with corresponding authority: (1) A resolution of the property right holders or power mechanism of the domestic enterprise on agreeing with the sale of assets; (2) An application for the establishment of a foreign-invested enterprise; (3) A contract and the articles of the foreign-invested enterprise to be established; (4) An asset purchase agreement signed by the foreign-invested enterprise to be established and the domestic enterprise, or by the foreign investor and the domestic enterprise; (5)The articles and business license (duplicate) of the merged and acquired domestic enterprise; (6) The notice of the merged and acquired domestic enterprise, certifications of the announced creditors, and statement about whether the creditors have raised any objections; (7) ) The investor’s identity, or certificate of opening a business, and relevant credit certificates that have been notarized and certified according to law; (8) The plan on the settlement of employees of the merged and acquired domestic enterprise; and (9) The documents as prescribed in Articles 13, 14 and 15 of these Regulations. If the assets purchased and operated in accordance with previous paragraph involves in the license of other corresponding governmental departments, the relevant licenses shall be submitted along with the preceding documents. Where a foreign investor purchases the assets of a domestic enterprise by agreement and invests such assets in establishing a foreign-invested enterprise, it shall not, prior to the establishment of the foreign-invested enterprise, use such assets to do any business. Article 24 The assets purchase agreement shall apply to Chinese law and contain the following main contents: (1) The status of each party reaching the agreement, including the appellation (name), and location, and the name, occupation and nationality of each legal representative; (2) The term and method for the execution of the agreement; (3) The rights and obligations of each part reaching the agreements; (4) The liabilities for breach of contract, and settlement of disputes; (6)The time and place for the conclusion of the agreement. Article 25 Where a foreign investor establish a foreign-invested enterprise by taking over a domestic enterprise, provided there are any other provisions in these Regulations, the examination and approval organ shall, within 30 days after receipt of all documents as stipulated to be submitted, make a decision of approval or disapproval. If it decides to make a decision of approval, an approval certificate shall be issued by the examination and approval organ. Where a foreign investor purchases the equities of a domestic company by agreement, and the examination and approval organ makes a decision of approval, the investor shall simultaneously send a copy of the approval documents separately to the party that transfers the equities, the foreign exchange administrations in the area where the domestic company is located. The foreign exchange administrations in the area where the party that transfers the equities is located shall handle the registration for foreign funds and foreign exchange based on equity-transfer and foreign exchange collection and issue corresponding certificates, which is an effective document proving that the consideration for equity M&A paid by the foreign investor has been in place. Article 26 Where a foreign investor merges and acquires assets, the investor shall, within 30 days after receipt of the approval certificate, apply to the registration administrations for registration and get the business license for foreign ?invested enterprises. Where a foreign investor merges and acquires equities, the merged and acquired domestic company shall, in accordance with these Regulations, apply to the original registration administration for modifying its registration and get the business license for foreign-invested enterprises. If the original registration administration has no authority for registration, it shall, within 10 days after receipt of the application documents, transfer these application documents to the registration administration with authority and simultaneously enclosed the registration files of the domestic company. When applying for registration modification, the merged and acquired domestic company shall submit the following documents and be responsible for their authenticity and effectiveness: (1) An application for registration modification; (2) An agreement on the foreign investor’s purchase of equities of the domestic company or subscription of capital increase of a domestic company ; (3) The revised regulations of the company or the amendment of the original regulations, and the contract of the foreign-invested enterprise which shall be submitted in accordance with law; (4) The approval certificate for foreign-invested enterprises; (5) The certification for the foreign investor’s subject qualification or the identity of natural person; (6) The revised name list of the members of the board of directors, the documents with the name and domicile of the new directors, and the appoint documents for the new directors; (7) Other relevant documents and certificates as stipulated by the State Administration for Industry and Commerce. The investor shall, within 30 days after receipt of the business license for foreign-invested enterprises, go through the registration formalities in the taxation, customs, land administration and foreign exchange administration authorities. Chapter IV Foreign Investors’ M&A of Domestic Companies Based on the Payment of Equities Section 1 Requirements for Equity M&A Article 27 “Foreign Investors’ M&A of Domestic Companies Based on the Payment of Equities” in terms of these Regulations means that the shareholders of an overseas company purchase the equities or increased shares of a domestic company by paying its equities or the increased shares. Article 28 “Overseas company” in terms of this Chapter shall be established lawfully and there is a perfect system of company law in its registration place, and the company and its management level have no record of punishment made by the supervision administration in recent 3 years. Except for the companies with special-purpose as mentioned in Section 3 of this Chapter, an overseas company shall be a listed company and there shall be a perfect system for dealing in securities in the place where it gets listed. Article 29 The equities of a domestic company involving in a foreign investor’s M&A of equities shall meet the following conditions: (1) Lawfully held by the shareholders and may be transferred in accordance with the law; (2) No dispute over their ownership, no hypothecation and any other restrictions on rights; (3) The equities of an overseas company shall be listed publicly in an overseas open and lawful securities exchange market (excluding the over-counter exchange market); and (4)The transaction price of the equities of the overseas company in recent one year remains stable. The Items (3) and (4) of the preceding Paragraph is inapplicable to the companies with special-purpose as mentioned in Section 3 of this Chapter. Article 30 Where a foreign investor merges and acquires a domestic company based on the equities, the domestic company or its shareholders shall engage an intermediary institution registered within China to serve as a consultant (hereinafter referred to as the “M&A consultant”). The M&A consultant shall make duteous investigations on the genuineness of the application documents for M&A, the financial status of the overseas company and whether the M&A meets the requirements of Articles 14, 28 and 29 of these Regulations, and provide a M&A consultant report and put forward clear-cut professional comments on each of the aforesaid items. Article 31 A M&A consultant shall satisfy the following requirements: (1) Having a good reputation and corresponding experiences; (2) No record of serious violation of any law or regulation; and (3) Being capable of investigating and analyzing the legal systems of the registration place of the overseas company and the place where the overseas company is get listed, and the financial status of the overseas company. Section 2 Application Documents and Procedures Article 32 An equity M&A of a domestic company by a foreign investor shall be submitted to the Ministry of Commerce for the examination and approval The domestic company shall not only submit the documents as required in Chapter III of these Regulations but also the following documents: (1) A statement of the equity changes and major assets changes of the domestic company in recent one year; (2) A M&A consultant’s report; (3) The business opening certifications or identity certification of the domestic and overseas companies involved and their shareholders; (4) Descriptions about the equities held by the shareholders of the overseas company, and the name list of the shareholders holding 5 % or more of the equities of the overseas company; (5) The Regulations of the overseas company and a description about external guaranties; and (6) The financial paper audited in the past annual year and a report on the stock dealings in the past half year of the overseas company. Article 33 The Ministry of Commerce shall, within 30 days after receipt of all submitted documents as stipulated, examine the application for M&A. If the application meet the requirements, an approval certificate shall be issued, on which the remark that “A foreign investor’s equity M&A of a domestic company” shall be given, and the business license shall be valid for 6 months as of the day when it is issued.” Article 34 A domestic company shall, within 30 days after receiving the foresaid certificate, it shall go through the formalities for changes in the registration administration and the foreign exchange administration. The registration administration and the foreign exchange administration shall respectively issue to it a business license for foreign-invested enterprises and a foreign exchange registration card with annotations that “Valid for 8 months as of the date of issuance”. When a domestic company goes through the formalities for registration modification in the registration administration, it shall, in advance, submit an application for equity conversion, amendment of the company’s regulation, agreement of equity transference and other documents signed by the legal representative of the domestic company for the purposes of resuming the equity structure. Article 35 Within 6 months as of the date of issuance of a business license, the domestic company or its shareholders shall, in regard to the matters relating to holding the equities of the overseas company, apply to the Ministry of Commerce and the foreign exchange administrations for going through the formalities of the examination, approval and registration for investing in an enterprise abroad . Besides the documents as stipulated in the Rules on the Examination and Approval of Investing in Enterprises Abroad, the parties concerned shall submit to the Ministry of Commerce the approval certificate for foreign-invested enterprises with the said annotation and a the business license for foreign-invested enterprises with the said annotation. After the examination and approval of the overseas company’s equities held by the domestic company or its shareholders, the Ministry of Commerce shall issue the approval certificate of Chinese enterprise investment overseas and replace the approval certificate of foreign-invested enterprises with no annotation by a one with annotation. After a domestic company obtains the approval certificate of foreign-invested enterprise without annotation, it shall, within 30 days, apply to the registration administration and the foreign exchange administration for replacing the business license of foreign-invested enterprise and the foreign exchange registration card without annotation by a one with annotation. Article 36 Within 6 months as of the date of issuance of a business license, if the domestic and overseas companies fail to go through the formalities of equity modification, the approval certificate with annotation and approval certificate of Chinese enterprise overseas investment shall be invalid automatically. The registration administration shall, according to the application documents for registration of equity modification submitted by the domestic company in advance, examine and approve the modification registration and resume the equity structure of the domestic company to the status before the equity M&A. If a domestic company fails to increase shares, before the registration administration examines and approves the modification registration according to the preceding Paragraph, the domestic company shall, in accordance with the provisions of the Company Law, reduce the registered capital correspondingly and make an announcement in a newspaper. If a domestic company fails to go through the corresponding registration formalities according to the preceding Paragraph, it shall be punished by the registration administration in accordance with relevant provisions of the Regulations on the Administration of Company Registration. Article 37 Before obtaining the approval certificate of foreign-invested enterprise and a foreign exchange registration certificate without annotation, it shall not distribute its profits to its shareholders, provide a guarantee to any connected company, pay the capital items such as the equity transfer, capital decrease or liquidation. Article 38 A domestic company or its shareholders shall go through the tax modification registration in the taxation administration by the approval document and business license without annotation issued by the Ministry of Commerce and the registration administration. Section 3 Special provisions for the company with special purpose Article 39 “The company with special-purpose” in terms of these Regulations refers to an overseas company directly or indirectly controlled by a domestic company or a natural person for the purpose of making the equities of its actual owned domestic company to be listed abroad. The provisions of this Section shall apply to the company with special purpose that purchases the equities of the shareholders of a domestic company or the additionally issued shares of a domestic company by paying its equities or its additionally issued shares in order to be listed abroad. If the parties concerned makes an overseas company holding the equities of a the company with special purpose as a subject to get listed abroad, this overseas company shall satisfy corresponding requirements for the company with special purpose as prescribed in this Section. Article 40 The listing transaction abroad of the company with special-purpose shall be approved by the securities regulatory administration of the State Council. The country or region where the company with special purpose shall have perfect laws and supervision system and the securities supervision administration of this country or region shall have signed a memorandum of understanding for supervision cooperation with the securities supervision administration of the State Council and keep an effective supervision cooperation. Article 41 A domestic company with its equities listed abroad as mentioned in this Section shall satisfy the following requirements: (1) Its property right is clear. No dispute or potential dispute over its property right; (2) Having a complete business system and good sustainable operation capacity; (3) Having a sound corporate governance structure and internal management system; and (4) The company and its main shareholders have no record of serious violation of any law or regulations in recent three years. Article 42 Where a domestic company set up a company with special purpose abroad, it shall apply to the Ministry of Commerce for going through the examination and approval formalities. When going through such formalities, the domestic company shall, besides the documents as required in the Rules on the Examination and Approval of Investing in Enterprises Abroad, submit the following documents simultaneously: (1) The identity of the final controller of the company with special purpose; (2) The business plan on the overseas listing of the company with special purpose; and (3) The assessment report made by the M&A consultant on the issuing price of the stock to be listed abroad in the future. After obtaining the approval document of the investment abroad for Chinese enterprise, the person who establishes or controls the company shall apply to the foreign exchange administration in the area where the company is located for going through the formalities relating to the registration of foreign exchange for overseas investments. Article 43 The total value of issuing the stocks listed abroad of the company with special purpose shall not be lower than the value of the equities M&A of the domestic company assessed by the relevant asset assessment institution. Article 44 Where a company with special purpose merges and acquires a domestic company by equities, the domestic company shall, besides the documents as required in Article 32 of these Regulations, submit to the Ministry of Commerce the following documents: (1) The approval documents and certificate for the investment in an enterprise abroad when the company with special purpose is established; (2) Registration Form of foreign exchange for the investments abroad of the company with special purpose; (3) The identity or the business opening certification or regulations of the final controller of the company with special purpose; (4) The business plan on listing abroad of the company with special purpose; and (5)The assessment report made by the M&A consultant on the issuing price of the stock to be listed abroad in the future. If the overseas company holding the equities of the company with special purpose serves as a subject to be listed abroad, the domestic company shall also submit the following documents: (1) The business opening certification and the regulations of the overseas company; and (2) The detailed descriptions by the company with special purposes and the overseas company to the equities transaction arrangement and the discount method. Article 45 If the Ministry of Commerce approves the documents as required in Article 44 of these Regulations after preliminary examination, it shall issue a letter of principle approval letter. The domestic company shall, by the principle approval letter, submit the documents for listing application to the securities supervision administration of the State Council. The securities supervision administration of the State Council shall make a decision on approval or disapproval within 20 working days. After the domestic company obtains the approval, it shall apply for the approval certificate to the Ministry of Commerce. The Ministry of Commerce shall issue to it an approval certificate with the annotation “Equities holding by the overseas company with special purpose, and valid for 1 year as of the issuance of a business license”. If the M&A causes the change of equities of company with special purpose, the domestic company or natural person holding the equities of the company with special purpose shall, by approval certificate for foreign-invested enterprises with annotation, apply to the Ministry of Commerce for going through the examination and approval formalities for the changes of the investment in an enterprise abroad on corresponding items. Article 46 The domestic company shall, within 30 days after receipt of the approval certificate with annotation, apply for the modification registration to the registration administration and the foreign exchange administration for modifying the registration. The registration administration and the foreign exchange administration shall respectively issue business license and foreign exchange registration card for foreign-invested enterprises with annotation “ Be valid for 14 months as of the date of issuance”. When the domestic company handles the modification registration in the registration administration, it shall, in advance, submit the equity change application, the amendment of the company’s regulations, the equity transfer agreement and other documents signed by the legal representative of the domestic company for the purposes of resuming the equities structure. Article 47 The domestic company shall, within 30 days after the company with special purpose or its connected overseas company realizes the overseas listing, report to the Ministry of Commerce the information about the overseas listing and its plan on the repatriation of financial income, and apply for a the replacement of an approval certificate for foreign-invested enterprises with annotation. At the same time, the domestic company shall, within 30 days after the realization of overseas listing, report to the securities supervision administration of the State Council the information about the overseas listing and provide with corresponding documents for the record. It shall also submit its plan on repatriation of financial income to the foreign exchange administration and execute this plan under the supervision of the foreign exchange administration. It shall, within 30 days after receiving the approval certificate without annotation, apply for the replacement of the business license and foreign exchange registration card to the registration administration and foreign exchange administration with annotation. If the domestic company fails to report to the Ministry of Commerce within the aforesaid time limit, the approval certificate of the domestic company with annotation shall be invalid automatically, its equities structure will resume to the state before the equity M&A, and it shall go through the formalities for modifying the registration in accordance with Article 36 of these Regulations. Article 48 The financial income from overseas listing of the company with special purpose shall, according to the repatriation plan submitted to the foreign exchange administration for the record, be repatriated according to current regulations for administration of foreign exchange. The financial income may be repatriated by following means: (1) providing commercial loans to the domestic company; (2) setting up a new foreign-invested enterprise within the territory of China; and (3) M & A of a domestic enterprise. To repatriate the financial income of a company with special purpose under the aforesaid circumstances, the person concerned shall abide by the laws and administrative regulations of China on the administration of foreign investments and foreign debts. If the repatriation of the overseas financial income of a company with special purpose causes the domestic company and natural person to hold more equities of the company with special purpose or increase the net assets of the company with special purpose, the persons concerned shall disclose the relevant information and report for approval according to the fact, and go through corresponding formalities for the registration of foreign exchange of foreign investments and registration modification of overseas investments . The foreign exchange income from profit, bonus and capital change obtained by the domestic company or natural person from the company with special purpose shall be repatriated within 6 months after the date of obtainment. The profit or bonus may enter into current account for foreign exchange or be converted into RMB. The foreign exchange income from capital change may, with the examination and approval of the foreign exchange administration, be deposited in the special capital account or be converted into RMB. Article 49 Within 1 year after the date of issuance of a business license, if the domestic company fails to obtain the approval certificate without annotation, the approval certificate with annotation shall be invalid automatically, and modification registration shall be handled in accordance with Article 36 of these Regulations. Article 50 After the company with special purpose realizes the overseas listing and the domestic company obtains the approval certificate and business license without annotation, if the person concerned continues to M&A this domestic company by paying its equities, it shall apply to the provisions of Sections 1 and 2 of this Chapter. Chapter V Anti-monopolization Examination Article 51 If a foreign investor merges and acquires a domestic company under any of the following circumstances, the investor shall report the information involved to the Ministry of Commerce and the State Administration for Industry and Commerce: (1) The business volume of any party of the M&A in Chinese market in current year o exceeds RMB 1.5 billion yuan; (2) Merging and acquiring more than 10 enterprises in the domestic connective industries within 1 year; (3) The market share of any party relating to the M&A has reached 20% in Chinese market; and (4)The M&A leads to the fact that the market share of the party to the M&A has reached 25% in China. Though failing to meet foresaid requirements, but at the request of the domestic enterprise with competition relationship, the relevant functional department or industrial association, the Ministry of Commerce or the State Administration for Industry and Commerce believes that the market share of the foreign investor M&A is huge, or there are other major factors which seriously impact the market competition, it may demand the foreign investor to provide a report. The aforesaid persons concerned include the enterprises being related to the foreign investor. Article 52 If the M&A of a domestic company by a foreign investor is under any of the circumstances as prescribed in Article 51 and if the Ministry of Commerce and the State Administration for Industry and Commerce believe that it may lead to excessive concentration, hamper fair competition or harm the consumer’s interests, they shall, within 90 days as of the date of receipt of all the submitted documents as stipulated, either jointly or solely convene through negotiation the relevant departments, institutions, enterprises and other interested parties to hold a hearing, and make a decision on approval or disapproval in accordance with the law. Article 53 If an overseas M&A is under any of the following circumstances, the parties that carry out the M&A shall, before announcing the M&A plan or when submitting it to the competent authority in the country where it is located, submit the M&A plan to the Ministry of Commerce and the State Administration for Industry and Commerce. The Ministry of Commerce and the State Administration for Industry and Commerce shall examine whether it will lead to excessive centralization in the domestic market, hinder domestic fair competition, or harm domestic consumers’ benefits, and then make a decision on approval or disapproval: (1) The overseas party of the M&A owns assets of more than RMB 3 billion Yuan in the territory of China; (2) The business volume of the overseas party of the M&A in the Chinese market is more than RMB 1.5 billion yuan in the current year; (3) The market share of the overseas party of the M&A and its connected enterprises in Chinese Market has reached 20%; (4) Due to overseas M&A, the market share of the overseas party of the M&A and its connected enterprises in China has reached 25%; or (5) Due to overseas M&A, there will be more than 15 foreign-invested enterprises participating directly or indirectly in equities of corresponding domestic industries. Article 54 Where a M&A is under any of the following circumstances, any party of the M&A may apply for examination exemption to the Ministry of Commerce and the State Administration for Industry and Commerce: (1) May improve the conditions for market fair competition; (2) Re-organizing losing enterprises and ensure outplacement; (3) Introduce advanced technology and qualified management personnel and be able to improve the enterprise’s international competitiveness; or (4) May improve the environment. Chapter VI Supplementary Provisions Article 55 These Regulations is applicable to the case that an investment company established by a foreign investor within China merges and acquires a domestic enterprise. Where a foreign investor purchases the equities of the shareholder of a foreign-invested enterprise in China or offer to buy the capital increase of a foreign-invested enterprise in China, it shall be applicable to current laws, administrative regulations on foreign-invested enterprises as well as corresponding provisions on equities changes of the investors of foreign-invested enterprise. If any case is not covered by the aforesaid laws, administrative regulations or provisions, it shall be handled according to these Regulations. Where a foreign investor merges or acquires a domestic enterprise through a foreign-invested enterprise established by it within China, it shall apply to corresponding provisions on the combination and split-up of foreign-invested enterprises and corresponding provisions on domestic investment of foreign-invested enterprise. If any case is not covered by the aforesaid provisions, it shall be handled according to these Regulations. Where a foreign investor merges and acquires a domestic limited liability company and transforms it into a joint stock limited company, or if the domestic company is a joint stock limited company, it shall be applicable to the corresponding provisions on the establishment of a joint stock limited company; if any case is not covered by the aforesaid provisions, it shall be applicable to these Regulations. Article 56 An applicant or declarer shall submit the documents after classifying the documents into different categories and the catalogue is enclosed in accordance with these Regulations.. All documents required to be submitted shall be written in Chinese. Article 57 A Chinese natural-person shareholder of a domestic company taken over by equities may, after obtaining the approval, continue to be a Chinese investor of the foreign-invested enterprise established after modification. Article 58 If a natural-person shareholder of a domestic company changes his nationality, the enterprise nature of the company shall not be changed. Article 59 The staffs of corresponding governmental authorities shall be devoted to their duties, perform their duties in accordance with the law, and shall not seek any improper benefit by taking the advantage of their positions, and shall keep confidential the commercial secrets they have known. Article 60 Where an investor from Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan Region mergers and acquires a enterprise of any other region in China, it shall be handled according to these Regulations. Article 61 These Regulations shall come into force as of September 8, 2006.
Regulations for Merger with and Acquisition of Domestic Enterprises by Foreign Investors Tuesday,October 17,2006 Posted: 10:46 BJT(0246 GMT) CAITEC Catalogue Chapter I General Principles Chapter II Basic Rules Chapter III Examination, Approval and Registration Chapter IV Foreign Investors’ Merger with and Acquisition of Domestic Companies Based on the Payment of Equities Section 1 Conditions for Equity M&A Section 2 Application documents and procedures Section 3 Special provisions for the company with special purpose Chapter V Anti-monopolization Examination Chapter VI Supplementary Provisions Chapter I General Principles Article 1 These Provisions are formulated in accordance with the laws and administrative regulations concerning foreign-invested enterprises, Company Law and other relevant laws and administrative regulations in order to promote and standardize foreign investors’ investment in China, introduce foreign advanced technology and management experience, enhance the level of utilizing foreign investment, realize reasonable allocation of resources, ensure employment, safeguard fair competition and national economic security. Article 2 “Merger with and acquisition of domestic enterprises by foreign investors” in terms of these Regulations means a foreign investor purchases the stock right of a shareholder of a non-foreign-invested enterprise in China (domestic company）or capital increase of a domestic company so as to convert and re-establish a domestic company as a foreign-invested enterprise (equity merger and acquisition); or, a foreign investor establishes a foreign-invested enterprise and purchases and operates the assets of a domestic enterprise by the agreement of that enterprise, or, a foreign investor purchases the assets of a domestic enterprise by agreement and uses this asset investment to establish a foreign-invested enterprise and operate the assets （Asset Merger and Acquisition）. Article 3 Foreign investors’ merger with and acquisition of domestic enterprises shall comply with the laws, administrative regulations and 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 social economic order or harm social public interests. Article 4 Foreign investors’ merger with and acquisition of domestic enterprises shall comply with the requirements stipulated by laws, administrative regulations and rules of China, and policies concerning industry, land and environment. According to the Guiding Catalogue of Foreign Invested Industry, to an industry that is not allowed to be operated by a sole foreign investor, its merger and acquisition shall not result in foreign investor holding the enterprise’s entire equity. To an industry that needs Chinese party to have the holdings or have relative holdings, and the Chinese party shall maintain its holdings or relative holdings in the enterprise after the enterprise in that industry is merged and acquired. To an industry that is forbidden to be operated by a sole foreign investor, the foreign investor shall not merge with or acquire any enterprise in that industry. The business range of the original invested enterprise of the merged or acquired domestic enterprise shall accord with the requirements of the policy concerning foreign-invested industry. Whichever does not meet the requirements shall be readjusted. Article 5 A foreign investor’s merger with or acquisition of domestic enterprises involving the transference of state owned equity and management of state owned equity of listed companies shall abide by corresponding regulations concerning the management of state owned assets. Article 6 A foreign investor establishes a foreign-invested enterprise by merging or acquiring a domestic enterprise shall be approved by the examination and approval organ in accordance with the provisions of these Regulations and register for changes or establish a registration to the registration management authority, Article 7 The persons concerned of all parties concerning foreign investor’s merger with and acquisition of domestic enterprises shall pay tax and accept the supervision of taxation authority in accordance with Taxation Law of China. Article 8 The persons concerned of all parties concerning foreign investor’s merger with and acquisition of domestic enterprises shall abide by the laws and administrative regulations of China concerning the administration of foreign exchange, go through the formalities of foreign exchange examination and approval, registration, record and changes in time to foreign exchange authority. Chapter II Basic Rules Article 9 If the ratio of financial contribution of a foreign investor in the registered capital of the foreign-invested enterprise established after the merger and acquisition (M&A) is more than 25 percent, this enterprise shall enjoy the treatment of a foreign-invested enterprise. If the ratio of financial contribution of the foreign investor in the registered capital of the foreign-invested enterprise established after merger and acquisition is less than 25%, this enterprise shall not enjoy the treatment of a foreign-invested enterprise except for separate provisions stipulated by laws and administrative regulations. Its Borrowing external debts shall be handled according to relevant provisions relating to domestic non-foreign-invested enterprises’ borrowing external debts. The examination and approval organ shall issue to it the Approval Certificate of Foreign-invested Enterprises with annotations “ratio of foreign investment less than 25%” (Approval Certificate). The registration administration authority and foreign exchange administration authority shall issue separately to it the Business License for foreign-invested enterprises with annotations “ratio of foreign investment less than 25%” and Foreign Exchange Registration Card. If domestic companies, enterprises or natural persons merge or acquire the domestic companies that have something to do with them in the name of the companies legally established or controlled by them in foreign countries, the established foreign-invested enterprises shall not enjoy the treatment of foreign-invested enterprises except that if the company in foreign countries offers to buy the capital increase of domestic companies, or increase capital to the enterprises established by this company in foreign country after merger, the sum of capital increase takes more than 25 per cent of the enterprise’s registered capital. To the foreign-invested enterprise established according to the way as prescribed in this section, except for the actual controller, the foreign investor provide funds more than 25 per cent of the enterprise’s registered capital, it may enjoy the treatment of foreign-invested enterprises. The treatment for the Foreign-invested enterprises established after foreign investor’s merger with or acquisition of the domestic listed companies shall be handled in accordance with relevant regulations of the state. Article 10 In terms of these Regulations, the examination and approval organ is the Ministry of Commerce of the People’s Republic of China or provincial commercial authority, the registration authority is State Administration for Industry and Commerce or its authorized local administration for industry and commerce, foreign exchange administrative authority is State Administration of Foreign Exchange and its branches. If the foreign-invested enterprises established after merger and acquisition are, according to the provisions of laws, administrative regulations and rules, the foreign-invested enterprises of special type or industry that shall be approved by the Ministry of Commerce, provincial examination and approval organ shall submit the applications to the Ministry of Commerce for approval, the Ministry of Commerce will make the decision whether or not to approve it. Article 11 The domestic companies. Enterprises or natural persons shall, when they merge or acquire domestic companies having something to do with them in the name of the companies in foreign countries legally established or controlled by them, be submitted to the Ministry of Commerce for approval. The person concerned shall not evade above requirements by domestic investment of the foreign-invested enterprises or by other means. Article 12 If a foreign investor merges or acquires a domestic enterprise and obtains the actual right to control it, and it involves major industry, has or may have the influence on the state security or caused the transference of the actual right of the domestic enterprise owning famous trademark or having a name of long history, the person concerned shall submit a report on it to the Ministry of Commerce. If a person concerned fails to submit a report, and its merger or acquisition does cause or may cause serious influence on the state economic security, the Ministry of Commerce may, together with corresponding departments, ask the person concerned to stop the deal or transfer corresponding stock ownership, assets or take other effective measures in order to eliminate the influence of the merger or acquisition on the state security. Article 13 Once a foreign investor annexes stock rights, the foreign invested enterprise established after the annexation shall inherit the creditor’s rights and debt of the merged or acquired company. As for the annexation of foreign investor’s assets, the domestic enterprise that sold the assets shall bear the original creditor’s rights and debt. The foreign investor, merged and acquired enterprise, creditor and other persons concerned may reach an agreement on the treatment of the creditor’s rights and debt of the merged and acquired domestic enterprise, but they shall not harm the third party’s interests and social public interests. The treatment agreement on the creditor’s rights and debt shall be submitted to the examination and approval organ for approval. The domestic enterprise selling its assets shall, at least 15 days before the investor submits the applications to the examination and approval organ, send the notice to the creditor and publish an announcement in a nationwide newspaper at the level of province and higher. Article 14 The parties concerned relating to an M&A shall take the value of the stock right to be transferred and the assessment result of the assets to be sold that are made by the assets evaluation institution as the basis of determining the transaction price. The parties concerned relating to an M&A may agree on an asset assessment institution lawfully established within China. The international used assessment method shall be adopted for the asset assessment. It is prohibited to divert any capital abroad in any disguised form by transferring any equities or selling assets at a price which is obviously lower than the assessment result. If a foreign investor’s M&A of a domestic enterprise causes the modification of any equity formed by the investments of state-owned assets or transference of the property right of state-owned assets, it shall satisfy the relevant provisions of the administration of state-owned assets. Article 15 The parties concerned relating to a M&A shall make clear whether or not there is a connected relationship between the parties concerned. If two parties belong to a same actual controller, the parties concerned shall disclose their actual controller to the examination and approval organ and make an explanation about whether the purpose of M&A and the assessment result accord with the sound value of the market. The parties concerned shall not evade the aforesaid requirements by trust, holding shares on behalf of others, or other means. Article 16 A foreign investor shall, to establish a foreign-invested enterprise by merging and acquiring a domestic enterprise, pay all the considerations to the shareholders who transfer the equities or to the domestic enterprise which sells the assets within 3 months from the date of issuing the business license to the foreign-invested enterprise. If it needs to extend the time limit due to any case under special circumstances, the foreign investor shall, upon the approval of the examination and approval organ, pay 60 per cent or more of the whole consideration within 6 months as of the date of issuing the business license to the foreign-invested enterprise, and pay off the consideration within one year, and distribute the earnings according to the proportion of the actually contributed investments. Where a foreign investor offers to buy the capital increase of a domestic company, the shareholders of the limited liability company and the domestic joint stock limited company established by the way of initiation shall pay no less than 20% of the newly registered capital when the company applies for a business license for foreign-invested enterprise. The time to pay the rest financial contribution shall be in line with the provisions of the Company Law, the laws relating to foreign investments and the Regulations on the Administration of Company Registration. Provided there are any other provisions stipulated by any other laws or administrative regulations, such provisions shall prevail. Where a limited-liability company issues new stocks for increasing the registered capital, the shareholders shall offer to buy new stocks in accordance with the relevant provisions relating to the share payment for establishing a limited-liability company. Where a foreign investor carries out an M&A, it shall stipulate the time limit for financial contribution in the contract and articles of the foreign-invested enterprise to be established. Where the foreign investor establishes a foreign-invested enterprise, and through the agreement of this enterprise purchases the assets of a domestic enterprise and operates such assets, it shall pay the contribution of the consideration of the asset within the time limit for the payment of consideration as stipulated in Paragraph 1 of the present Article. The remaining financial contribution shall satisfy the corresponding provisions relating to the capital contribution for establishing a foreign-invested enterprise. Where a foreign investor establishes a foreign-invested enterprise by merging and acquiring a domestic enterprise, if the proportion of its contribution is less than 25 per cent of the enterprise’s registered capital and if it provides funds in cash, it shall pay up it within 3 months from the day when a business license is issued to the foreign-invested enterprise; if it provides funds in kind or industrial property, it shall pay up it within 6 months from the day when a business license is issued to the foreign-invested enterprise. Article 17 The means of the consideration payment shall accord with the provisions of relevant laws and administrative regulations of the state. If a foreign investor uses the RMB assets it lawfully owns as a means of payment, it shall obtain the approval of the foreign exchange administrations. If a foreign investor uses the shares which are at its disposition as a means of payment, it shall handle it according to Chapter IV of these Regulations. Article 18 After a foreign investor purchases the equities of a domestic company by agreement, and the domestic company has been converted into a foreign-invested enterprise, the registered capital of this foreign-invested enterprise shall be the registered capital of the original domestic company, and the proportion of the foreign investor’s contribution shall be the proportion of its purchased equities in the original registered capital. Where a foreign investor offers to buy the capital increase of a domestic limited-liability company, the registered capital of the foreign-invested enterprise established after the M & A shall be the sum of the amount of the registered capital and the capital increase of the former domestic company. The foreign investor and other former shareholders of the merged and acquired domestic company shall, on the basis of the assets evaluation of the domestic company, determine their respective proportion of capital contributions in the foreign-invested enterprise. Where a foreign investor offers to buy the capital increase of a domestic limited-liability company, the registered capital shall be determined under the Company Law. Article 19 As for M&A of the equity by a foreign investor, the foreign-invested enterprise established after the M & A shall determine the upper limits of the total investments according to the following rates except for any other provisions stipulated by the state: (1)If the registered capital is less than US$ 2.1 million, the total investments shall not exceed 10/7 of the registered capital; (2)If the registered capital is more than US$ 2.1 million to US$ 5 million, the total investments shall not exceed two times the registered capital; (3) If the registered capital is more than US$ 5 million to US$ 12 million, the total investments shall not exceed 2.5 times the registered capital; and (4)If the registered capital is more than US$ 12 million, the total investments shall not exceed 3 times the registered capital. Article 20 For a foreign investor’s M&A of assets, the investor shall, according to the transaction price for purchasing the assets and the actual production and operation scale, determine the total investments of the foreign-invested enterprise to be established. The proportion between the registered capital and total investments of the foreign-invested enterprise to be established shall conform to the relevant provisions. Chapter III Examination, Approval and Registration Article 21 If a foreign investor merges and acquires equity, the investor shall, according to the total investments of the foreign-invested enterprise established after the M&A, the type of the enterprise and the industry it engages in, and in accordance with the provisions of laws, administrative regulations and rules relating to the establishment of foreign-invested enterprises, submit following documents to the examination and approval organ with corresponding authority: (1) A resolution of the shareholders of the merged domestic limited-liability company on unanimous agreement with the foreign investor’s merger with and acquisition of the equity or the resolution of the merged and acquired domestic limited-liability company at the shareholders’ conference on agreement with the foreign investor’s merger with and acquisition of the equity. (2) An application of the merged domestic company for converting into a foreign-invested enterprise; (3) An contract and the articles of the foreign-invested enterprise established after M&A; (4) An agreement on the foreign investor’s acquisition of the shareholders’ equities of the domestic company or the foreign investor’s purchase of the capital increase of the domestic company; (5) The financial audit report of the merged domestic company in the previous financial year; (6) The investor’s identity, registration and credit certification that have been notarized and certified according to law; (7) The descriptions about the enterprises invested by the merged domestic enterprise; (8) The (duplicates) of the business licenses of the merged domestic company and its invested enterprises; (9) The plan for the settlement of the employees of the merged domestic enterprise; (10) The documents to be submitted as required by Articles 13, 14 and 15 of these Regulations. If the business scope, scale, right of using a land of the foreign-invested enterprise established after M & A are subject to the license of other corresponding governmental departments, the relevant license shall be submitted along with the foresaid documents. Article 22 An equity purchase agreement, or capital increase agreement of the domestic company shall apply to Chinese law and contain the following contents: (1) The status of each party reaching the agreement, including the appellation (name) location, name, occupation and nationality of each legal representative; (2) The proportion of price of the purchased equities or subscribed capital increase; (3) The term and method of execution of the agreement; (4) The rights and obligations of each party reaching the agreement; (5) The liabilities for breach of contract, and settlement of disputes; and (6) The time and place for conclusion of the agreement. Article 23 For an M&A based on assets, the foreign investor shall, according to the total investments of the foreign-invested enterprise to be established, the type of the enterprise and the industry it engages in, and in accordance with the provisions of the laws, administrative regulations and rules relating to the establishment of foreign-invested enterprises, submit the following documents to the examination and approval organ with corresponding authority: (1) A resolution of the property right holders or power mechanism of the domestic enterprise on agreeing with the sale of assets; (2) An application for the establishment of a foreign-invested enterprise; (3) A contract and the articles of the foreign-invested enterprise to be established; (4) An asset purchase agreement signed by the foreign-invested enterprise to be established and the domestic enterprise, or by the foreign investor and the domestic enterprise; (5)The articles and business license (duplicate) of the merged and acquired domestic enterprise; (6) The notice of the merged and acquired domestic enterprise, certifications of the announced creditors, and statement about whether the creditors have raised any objections; (7) ) The investor’s identity, or certificate of opening a business, and relevant credit certificates that have been notarized and certified according to law; (8) The plan on the settlement of employees of the merged and acquired domestic enterprise; and (9) The documents as prescribed in Articles 13, 14 and 15 of these Regulations. If the assets purchased and operated in accordance with previous paragraph involves in the license of other corresponding governmental departments, the relevant licenses shall be submitted along with the preceding documents. Where a foreign investor purchases the assets of a domestic enterprise by agreement and invests such assets in establishing a foreign-invested enterprise, it shall not, prior to the establishment of the foreign-invested enterprise, use such assets to do any business. Article 24 The assets purchase agreement shall apply to Chinese law and contain the following main contents: (1) The status of each party reaching the agreement, including the appellation (name), and location, and the name, occupation and nationality of each legal representative; (2) The term and method for the execution of the agreement; (3) The rights and obligations of each part reaching the agreements; (4) The liabilities for breach of contract, and settlement of disputes; (6)The time and place for the conclusion of the agreement. Article 25 Where a foreign investor establish a foreign-invested enterprise by taking over a domestic enterprise, provided there are any other provisions in these Regulations, the examination and approval organ shall, within 30 days after receipt of all documents as stipulated to be submitted, make a decision of approval or disapproval. If it decides to make a decision of approval, an approval certificate shall be issued by the examination and approval organ. Where a foreign investor purchases the equities of a domestic company by agreement, and the examination and approval organ makes a decision of approval, the investor shall simultaneously send a copy of the approval documents separately to the party that transfers the equities, the foreign exchange administrations in the area where the domestic company is located. The foreign exchange administrations in the area where the party that transfers the equities is located shall handle the registration for foreign funds and foreign exchange based on equity-transfer and foreign exchange collection and issue corresponding certificates, which is an effective document proving that the consideration for equity M&A paid by the foreign investor has been in place. Article 26 Where a foreign investor merges and acquires assets, the investor shall, within 30 days after receipt of the approval certificate, apply to the registration administrations for registration and get the business license for foreign ?invested enterprises. Where a foreign investor merges and acquires equities, the merged and acquired domestic company shall, in accordance with these Regulations, apply to the original registration administration for modifying its registration and get the business license for foreign-invested enterprises. If the original registration administration has no authority for registration, it shall, within 10 days after receipt of the application documents, transfer these application documents to the registration administration with authority and simultaneously enclosed the registration files of the domestic company. When applying for registration modification, the merged and acquired domestic company shall submit the following documents and be responsible for their authenticity and effectiveness: (1) An application for registration modification; (2) An agreement on the foreign investor’s purchase of equities of the domestic company or subscription of capital increase of a domestic company ; (3) The revised regulations of the company or the amendment of the original regulations, and the contract of the foreign-invested enterprise which shall be submitted in accordance with law; (4) The approval certificate for foreign-invested enterprises; (5) The certification for the foreign investor’s subject qualification or the identity of natural person; (6) The revised name list of the members of the board of directors, the documents with the name and domicile of the new directors, and the appoint documents for the new directors; (7) Other relevant documents and certificates as stipulated by the State Administration for Industry and Commerce. The investor shall, within 30 days after receipt of the business license for foreign-invested enterprises, go through the registration formalities in the taxation, customs, land administration and foreign exchange administration authorities. Chapter IV Foreign Investors’ M&A of Domestic Companies Based on the Payment of Equities Section 1 Requirements for Equity M&A Article 27 “Foreign Investors’ M&A of Domestic Companies Based on the Payment of Equities” in terms of these Regulations means that the shareholders of an overseas company purchase the equities or increased shares of a domestic company by paying its equities or the increased shares. Article 28 “Overseas company” in terms of this Chapter shall be established lawfully and there is a perfect system of company law in its registration place, and the company and its management level have no record of punishment made by the supervision administration in recent 3 years. Except for the companies with special-purpose as mentioned in Section 3 of this Chapter, an overseas company shall be a listed company and there shall be a perfect system for dealing in securities in the place where it gets listed. Article 29 The equities of a domestic company involving in a foreign investor’s M&A of equities shall meet the following conditions: (1) Lawfully held by the shareholders and may be transferred in accordance with the law; (2) No dispute over their ownership, no hypothecation and any other restrictions on rights; (3) The equities of an overseas company shall be listed publicly in an overseas open and lawful securities exchange market (excluding the over-counter exchange market); and (4)The transaction price of the equities of the overseas company in recent one year remains stable. The Items (3) and (4) of the preceding Paragraph is inapplicable to the companies with special-purpose as mentioned in Section 3 of this Chapter. Article 30 Where a foreign investor merges and acquires a domestic company based on the equities, the domestic company or its shareholders shall engage an intermediary institution registered within China to serve as a consultant (hereinafter referred to as the “M&A consultant”). The M&A consultant shall make duteous investigations on the genuineness of the application documents for M&A, the financial status of the overseas company and whether the M&A meets the requirements of Articles 14, 28 and 29 of these Regulations, and provide a M&A consultant report and put forward clear-cut professional comments on each of the aforesaid items. Article 31 A M&A consultant shall satisfy the following requirements: (1) Having a good reputation and corresponding experiences; (2) No record of serious violation of any law or regulation; and (3) Being capable of investigating and analyzing the legal systems of the registration place of the overseas company and the place where the overseas company is get listed, and the financial status of the overseas company. Section 2 Application Documents and Procedures Article 32 An equity M&A of a domestic company by a foreign investor shall be submitted to the Ministry of Commerce for the examination and approval The domestic company shall not only submit the documents as required in Chapter III of these Regulations but also the following documents: (1) A statement of the equity changes and major assets changes of the domestic company in recent one year; (2) A M&A consultant’s report; (3) The business opening certifications or identity certification of the domestic and overseas companies involved and their shareholders; (4) Descriptions about the equities held by the shareholders of the overseas company, and the name list of the shareholders holding 5 % or more of the equities of the overseas company; (5) The Regulations of the overseas company and a description about external guaranties; and (6) The financial paper audited in the past annual year and a report on the stock dealings in the past half year of the overseas company. Article 33 The Ministry of Commerce shall, within 30 days after receipt of all submitted documents as stipulated, examine the application for M&A. If the application meet the requirements, an approval certificate shall be issued, on which the remark that “A foreign investor’s equity M&A of a domestic company” shall be given, and the business license shall be valid for 6 months as of the day when it is issued.” Article 34 A domestic company shall, within 30 days after receiving the foresaid certificate, it shall go through the formalities for changes in the registration administration and the foreign exchange administration. The registration administration and the foreign exchange administration shall respectively issue to it a business license for foreign-invested enterprises and a foreign exchange registration card with annotations that “Valid for 8 months as of the date of issuance”. When a domestic company goes through the formalities for registration modification in the registration administration, it shall, in advance, submit an application for equity conversion, amendment of the company’s regulation, agreement of equity transference and other documents signed by the legal representative of the domestic company for the purposes of resuming the equity structure. Article 35 Within 6 months as of the date of issuance of a business license, the domestic company or its shareholders shall, in regard to the matters relating to holding the equities of the overseas company, apply to the Ministry of Commerce and the foreign exchange administrations for going through the formalities of the examination, approval and registration for investing in an enterprise abroad . Besides the documents as stipulated in the Rules on the Examination and Approval of Investing in Enterprises Abroad, the parties concerned shall submit to the Ministry of Commerce the approval certificate for foreign-invested enterprises with the said annotation and a the business license for foreign-invested enterprises with the said annotation. After the examination and approval of the overseas company’s equities held by the domestic company or its shareholders, the Ministry of Commerce shall issue the approval certificate of Chinese enterprise investment overseas and replace the approval certificate of foreign-invested enterprises with no annotation by a one with annotation. After a domestic company obtains the approval certificate of foreign-invested enterprise without annotation, it shall, within 30 days, apply to the registration administration and the foreign exchange administration for replacing the business license of foreign-invested enterprise and the foreign exchange registration card without annotation by a one with annotation. Article 36 Within 6 months as of the date of issuance of a business license, if the domestic and overseas companies fail to go through the formalities of equity modification, the approval certificate with annotation and approval certificate of Chinese enterprise overseas investment shall be invalid automatically. The registration administration shall, according to the application documents for registration of equity modification submitted by the domestic company in advance, examine and approve the modification registration and resume the equity structure of the domestic company to the status before the equity M&A. If a domestic company fails to increase shares, before the registration administration examines and approves the modification registration according to the preceding Paragraph, the domestic company shall, in accordance with the provisions of the Company Law, reduce the registered capital correspondingly and make an announcement in a newspaper. If a domestic company fails to go through the corresponding registration formalities according to the preceding Paragraph, it shall be punished by the registration administration in accordance with relevant provisions of the Regulations on the Administration of Company Registration. Article 37 Before obtaining the approval certificate of foreign-invested enterprise and a foreign exchange registration certificate without annotation, it shall not distribute its profits to its shareholders, provide a guarantee to any connected company, pay the capital items such as the equity transfer, capital decrease or liquidation. Article 38 A domestic company or its shareholders shall go through the tax modification registration in the taxation administration by the approval document and business license without annotation issued by the Ministry of Commerce and the registration administration. Section 3 Special provisions for the company with special purpose Article 39 “The company with special-purpose” in terms of these Regulations refers to an overseas company directly or indirectly controlled by a domestic company or a natural person for the purpose of making the equities of its actual owned domestic company to be listed abroad. The provisions of this Section shall apply to the company with special purpose that purchases the equities of the shareholders of a domestic company or the additionally issued shares of a domestic company by paying its equities or its additionally issued shares in order to be listed abroad. If the parties concerned makes an overseas company holding the equities of a the company with special purpose as a subject to get listed abroad, this overseas company shall satisfy corresponding requirements for the company with special purpose as prescribed in this Section. Article 40 The listing transaction abroad of the company with special-purpose shall be approved by the securities regulatory administration of the State Council. The country or region where the company with special purpose shall have perfect laws and supervision system and the securities supervision administration of this country or region shall have signed a memorandum of understanding for supervision cooperation with the securities supervision administration of the State Council and keep an effective supervision cooperation. Article 41 A domestic company with its equities listed abroad as mentioned in this Section shall satisfy the following requirements: (1) Its property right is clear. No dispute or potential dispute over its property right; (2) Having a complete business system and good sustainable operation capacity; (3) Having a sound corporate governance structure and internal management system; and (4) The company and its main shareholders have no record of serious violation of any law or regulations in recent three years. Article 42 Where a domestic company set up a company with special purpose abroad, it shall apply to the Ministry of Commerce for going through the examination and approval formalities. When going through such formalities, the domestic company shall, besides the documents as required in the Rules on the Examination and Approval of Investing in Enterprises Abroad, submit the following documents simultaneously: (1) The identity of the final controller of the company with special purpose; (2) The business plan on the overseas listing of the company with special purpose; and (3) The assessment report made by the M&A consultant on the issuing price of the stock to be listed abroad in the future. After obtaining the approval document of the investment abroad for Chinese enterprise, the person who establishes or controls the company shall apply to the foreign exchange administration in the area where the company is located for going through the formalities relating to the registration of foreign exchange for overseas investments. Article 43 The total value of issuing the stocks listed abroad of the company with special purpose shall not be lower than the value of the equities M&A of the domestic company assessed by the relevant asset assessment institution. Article 44 Where a company with special purpose merges and acquires a domestic company by equities, the domestic company shall, besides the documents as required in Article 32 of these Regulations, submit to the Ministry of Commerce the following documents: (1) The approval documents and certificate for the investment in an enterprise abroad when the company with special purpose is established; (2) Registration Form of foreign exchange for the investments abroad of the company with special purpose; (3) The identity or the business opening certification or regulations of the final controller of the company with special purpose; (4) The business plan on listing abroad of the company with special purpose; and (5)The assessment report made by the M&A consultant on the issuing price of the stock to be listed abroad in the future. If the overseas company holding the equities of the company with special purpose serves as a subject to be listed abroad, the domestic company shall also submit the following documents: (1) The business opening certification and the regulations of the overseas company; and (2) The detailed descriptions by the company with special purposes and the overseas company to the equities transaction arrangement and the discount method. Article 45 If the Ministry of Commerce approves the documents as required in Article 44 of these Regulations after preliminary examination, it shall issue a letter of principle approval letter. The domestic company shall, by the principle approval letter, submit the documents for listing application to the securities supervision administration of the State Council. The securities supervision administration of the State Council shall make a decision on approval or disapproval within 20 working days. After the domestic company obtains the approval, it shall apply for the approval certificate to the Ministry of Commerce. The Ministry of Commerce shall issue to it an approval certificate with the annotation “Equities holding by the overseas company with special purpose, and valid for 1 year as of the issuance of a business license”. If the M&A causes the change of equities of company with special purpose, the domestic company or natural person holding the equities of the company with special purpose shall, by approval certificate for foreign-invested enterprises with annotation, apply to the Ministry of Commerce for going through the examination and approval formalities for the changes of the investment in an enterprise abroad on corresponding items. Article 46 The domestic company shall, within 30 days after receipt of the approval certificate with annotation, apply for the modification registration to the registration administration and the foreign exchange administration for modifying the registration. The registration administration and the foreign exchange administration shall respectively issue business license and foreign exchange registration card for foreign-invested enterprises with annotation “ Be valid for 14 months as of the date of issuance”. When the domestic company handles the modification registration in the registration administration, it shall, in advance, submit the equity change application, the amendment of the company’s regulations, the equity transfer agreement and other documents signed by the legal representative of the domestic company for the purposes of resuming the equities structure. Article 47 The domestic company shall, within 30 days after the company with special purpose or its connected overseas company realizes the overseas listing, report to the Ministry of Commerce the information about the overseas listing and its plan on the repatriation of financial income, and apply for a the replacement of an approval certificate for foreign-invested enterprises with annotation. At the same time, the domestic company shall, within 30 days after the realization of overseas listing, report to the securities supervision administration of the State Council the information about the overseas listing and provide with corresponding documents for the record. It shall also submit its plan on repatriation of financial income to the foreign exchange administration and execute this plan under the supervision of the foreign exchange administration. It shall, within 30 days after receiving the approval certificate without annotation, apply for the replacement of the business license and foreign exchange registration card to the registration administration and foreign exchange administration with annotation. If the domestic company fails to report to the Ministry of Commerce within the aforesaid time limit, the approval certificate of the domestic company with annotation shall be invalid automatically, its equities structure will resume to the state before the equity M&A, and it shall go through the formalities for modifying the registration in accordance with Article 36 of these Regulations. Article 48 The financial income from overseas listing of the company with special purpose shall, according to the repatriation plan submitted to the foreign exchange administration for the record, be repatriated according to current regulations for administration of foreign exchange. The financial income may be repatriated by following means: (1) providing commercial loans to the domestic company; (2) setting up a new foreign-invested enterprise within the territory of China; and (3) M & A of a domestic enterprise. To repatriate the financial income of a company with special purpose under the aforesaid circumstances, the person concerned shall abide by the laws and administrative regulations of China on the administration of foreign investments and foreign debts. If the repatriation of the overseas financial income of a company with special purpose causes the domestic company and natural person to hold more equities of the company with special purpose or increase the net assets of the company with special purpose, the persons concerned shall disclose the relevant information and report for approval according to the fact, and go through corresponding formalities for the registration of foreign exchange of foreign investments and registration modification of overseas investments . The foreign exchange income from profit, bonus and capital change obtained by the domestic company or natural person from the company with special purpose shall be repatriated within 6 months after the date of obtainment. The profit or bonus may enter into current account for foreign exchange or be converted into RMB. The foreign exchange income from capital change may, with the examination and approval of the foreign exchange administration, be deposited in the special capital account or be converted into RMB. Article 49 Within 1 year after the date of issuance of a business license, if the domestic company fails to obtain the approval certificate without annotation, the approval certificate with annotation shall be invalid automatically, and modification registration shall be handled in accordance with Article 36 of these Regulations. Article 50 After the company with special purpose realizes the overseas listing and the domestic company obtains the approval certificate and business license without annotation, if the person concerned continues to M&A this domestic company by paying its equities, it shall apply to the provisions of Sections 1 and 2 of this Chapter. Chapter V Anti-monopolization Examination Article 51 If a foreign investor merges and acquires a domestic company under any of the following circumstances, the investor shall report the information involved to the Ministry of Commerce and the State Administration for Industry and Commerce: (1) The business volume of any party of the M&A in Chinese market in current year o exceeds RMB 1.5 billion yuan; (2) Merging and acquiring more than 10 enterprises in the domestic connective industries within 1 year; (3) The market share of any party relating to the M&A has reached 20% in Chinese market; and (4)The M&A leads to the fact that the market share of the party to the M&A has reached 25% in China. Though failing to meet foresaid requirements, but at the request of the domestic enterprise with competition relationship, the relevant functional department or industrial association, the Ministry of Commerce or the State Administration for Industry and Commerce believes that the market share of the foreign investor M&A is huge, or there are other major factors which seriously impact the market competition, it may demand the foreign investor to provide a report. The aforesaid persons concerned include the enterprises being related to the foreign investor. Article 52 If the M&A of a domestic company by a foreign investor is under any of the circumstances as prescribed in Article 51 and if the Ministry of Commerce and the State Administration for Industry and Commerce believe that it may lead to excessive concentration, hamper fair competition or harm the consumer’s interests, they shall, within 90 days as of the date of receipt of all the submitted documents as stipulated, either jointly or solely convene through negotiation the relevant departments, institutions, enterprises and other interested parties to hold a hearing, and make a decision on approval or disapproval in accordance with the law. Article 53 If an overseas M&A is under any of the following circumstances, the parties that carry out the M&A shall, before announcing the M&A plan or when submitting it to the competent authority in the country where it is located, submit the M&A plan to the Ministry of Commerce and the State Administration for Industry and Commerce. The Ministry of Commerce and the State Administration for Industry and Commerce shall examine whether it will lead to excessive centralization in the domestic market, hinder domestic fair competition, or harm domestic consumers’ benefits, and then make a decision on approval or disapproval: (1) The overseas party of the M&A owns assets of more than RMB 3 billion Yuan in the territory of China; (2) The business volume of the overseas party of the M&A in the Chinese market is more than RMB 1.5 billion yuan in the current year; (3) The market share of the overseas party of the M&A and its connected enterprises in Chinese Market has reached 20%; (4) Due to overseas M&A, the market share of the overseas party of the M&A and its connected enterprises in China has reached 25%; or (5) Due to overseas M&A, there will be more than 15 foreign-invested enterprises participating directly or indirectly in equities of corresponding domestic industries. Article 54 Where a M&A is under any of the following circumstances, any party of the M&A may apply for examination exemption to the Ministry of Commerce and the State Administration for Industry and Commerce: (1) May improve the conditions for market fair competition; (2) Re-organizing losing enterprises and ensure outplacement; (3) Introduce advanced technology and qualified management personnel and be able to improve the enterprise’s international competitiveness; or (4) May improve the environment. Chapter VI Supplementary Provisions Article 55 These Regulations is applicable to the case that an investment company established by a foreign investor within China merges and acquires a domestic enterprise. Where a foreign investor purchases the equities of the shareholder of a foreign-invested enterprise in China or offer to buy the capital increase of a foreign-invested enterprise in China, it shall be applicable to current laws, administrative regulations on foreign-invested enterprises as well as corresponding provisions on equities changes of the investors of foreign-invested enterprise. If any case is not covered by the aforesaid laws, administrative regulations or provisions, it shall be handled according to these Regulations. Where a foreign investor merges or acquires a domestic enterprise through a foreign-invested enterprise established by it within China, it shall apply to corresponding provisions on the combination and split-up of foreign-invested enterprises and corresponding provisions on domestic investment of foreign-invested enterprise. If any case is not covered by the aforesaid provisions, it shall be handled according to these Regulations. Where a foreign investor merges and acquires a domestic limited liability company and transforms it into a joint stock limited company, or if the domestic company is a joint stock limited company, it shall be applicable to the corresponding provisions on the establishment of a joint stock limited company; if any case is not covered by the aforesaid provisions, it shall be applicable to these Regulations. Article 56 An applicant or declarer shall submit the documents after classifying the documents into different categories and the catalogue is enclosed in accordance with these Regulations.. All documents required to be submitted shall be written in Chinese. Article 57 A Chinese natural-person shareholder of a domestic company taken over by equities may, after obtaining the approval, continue to be a Chinese investor of the foreign-invested enterprise established after modification. Article 58 If a natural-person shareholder of a domestic company changes his nationality, the enterprise nature of the company shall not be changed. Article 59 The staffs of corresponding governmental authorities shall be devoted to their duties, perform their duties in accordance with the law, and shall not seek any improper benefit by taking the advantage of their positions, and shall keep confidential the commercial secrets they have known. Article 60 Where an investor from Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan Region mergers and acquires a enterprise of any other region in China, it shall be handled according to these Regulations. Article 61 These Regulations shall come into force as of September 8, 2006.
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商务部 国务院国有资产监督管理委员会 国家税务总局 国家工商行政管理总局 中国证券监督管理委员会 国家外汇管理局令2006年第10号公布《关于外国投资者并购境内企业的规定》2006-08-09 18:26 文章来源：条法司文章类型：原创 内容分类：政策 【发布单位】商务部 国务院国有资产监督管理委员会 国家税务总局 国家工商行政管理总局 中国证券监督管理委员会 国家外汇管理局 【发布文号】商务部 国务院国有资产监督管理委员会 国家税务总局 国家工商行政管理总局 中国证券监督管理委员会 国家外汇管理局令2006年第10号 【发布日期】2006-08-08 【实施日期】2006-09-08 中华人民共和国商务部 国务院国有资产监督管理委员会 国家税务总局 国家工商行政管理总局 令 中国证券监督管理委员会 国家外汇管理局二OO六年 第10号 《外国投资者并购境内企业暂行规定》已由中华人民共和国商务部第7次部务会议修订通过，现将修订后的《关于外国投资者并购境内企业的规定》公布，自2006年9月8日起施行。中华人民共和国商务部 部长 薄熙来国务院国有资产监督管理委员会 主任 李荣融国家税务总局 局长 谢旭人国家工商行政管理总局 局长 王众孚中国证券监督管理委员会 主席 尚福林国家外汇管理局 局长 胡晓炼二OO六年八月八日---------------------------------------------------------------------------------关于外国投资者并购境内企业的规定 目 录 第一章 总 则 第二章 基本制度 第三章 审批与登记 第四章 外国投资者以股权作为支付手段并购境内公司 第一节 以股权并购的条件 第二节 申报文件与程序 第三节 对于特殊目的公司的特别规定 第五章 反垄断审查 第六章 附 则第一章 总则 第一条 为了促进和规范外国投资者来华投资，引进国外的先进技术和管理经验，提高利用外资的水平，实现资源的合理配置，保证就业、维护公平竞争和国家经济安全，依据外商投资企业的法律、行政法规及《公司法》和其他相关法律、行政法规，制定本规定。 第二条本规定所称外国投资者并购境内企业，系指外国投资者购买境内非外商投资企业（以下称"境内公司"）股东的股权或认购境内公司增资，使该境内公司变更设立为外商投资企业（以下称"股权并购"）；或者，外国投资者设立外商投资企业，并通过该企业协议购买境内企业资产且运营该资产，或，外国投资者协议购买境内企业资产，并以该资产投资设立外商投资企业运营该资产（以下称"资产并购"）。 第三条 外国投资者并购境内企业应遵守中国的法律、行政法规和规章，遵循公平合理、等价有偿、诚实信用的原则，不得造成过度集中、排除或限制竞争，不得扰乱社会经济秩序和损害社会公共利益，不得导致国有资产流失。 第四条 外国投资者并购境内企业，应符合中国法律、行政法规和规章对投资者资格的要求及产业、土地、环保等政策。 依照《外商投资产业指导目录》不允许外国投资者独资经营的产业，并购不得导致外国投资者持有企业的全部股权；需由中方控股或相对控股的产业，该产业的企业被并购后，仍应由中方在企业中占控股或相对控股地位；禁止外国投资者经营的产业，外国投资者不得并购从事该产业的企业。 被并购境内企业原有所投资企业的经营范围应符合有关外商投资产业政策的要求；不符合要求的，应进行调整。 第五条 外国投资者并购境内企业涉及企业国有产权转让和上市公司国有股权管理事宜的，应当遵守国有资产管理的相关规定。 第六条 外国投资者并购境内企业设立外商投资企业，应依照本规定经审批机关批准，向登记管理机关办理变更登记或设立登记。 如果被并购企业为境内上市公司，还应根据《外国投资者对上市公司战略投资管理办法》，向国务院证券监督管理机构办理相关手续。 第七条 外国投资者并购境内企业所涉及的各方当事人应当按照中国税法规定纳税，接受税务机关的监督。 第八条 外国投资者并购境内企业所涉及的各方当事人应遵守中国有关外汇管理的法律和行政法规，及时向外汇管理机关办理各项外汇核准、登记、备案及变更手续。第二章 基本制度 第九条 外国投资者在并购后所设外商投资企业注册资本中的出资比例高于25％的，该企业享受外商投资企业待遇。 外国投资者在并购后所设外商投资企业注册资本中的出资比例低于25%的，除法律和行政法规另有规定外，该企业不享受外商投资企业待遇，其举借外债按照境内非外商投资企业举借外债的有关规定办理。审批机关向其颁发加注"外资比例低于25%"字样的外商投资企业批准证书（以下称"批准证书"）。登记管理机关、外汇管理机关分别向其颁发加注"外资比例低于25%"字样的外商投资企业营业执照和外汇登记证。 境内公司、企业或自然人以其在境外合法设立或控制的公司名义并购与其有关联关系的境内公司，所设立的外商投资企业不享受外商投资企业待遇，但该境外公司认购境内公司增资，或者该境外公司向并购后所设企业增资，增资额占所设企业注册资本比例达到25%以上的除外。根据该款所述方式设立的外商投资企业，其实际控制人以外的外国投资者在企业注册资本中的出资比例高于25%的，享受外商投资企业待遇。 外国投资者并购境内上市公司后所设外商投资企业的待遇，按照国家有关规定办理。 第十条 本规定所称的审批机关为中华人民共和国商务部或省级商务主管部门(以下称"省级审批机关")，登记管理机关为中华人民共和国国家工商行政管理总局或其授权的地方工商行政管理局，外汇管理机关为中华人民共和国国家外汇管理局或其分支机构。 并购后所设外商投资企业，根据法律、行政法规和规章的规定，属于应由商务部审批的特定类型或行业的外商投资企业的，省级审批机关应将申请文件转报商务部审批，商务部依法决定批准或不批准。 第十一条 境内公司、企业或自然人以其在境外合法设立或控制的公司名义并购与其有关联关系的境内的公司，应报商务部审批。 当事人不得以外商投资企业境内投资或其他方式规避前述要求。 第十二条 外国投资者并购境内企业并取得实际控制权，涉及重点行业、存在影响或可能影响国家经济安全因素或者导致拥有驰名商标或中华老字号的境内企业实际控制权转移的，当事人应就此向商务部进行申报。 当事人未予申报，但其并购行为对国家经济安全造成或可能造成重大影响的，商务部可以会同相关部门要求当事人终止交易或采取转让相关股权、资产或其他有效措施，以消除并购行为对国家经济安全的影响。 第十三条 外国投资者股权并购的，并购后所设外商投资企业承继被并购境内公司的债权和债务。 外国投资者资产并购的，出售资产的境内企业承担其原有的债权和债务。 外国投资者、被并购境内企业、债权人及其他当事人可以对被并购境内企业的债权债务的处置另行达成协议，但是该协议不得损害第三人利益和社会公共利益。债权债务的处置协议应报送审批机关。 出售资产的境内企业应当在投资者向审批机关报送申请文件之前至少15日，向债权人发出通知书，并在全国发行的省级以上报纸上发布公告。 第十四条并购当事人应以资产评估机构对拟转让的股权价值或拟出售资产的评估结果作为确定交易价格的依据。并购当事人可以约定在中国境内依法设立的资产评估机构。资产评估应采用国际通行的评估方法。禁止以明显低于评估结果的价格转让股权或出售资产，变相向境外转移资本。 外国投资者并购境内企业，导致以国有资产投资形成的股权变更或国有资产产权转移时，应当符合国有资产管理的有关规定。 第十五条 并购当事人应对并购各方是否存在关联关系进行说明，如果有两方属于同一个实际控制人，则当事人应向审批机关披露其实际控制人，并就并购目的和评估结果是否符合市场公允价值进行解释。当事人不得以信托、代持或其他方式规避前述要求。 第十六条外国投资者并购境内企业设立外商投资企业，外国投资者应自外商投资企业营业执照颁发之日起3个月内向转让股权的股东，或出售资产的境内企业支付全部对价。对特殊情况需要延长者，经审批机关批准后，应自外商投资企业营业执照颁发之日起6个月内支付全部对价的60%以上，1年内付清全部对价，并按实际缴付的出资比例分配收益。 外国投资者认购境内公司增资，有限责任公司和以发起方式设立的境内股份有限公司的股东应当在公司申请外商投资企业营业执照时缴付不低于20% 的新增注册资本，其余部分的出资时间应符合《公司法》、有关外商投资的法律和《公司登记管理条例》的规定。其他法律和行政法规另有规定的，从其规定。股份有限公司为增加注册资本发行新股时，股东认购新股，依照设立股份有限公司缴纳股款的有关规定执行。 外国投资者资产并购的，投资者应在拟设立的外商投资企业合同、章程中规定出资期限。设立外商投资企业，并通过该企业协议购买境内企业资产且运营该资产的，对与资产对价等额部分的出资，投资者应在本条第一款规定的对价支付期限内缴付；其余部分的出资应符合设立外商投资企业出资的相关规定。 外国投资者并购境内企业设立外商投资企业，如果外国投资者出资比例低于企业注册资本25%的，投资者以现金出资的，应自外商投资企业营业执照颁发之日起3个月内缴清；投资者以实物、工业产权等出资的，应自外商投资企业营业执照颁发之日起6个月内缴清。 第十七条 作为并购对价的支付手段，应符合国家有关法律和行政法规的规定。外国投资者以其合法拥有的人民币资产作为支付手段的，应经外汇管理机关核准。外国投资者以其拥有处置权的股权作为支付手段的，按照本规定第四章办理。 第十八条 外国投资者协议购买境内公司股东的股权，境内公司变更设立为外商投资企业后，该外商投资企业的注册资本为原境内公司注册资本，外国投资者的出资比例为其所购买股权在原注册资本中所占比例。 外国投资者认购境内有限责任公司增资的，并购后所设外商投资企业的注册资本为原境内公司注册资本与增资额之和。外国投资者与被并购境内公司原其他股东，在境内公司资产评估的基础上，确定各自在外商投资企业注册资本中的出资比例。 外国投资者认购境内股份有限公司增资的，按照《公司法》有关规定确定注册资本。 第十九条 外国投资者股权并购的，除国家另有规定外，对并购后所设外商投资企业应按照以下比例确定投资总额的上限： （一） 注册资本在210万美元以下的，投资总额不得超过注册资本的10/7； （二） 注册资本在210万美元以上至500万美元的，投资总额不得超过注册资本的2倍； （三） 注册资本在500万美元以上至1200万美元的，投资总额不得超过注册资本的2.5倍； （四） 注册资本在1200万美元以上的，投资总额不得超过注册资本的3倍。 第二十条 外国投资者资产并购的，应根据购买资产的交易价格和实际生产经营规模确定拟设立的外商投资企业的投资总额。拟设立的外商投资企业的注册资本与投资总额的比例应符合有关规定。第三章 审批与登记 第二十一条 外国投资者股权并购的，投资者应根据并购后所设外商投资企业的投资总额、企业类型及所从事的行业，依照设立外商投资企业的法律、行政法规和规章的规定，向具有相应审批权限的审批机关报送下列文件： （一） 被并购境内有限责任公司股东一致同意外国投资者股权并购的决议，或被并购境内股份有限公司同意外国投资者股权并购的股东大会决议； （二） 被并购境内公司依法变更设立为外商投资企业的申请书； （三） 并购后所设外商投资企业的合同、章程； （四） 外国投资者购买境内公司股东股权或认购境内公司增资的协议； （五） 被并购境内公司上一财务年度的财务审计报告； （六） 经公证和依法认证的投资者的身份证明文件或注册登记证明及资信证明文件； （七） 被并购境内公司所投资企业的情况说明； （八） 被并购境内公司及其所投资企业的营业执照(副本)； （九） 被并购境内公司职工安置计划； （十） 本规定第十三条、第十四条、第十五条要求报送的文件。 并购后所设外商投资企业的经营范围、规模、土地使用权的取得等，涉及其他相关政府部门许可的，有关的许可文件应一并报送。 第二十二条 股权购买协议、境内公司增资协议应适用中国法律，并包括以下主要内容： （一） 协议各方的状况，包括名称（姓名），住所，法定代表人姓名、职务、国籍等； （二） 购买股权或认购增资的份额和价款； （三） 协议的履行期限、履行方式； （四） 协议各方的权利、义务； （五） 违约责任、争议解决； （六） 协议签署的时间、地点。 第二十三条 外国投资者资产并购的，投资者应根据拟设立的外商投资企业的投资总额、企业类型及所从事的行业，依照设立外商投资企业的法律、行政法规和规章的规定，向具有相应审批权限的审批机关报送下列文件： （一） 境内企业产权持有人或权力机构同意出售资产的决议； （二） 外商投资企业设立申请书； （三） 拟设立的外商投资企业的合同、章程； （四） 拟设立的外商投资企业与境内企业签署的资产购买协议，或外国投资者与境内企业签署的资产购买协议； （五） 被并购境内企业的章程、营业执照(副本)； （六） 被并购境内企业通知、公告债权人的证明以及债权人是否提出异议的说明； （七）经公证和依法认证的投资者的身份证明文件或开业证明、有关资信证明文件； （八） 被并购境内企业职工安置计划； （九） 本规定第十三条、第十四条、第十五条要求报送的文件。 依照前款的规定购买并运营境内企业的资产，涉及其他相关政府部门许可的，有关的许可文件应一并报送。 外国投资者协议购买境内企业资产并以该资产投资设立外商投资企业的，在外商投资企业成立之前，不得以该资产开展经营活动。 第二十四条 资产购买协议应适用中国法律，并包括以下主要内容： （一） 协议各方的状况，包括名称（姓名），住所，法定代表人姓名、职务、国籍等； （二） 拟购买资产的清单、价格； （三） 协议的履行期限、履行方式； （四） 协议各方的权利、义务； （五） 违约责任、争议解决； （六） 协议签署的时间、地点。 第二十五条 外国投资者并购境内企业设立外商投资企业，除本规定另有规定外，审批机关应自收到规定报送的全部文件之日起30日内，依法决定批准或不批准。决定批准的，由审批机关颁发批准证书。 外国投资者协议购买境内公司股东股权，审批机关决定批准的，应同时将有关批准文件分别抄送股权转让方、境内公司所在地外汇管理机关。股权转让方所在地外汇管理机关为其办理转股收汇外资外汇登记并出具相关证明，转股收汇外资外汇登记证明是证明外方已缴付的股权收购对价已到位的有效文件。 第二十六条 外国投资者资产并购的，投资者应自收到批准证书之日起30日内，向登记管理机关申请办理设立登记，领取外商投资企业营业执照。 外国投资者股权并购的，被并购境内公司应依照本规定向原登记管理机关申请变更登记，领取外商投资企业营业执照。原登记管理机关没有登记管辖权的，应自收到申请文件之日起10日内转送有管辖权的登记管理机关办理，同时附送该境内公司的登记档案。被并购境内公司在申请变更登记时，应提交以下文件，并对其真实性和有效性负责： （一）变更登记申请书； （二）外国投资者购买境内公司股东股权或认购境内公司增资的协议； （三）修改后的公司章程或原章程的修正案和依法需要提交的外商投资企业合同； （四）外商投资企业批准证书； （五）外国投资者的主体资格证明或者自然人身份证明； （六）修改后的董事会名单，记载新增董事姓名、住所的文件和新增董事的任职文件； （七）国家工商行政管理总局规定的其他有关文件和证件。 投资者自收到外商投资企业营业执照之日起30日内，到税务、海关、土地管理和外汇管理等有关部门办理登记手续。第四章 外国投资者以股权作为支付手段并购境内公司 第一节 以股权并购的条件 第二十七条 本章所称外国投资者以股权作为支付手段并购境内公司，系指境外公司的股东以其持有的境外公司股权，或者境外公司以其增发的股份，作为支付手段，购买境内公司股东的股权或者境内公司增发股份的行为。 第二十八条 本章所称的境外公司应合法设立并且其注册地具有完善的公司法律制度，且公司及其管理层最近3年未受到监管机构的处罚；除本章第三节所规定的特殊目的公司外，境外公司应为上市公司，其上市所在地应具有完善的证券交易制度。 第二十九条 外国投资者以股权并购境内公司所涉及的境内外公司的股权，应符合以下条件： （一）股东合法持有并依法可以转让； （二）无所有权争议且没有设定质押及任何其他权利限制； （三）境外公司的股权应在境外公开合法证券交易市场（柜台交易市场除外）挂牌交易； （四）境外公司的股权最近1年交易价格稳定。 前款第（三）、（四）项不适用于本章第三节所规定的特殊目的公司。 第三十条外国投资者以股权并购境内公司，境内公司或其股东应当聘请在中国注册登记的中介机构担任顾问（以下称"并购顾问"）。并购顾问应就并购申请文件的真实性、境外公司的财务状况以及并购是否符合本规定第十四条、第二十八条和第二十九条的要求作尽职调查，并出具并购顾问报告，就前述内容逐项发表明确的专业意见。 第三十一条 并购顾问应符合以下条件： （一）信誉良好且有相关从业经验； （二）无重大违法违规记录； （三）应有调查并分析境外公司注册地和上市所在地法律制度与境外公司财务状况的能力。 第二节 申报文件与程序 第三十二条 外国投资者以股权并购境内公司应报送商务部审批，境内公司除报送本规定第三章所要求的文件外，另须报送以下文件： （一）境内公司最近1年股权变动和重大资产变动情况的说明； （二）并购顾问报告； （三）所涉及的境内外公司及其股东的开业证明或身份证明文件； （四）境外公司的股东持股情况说明和持有境外公司5％以上股权的股东名录； （五）境外公司的章程和对外担保的情况说明； （六）境外公司最近年度经审计的财务报告和最近半年的股票交易情况报告。 第三十三条 商务部自收到规定报送的全部文件之日起30日内对并购申请进行审核，符合条件的，颁发批准证书，并在批准证书上加注"外国投资者以股权并购境内公司，自营业执照颁发之日起6个月内有效"。 第三十四条 境内公司应自收到加注的批准证书之日起30日内，向登记管理机关、外汇管理机关办理变更登记，由登记管理机关、外汇管理机关分别向其颁发加注"自颁发之日起8个月内有效"字样的外商投资企业营业执照和外汇登记证。 境内公司向登记管理机关办理变更登记时，应当预先提交旨在恢复股权结构的境内公司法定代表人签署的股权变更申请书、公司章程修正案、股权转让协议等文件。 第三十五条 自营业执照颁发之日起6个月内，境内公司或其股东应就其持有境外公司股权事项，向商务部、外汇管理机关申请办理境外投资开办企业核准、登记手续。 当事人除向商务部报送《关于境外投资开办企业核准事项的规定》所要求的文件外，另须报送加注的外商投资企业批准证书和加注的外商投资企业营业执照。商务部在核准境内公司或其股东持有境外公司的股权后，颁发中国企业境外投资批准证书，并换发无加注的外商投资企业批准证书。 境内公司取得无加注的外商投资企业批准证书后，应在30日内向登记管理机关、外汇管理机关申请换发无加注的外商投资企业营业执照、外汇登记证。 第三十六条 自营业执照颁发之日起6个月内，如果境内外公司没有完成其股权变更手续，则加注的批准证书和中国企业境外投资批准证书自动失效，登记管理机关根据境内公司预先提交的股权变更登记申请文件核准变更登记，使境内公司股权结构恢复到股权并购之前的状态。 并购境内公司增发股份而未实现的，在登记管理机关根据前款予以核准变更登记之前，境内公司还应当按照《公司法》的规定，减少相应的注册资本并在报纸上公告。 境内公司未按照前款规定办理相应的登记手续的，由登记管理机关按照《公司登记管理条例》的有关规定处理。 第三十七条 境内公司取得无加注的外商投资企业批准证书、外汇登记证之前，不得向股东分配利润或向有关联关系的公司提供担保，不得对外支付转股、减资、清算等资本项目款项。 第三十八条 境内公司或其股东凭商务部和登记管理机关颁发的无加注批准证书和营业执照，到税务机关办理税务变更登记。 第三节 对于特殊目的公司的特别规定 第三十九条 特殊目的公司系指中国境内公司或自然人为实现以其实际拥有的境内公司权益在境外上市而直接或间接控制的境外公司。 特殊目的公司为实现在境外上市，其股东以其所持公司股权，或者特殊目的公司以其增发的股份，作为支付手段，购买境内公司股东的股权或者境内公司增发的股份的，适用本节规定。 当事人以持有特殊目的公司权益的境外公司作为境外上市主体的，该境外公司应符合本节对于特殊目的公司的相关要求。 第四十条 特殊目的公司境外上市交易，应经国务院证券监督管理机构批准。 特殊目的公司境外上市所在国家或者地区应有完善的法律和监管制度，其证券监管机构已与国务院证券监督管理机构签订监管合作谅解备忘录，并保持着有效的监管合作关系。 第四十一条 本节所述的权益在境外上市的境内公司应符合下列条件： （一）产权明晰，不存在产权争议或潜在产权争议； （二）有完整的业务体系和良好的持续经营能力； （三）有健全的公司治理结构和内部管理制度； （四）公司及其主要股东近3年无重大违法违规记录。 第四十二条 境内公司在境外设立特殊目的公司，应向商务部申请办理核准手续。办理核准手续时，境内公司除向商务部报送《关于境外投资开办企业核准事项的规定》要求的文件外，另须报送以下文件： （一）特殊目的公司最终控制人的身份证明文件； （二）特殊目的公司境外上市商业计划书； （三）并购顾问就特殊目的公司未来境外上市的股票发行价格所作的评估报告。 获得中国企业境外投资批准证书后，设立人或控制人应向所在地外汇管理机关申请办理相应的境外投资外汇登记手续。 第四十三条 特殊目的公司境外上市的股票发行价总值，不得低于其所对应的经中国有关资产评估机构评估的被并购境内公司股权的价值。 第四十四条 特殊目的公司以股权并购境内公司的，境内公司除向商务部报送本规定第三十二条所要求的文件外，另须报送以下文件： （一）设立特殊目的公司时的境外投资开办企业批准文件和证书； （二）特殊目的公司境外投资外汇登记表； （三）特殊目的公司最终控制人的身份证明文件或开业证明、章程； （四）特殊目的公司境外上市商业计划书； （五）并购顾问就特殊目的公司未来境外上市的股票发行价格所作的评估报告。 如果以持有特殊目的公司权益的境外公司作为境外上市主体，境内公司还须报送以下文件： （一）该境外公司的开业证明和章程； （二）特殊目的公司与该境外公司之间就被并购的境内公司股权所作的交易安排和折价方法的详细说明。 第四十五条 商务部对本规定第四十四条所规定的文件初审同意的，出具原则批复函，境内公司凭该批复函向国务院证券监督管理机构报送申请上市的文件。国务院证券监督管理机构于20个工作日内决定是否核准。 境内公司获得核准后，向商务部申领批准证书。商务部向其颁发加注"境外特殊目的公司持股，自营业执照颁发之日起1年内有效"字样的批准证书。 并购导致特殊目的公司股权等事项变更的，持有特殊目的公司股权的境内公司或自然人，凭加注的外商投资企业批准证书，向商务部就特殊目的公司相关事项办理境外投资开办企业变更核准手续，并向所在地外汇管理机关申请办理境外投资外汇登记变更。 第四十六条 境内公司应自收到加注的批准证书之日起30日内，向登记管理机关、外汇管理机关办理变更登记，由登记管理机关、外汇管理机关分别向其颁发加注"自颁发之日起14个月内有效"字样的外商投资企业营业执照和外汇登记证。 境内公司向登记管理机关办理变更登记时，应当预先提交旨在恢复股权结构的境内公司法定代表人签署的股权变更申请书、公司章程修正案、股权转让协议等文件。 第四十七条境内公司应自特殊目的公司或与特殊目的公司有关联关系的境外公司完成境外上市之日起30日内，向商务部报告境外上市情况和融资收入调回计划，并申请换发无加注的外商投资企业批准证书。同时，境内公司应自完成境外上市之日起30日内，向国务院证券监督管理机构报告境外上市情况并提供相关的备案文件。境内公司还应向外汇管理机关报送融资收入调回计划，由外汇管理机关监督实施。境内公司取得无加注的批准证书后，应在30日内向登记管理机关、外汇管理机关申请换发无加注的外商投资企业营业执照、外汇登记证。 如果境内公司在前述期限内未向商务部报告，境内公司加注的批准证书自动失效，境内公司股权结构恢复到股权并购之前的状态，并应按本规定第三十六条办理变更登记手续。 第四十八条 特殊目的公司的境外上市融资收入，应按照报送外汇管理机关备案的调回计划，根据现行外汇管理规定调回境内使用。融资收入可采取以下方式调回境内： （一）向境内公司提供商业贷款； （二）在境内新设外商投资企业； （三）并购境内企业。 在上述情形下调回特殊目的公司境外融资收入，应遵守中国有关外商投资及外债管理的法律和行政法规。如果调回特殊目的公司境外融资收入，导致境内公司和自然人增持特殊目的公司权益或特殊目的公司净资产增加，当事人应如实披露并报批，在完成审批手续后办理相应的外资外汇登记和境外投资登记变更。 境内公司及自然人从特殊目的公司获得的利润、红利及资本变动所得外汇收入，应自获得之日起6个月内调回境内。利润或红利可以进入经常项目外汇帐户或者结汇。资本变动外汇收入经外汇管理机关核准，可以开立资本项目专用帐户保留，也可经外汇管理机关核准后结汇。 第四十九条 自营业执照颁发之日起1年内，如果境内公司不能取得无加注批准证书，则加注的批准证书自动失效，并应按本规定第三十六条办理变更登记手续。 第五十条 特殊目的公司完成境外上市且境内公司取得无加注的批准证书和营业执照后，当事人继续以该公司股份作为支付手段并购境内公司的，适用本章第一节和第二节的规定。第五章 反垄断审查 第五十一条 外国投资者并购境内企业有下列情形之一的，投资者应就所涉情形向商务部和国家工商行政管理总局报告： （一） 并购一方当事人当年在中国市场营业额超过15亿元人民币； （二） 1年内并购国内关联行业的企业累计超过10个； （三） 并购一方当事人在中国的市场占有率已经达到20%； （四） 并购导致并购一方当事人在中国的市场占有率达到25%。 虽未达到前款所述条件，但是应有竞争关系的境内企业、有关职能部门或者行业协会的请求，商务部或国家工商行政管理总局认为外国投资者并购涉及市场份额巨大，或者存在其他严重影响市场竞争等重要因素的，也可以要求外国投资者作出报告。 上述并购一方当事人包括与外国投资者有关联关系的企业。 第五十二条外国投资者并购境内企业涉及本规定第五十一条所述情形之一，商务部和国家工商行政管理总局认为可能造成过度集中，妨害正当竞争、损害消费者利益的，应自收到规定报送的全部文件之日起90日内，共同或经协商单独召集有关部门、机构、企业以及其他利害关系方举行听证会，并依法决定批准或不批准。 第五十三条境外并购有下列情形之一的，并购方应在对外公布并购方案之前或者报所在国主管机构的同时，向商务部和国家工商行政管理总局报送并购方案。商务部和国家工商行政管理总局应审查是否存在造成境内市场过度集中，妨害境内正当竞争、损害境内消费者利益的情形，并做出是否同意的决定： （一） 境外并购一方当事人在我国境内拥有资产30亿元人民币以上； （二） 境外并购一方当事人当年在中国市场上的营业额15亿元人民币以上； （三） 境外并购一方当事人及与其有关联关系的企业在中国市场占有率已经达到20%； （四） 由于境外并购，境外并购一方当事人及与其有关联关系的企业在中国的市场占有率达到25%； （五） 由于境外并购，境外并购一方当事人直接或间接参股境内相关行业的外商投资企业将超过15家。 第五十四条 有下列情况之一的并购，并购一方当事人可以向商务部和国家工商行政管理总局申请审查豁免： （一） 可以改善市场公平竞争条件的； （二） 重组亏损企业并保障就业的； （三） 引进先进技术和管理人才并能提高企业国际竞争力的； （四） 可以改善环境的。第六章 附则 第五十五条 外国投资者在中国境内依法设立的投资性公司并购境内企业，适用本规定。 外国投资者购买境内外商投资企业股东的股权或认购境内外商投资企业增资的，适用现行外商投资企业法律、行政法规和外商投资企业投资者股权变更的相关规定，其中没有规定的，参照本规定办理。 外国投资者通过其在中国设立的外商投资企业合并或收购境内企业的，适用关于外商投资企业合并与分立的相关规定和关于外商投资企业境内投资的相关规定，其中没有规定的，参照本规定办理。 外国投资者并购境内有限责任公司并将其改制为股份有限公司的，或者境内公司为股份有限公司的，适用关于设立外商投资股份有限公司的相关规定，其中没有规定的，适用本规定。 第五十六条 申请人或申报人报送文件，应依照本规定对文件进行分类，并附文件目录。规定报送的全部文件应用中文表述。 第五十七条 被股权并购境内公司的中国自然人股东，经批准，可继续作为变更后所设外商投资企业的中方投资者。 第五十八条 境内公司的自然人股东变更国籍的，不改变该公司的企业性质。 第五十九条 相关政府机构工作人员必须忠于职守、依法履行职责，不得利用职务之便牟取不正当利益，并对知悉的商业秘密负有保密义务。 第六十条 香港特别行政区、澳门特别行政区和台湾地区的投资者并购境内其他地区的企业，参照本规定办理。 第六十一条 本规定自2006年9月8日起施行。