1. With regard to a foreign investor' merger and acquisition (M&A) of a domestic enterprise that falls under the scope of M&A security review specified in the Notice of the General Office of the State Council on Launching the Security Review System for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, the investor shall file an application with the Ministry of Commerce for M&A security review.
If the M&A is carried out by two or more foreign investors, they may jointly file an application with the Ministry of Commerce for M&A security review or designate one of the investors (hereinafter referred to as the "applicant") to do so.
If the M&A is carried out by two or more foreign investors, they may jointly file an application with the Ministry of Commerce for M&A security review or designate one of the investors (hereinafter referred to as the "applicant") to do so.
一、外国投资者并购属于《国务院办公厅关于建立外国投资者并购境内企业安全审查制度的通知》明确的并购安全审查范围的境内企业,应向商务部提出并购安全审查申请。
两个或者两个以上外国投资者共同并购的,可以共同或确定一个外国投资者向商务部提出并购安全审查申请(以下简称申请人)。
2. Where local commerce competent authorities handle applications for M&A transactions in accordance with the Provisions on Foreign Investors' Merger with and Acquisition of Domestic Enterprises, the Certain Provisions on Change of the Equity Interests of the Investors of A Foreign-Invested Enterprise, and other relevant provisions, if the concerned M&A transactions fall under the scope of security review while the applicants fail to file applications with the Ministry of Commerce for M&A security review, the concerned local commerce competent authorities shall temporarily refuse to accept the applications, require the applicants to file applications for M&A security review with the Ministry of Commerce, and report the relevant information to the Ministry of Commerce.
二、地方商务主管部门在按照《关于外国投资者并购境内企业的规定》、《外商投资企业投资者股权变更的若干规定》等有关规定受理并购交易申请时,对于属于并购安全审查范围,但申请人未向商务部提出并购安全审查申请的,应暂不受理并购交易申请,书面要求申请人向商务部提交并购安全审查申请,并将有关情况上报商务部。
3. Before filing an official application with the Ministry of Commerce for M&A security review, an applicant may request a negotiation with the Ministry of Commerce on the procedural issues concerning its M&A of a domestic enterprise.
三、在向商务部提出并购安全审查正式申请前,申请人可就其并购境内企业的程序性问题向商务部提出商谈申请。
4. An applicant shall submit the following documents when filing an official application with the Ministry of Commerce for M&A security review:
(1) Written application for M&A security review and a statement describing the concerned M&A transaction, to which the signature of the legal representative of the applicant or authorized representative shall be affixed;
(2) Identity certification, registration certification, or credit worthiness certification documents of the foreign investor which have been notarized or certified in accordance with the law; identity certification document of the legal representative, or the power of attorney issued by the foreign investor and identity certification document of the authorized representative thereof;
(3) Statement on the information pertaining to the foreign investor and its associated enterprises (including its actual controller or parties acting in concert), and a statement on its relationship with the government of relevant countries;
(4) Statement on operating status of the target domestic enterprise, its articles of association, business license (photocopy), audited financial statements for the previous year, chart of its organizational structures prior to and after the M&A, and a statement on the operating status of enterprises invested by the target enterprise, and business licenses (photocopy) of such enterprises;
(5) Contract, articles of association, and partnership agreement of the foreign-invested enterprise to be established after the M&A, and the name list of members of the board of directors thereof appointed by the shareholders, and senior executives to be engaged such as the general manager, partners, etc.;
(6) In the case of M&A involving equity transfer, the equity transfer agreement or the agreement on subscription by the foreign investor for capital increase of the domestic enterprise, resolution of the shareholders' meeting or general meeting of shareholders of the target domestic enterprise, and the relevant asset evaluation report shall be submitted;
(7) In the case of M&A involving transfer of assets, the resolution of the ultimate decision-making body or property right owner of the concerned domestic enterprise approving the sale of the assets, assets purchase agreement (including the checklist and status of the assets to be purchased), statement on the information of each party to the agreement, and the relevant asset evaluation report shall be submitted;
(8) Statement on the impact of the voting rights enjoyed by the foreign investor after the M&A on the resolution of the shareholders' meeting, general meeting of shareholders, or the board of directors, or on the execution of partnership affairs, a statement on other situations that may result in the transfer of actual controlling rights related to business decision-making, financial matters, human resources, technologies, etc., to the foreign investor or its domestic or overseas associated enterprises, and the agreement or documents relevant to the abovesaid situations; and
(9) Other documents required by the Ministry of Commerce.
(1) Written application for M&A security review and a statement describing the concerned M&A transaction, to which the signature of the legal representative of the applicant or authorized representative shall be affixed;
(2) Identity certification, registration certification, or credit worthiness certification documents of the foreign investor which have been notarized or certified in accordance with the law; identity certification document of the legal representative, or the power of attorney issued by the foreign investor and identity certification document of the authorized representative thereof;
(3) Statement on the information pertaining to the foreign investor and its associated enterprises (including its actual controller or parties acting in concert), and a statement on its relationship with the government of relevant countries;
(4) Statement on operating status of the target domestic enterprise, its articles of association, business license (photocopy), audited financial statements for the previous year, chart of its organizational structures prior to and after the M&A, and a statement on the operating status of enterprises invested by the target enterprise, and business licenses (photocopy) of such enterprises;
(5) Contract, articles of association, and partnership agreement of the foreign-invested enterprise to be established after the M&A, and the name list of members of the board of directors thereof appointed by the shareholders, and senior executives to be engaged such as the general manager, partners, etc.;
(6) In the case of M&A involving equity transfer, the equity transfer agreement or the agreement on subscription by the foreign investor for capital increase of the domestic enterprise, resolution of the shareholders' meeting or general meeting of shareholders of the target domestic enterprise, and the relevant asset evaluation report shall be submitted;
(7) In the case of M&A involving transfer of assets, the resolution of the ultimate decision-making body or property right owner of the concerned domestic enterprise approving the sale of the assets, assets purchase agreement (including the checklist and status of the assets to be purchased), statement on the information of each party to the agreement, and the relevant asset evaluation report shall be submitted;
(8) Statement on the impact of the voting rights enjoyed by the foreign investor after the M&A on the resolution of the shareholders' meeting, general meeting of shareholders, or the board of directors, or on the execution of partnership affairs, a statement on other situations that may result in the transfer of actual controlling rights related to business decision-making, financial matters, human resources, technologies, etc., to the foreign investor or its domestic or overseas associated enterprises, and the agreement or documents relevant to the abovesaid situations; and
(9) Other documents required by the Ministry of Commerce.
四、在向商务部提出并购安全审查正式申请时,申请人应提交下列文件:
(一)经申请人的法定代表人或其授权代表签署的并购安全审查申请书和交易情况说明;
(二)经公证和依法认证的外国投资者身份证明或注册登记证明及资信证明文件;法定代表人身份证明或外国投资者的授权代表委托书、授权代表身份证明;
(三)外国投资者及关联企业(包括其实际控制人、一致行动人)的情况说明,与相关国家政府的关系说明;
(四)被并购境内企业的情况说明、章程、营业执照(复印件)、上一年度经审计的财务报表、并购前后组织架构图、所投资企业的情况说明和营业执照(复印件);
(五)并购后拟设立的外商投资企业的合同、章程或合伙协议以及拟由股东各方委任的董事会成员、聘用的总经理或合伙人等高级管理人员名单;
(六)为股权并购交易的,应提交股权转让协议或者外国投资者认购境内企业增资的协议、被并购境内企业股东决议、股东大会决议,以及相应资产评估报告;
(七)为资产并购交易的,应提交境内企业的权力机构或产权持有人同意出售资产的决议、资产购买协议(包括拟购买资产的清单、状况)、协议各方情况,以及相应资产评估报告;
(八)关于外国投资者在并购后所享有的表决权对股东会或股东大会、董事会决议、合伙事务执行的影响说明,其他导致境内企业的经营决策、财务、人事、技术等实际控制权转移给外国投资者或其境内外关联企业的情况说明,以及与上述情况相关的协议或文件;
(九)商务部要求的其他文件。
5. Where the application documents for M&A security review submitted by an applicant are complete and meet the statutory requirements, the Ministry of Commerce shall notify the applicant in writing of the acceptance of the application.
Where the M&A transaction included in the application falls under the scope of M&A security review, the Ministry of Commerce shall notify the applicant in writing within 15 working days and, within the following five working days, file a request with the ministerial panel for the security review of M&As of domestic enterprises by foreign investors (hereinafter referred to as "Ministerial Panel") for review.
Within the 15 working days after the applicant is notified of the acceptance of the application, the applicant shall not proceed the M&A transaction, and the local commerce competent authority shall not conduct M&A review. After 15 working days, if the Ministry of Commerce has not sent a notice in writing to the applicant, the applicant may complete the relevant formalities in accordance with the relevant laws and regulations of the State.
Where the M&A transaction included in the application falls under the scope of M&A security review, the Ministry of Commerce shall notify the applicant in writing within 15 working days and, within the following five working days, file a request with the ministerial panel for the security review of M&As of domestic enterprises by foreign investors (hereinafter referred to as "Ministerial Panel") for review.
Within the 15 working days after the applicant is notified of the acceptance of the application, the applicant shall not proceed the M&A transaction, and the local commerce competent authority shall not conduct M&A review. After 15 working days, if the Ministry of Commerce has not sent a notice in writing to the applicant, the applicant may complete the relevant formalities in accordance with the relevant laws and regulations of the State.
五、申请人所提交的并购安全审查申请文件完备且符合法定要求的,商务部应书面通知申请人受理申请。
属于并购安全审查范围的,商务部在15个工作日内书面告知申请人,并在其后5个工作日内提请外国投资者并购境内企业安全审查部际联席会议(以下简称联席会议)进行审查。
自书面通知申请人受理申请之日起的15个工作日内,申请人不得实施并购交易,地方商务主管部门不得进行并购审查。15个工作日后,商务部未书面告知申请人的,申请人可按照国家有关法律法规办理相关手续。
6. The Ministry of Commerce shall, upon the receipt of the written review opinions of the Ministerial Panel, notify an applicant (or parties concerned) and the relevant local commerce competent authority responsible for M&A administration of the same within five working days.
(1) Where the M&A will not have any impact on the national security, the applicant may complete the M&A formalities with the relevant department with the corresponding administration authority in accordance with the Provisions on Foreign Investors' Merger with and Acquisition of Domestic Enterprises, the Certain Provisions on Change of the Equity Interests of the Investors of A Foreign-Invested Enterprise, the Interim Provisions on Investment Made by Foreign-Invested Enterprises in China, and other relevant provisions;
(2) Where the M&A is likely to have impact on the national security, the applicant shall not apply for and proceed the concerned M&A transaction before completing appropriate adjustments to the M&A transaction, modification to the application documents and the formalities for re-examination; or
(3) Where the foreign investor's M&A of a domestic enterprise has already caused, or is likely to cause, serious impact on the national security, according to the review opinions of the Ministerial Panel, the Ministry of Commerce shall, in conjunction with other relevant departments, terminate the concerned transaction, or adopt equity or asset transfer or other effective measures to eliminate the influence of the said M&A on the national security.
(1) Where the M&A will not have any impact on the national security, the applicant may complete the M&A formalities with the relevant department with the corresponding administration authority in accordance with the Provisions on Foreign Investors' Merger with and Acquisition of Domestic Enterprises, the Certain Provisions on Change of the Equity Interests of the Investors of A Foreign-Invested Enterprise, the Interim Provisions on Investment Made by Foreign-Invested Enterprises in China, and other relevant provisions;
(2) Where the M&A is likely to have impact on the national security, the applicant shall not apply for and proceed the concerned M&A transaction before completing appropriate adjustments to the M&A transaction, modification to the application documents and the formalities for re-examination; or
(3) Where the foreign investor's M&A of a domestic enterprise has already caused, or is likely to cause, serious impact on the national security, according to the review opinions of the Ministerial Panel, the Ministry of Commerce shall, in conjunction with other relevant departments, terminate the concerned transaction, or adopt equity or asset transfer or other effective measures to eliminate the influence of the said M&A on the national security.
六、商务部收到联席会议书面审查意见后,在5个工作日内将审查意见书面通知申请人(或当事人),以及负责并购交易管理的地方商务主管部门。
(一)对不影响国家安全的,申请人可按照《关于外国投资者并购境内企业的规定》、《外商投资企业投资者股权变更的若干规定》、《关于外商投资企业境内投资的暂行规定》等有关规定,到具有相应管理权限的相关主管部门办理并购交易手续。
(二)对可能影响国家安全的,申请人未经调整并购交易、修改申请文件并经重新审查,不得申请并实施并购交易。
(三)外国投资者并购境内企业行为对国家安全已经造成或可能造成重大影响的,根据联席会议审查意见,商务部会同有关部门终止当事人的交易,或采取转让相关股权、资产或其他有效措施,以消除该并购行为对国家安全的影响。
7. After the Ministry of Commerce files a request with the Ministerial Panel for review, if the applicant modifies the relevant content of the application documents or cancels the M&A transaction, it shall submit to the Ministry of Commerce the transaction modification plan or M&A cancellation application. The Ministry of Commerce shall submit the same to the Ministerial Panel within five working days upon receipt of the application report and relevant documents.
七、在商务部向联席会议提交审查后,申请人对申报文件有关内容做出修改或撤销并购交易的,应向商务部提交交易修改方案或撤销并购交易申请。商务部在收到申请报告及有关文件后,于5个工作日内提交联席会议。
8. With regard to a foreign investor's M&A of a domestic enterprise, if the relevant departments under the State Council, national industrial associations, enterprises in the same trade, and other enterprises on the upstream and downstream sides believe it necessary to conduct the M&A security review, they may make proposals to the Ministry of Commerce on conducting the M&A security review, and submit a statement on the relevant information (including the basic information of the M&A, the specific influence on the national security, etc.). Where the M&A falls under the scope of security review, the Ministry of Commerce shall, according to the decision of the Ministerial Panel, require the foreign investor to file an application for M&A security review in accordance with these Provisions.
八、外国投资者并购境内企业,国务院有关部门、全国性行业协会、同业企业及上下游企业认为需要进行并购安全审查的,可向商务部提出进行并购安全审查的建议,并提交有关情况的说明(包括并购交易基本情况、对国家安全的具体影响等)。属于并购安全审查范围的,商务部应在5个工作日内将建议提交联席会议。联席会议认为确有必要进行并购安全审查的,商务部根据联席会议决定,要求外国投资者按本规定提交并购安全审查申请。
9. With regard to a foreign investor's application for M&A of a domestic enterprise that was not submitted to the Ministerial Panel for review or the Ministerial Panel believed would not have any impact on the national security after review, if the M&A falls under the security review scope specified in the Notice of the General Office of the State Council on Launching the Security Review System for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors due to adjustment to the M&A transaction, modification of relevant agreement or document, or other factors after the M&A deal has been in progress, the parties concerned shall suspend the transaction, and the foreign investor shall file an application with the Ministry of Commerce for M&A security review.
九、外国投资者并购境内企业申请未被提交联席会议审查,或联席会议审查认为不影响国家安全的,若此后因调整并购交易、修改有关协议或文件等因素,导致该并购交易属于《国务院办公厅关于建立外国投资者并购境内企业安全审查制度的通知》明确的并购安全审查范围的,当事人应当停止交易,由外国投资者按照本规定向商务部提交并购安全审查申请。
10. With regard to matters that are not covered in these Provisions, the Notice of the General Office of the State Council on Launching the Security Review System for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors shall apply.
十、本规定未尽事宜,按照《国务院办公厅关于建立外国投资者并购境内企业安全审查制度的通知》执行。
11. These Provisions shall come into force on March 5, 2011, and remain valid until August 31, 2011.
十一、本规定自2011年3月5日起实施,有效期至2011年8月31日。
