Acquisition of Domestic Enterprises by Foreign Investors Tentative Provisions
外国投资者并购境内企业暂行规定
New rules for the acquisition of domestic firms by foreign investors have recently been issued, and constitute one of the most important legislative developments affecting foreign parties in China this year.
(Promulgated by the Ministry of Foreign Trade and Economic Cooperation, the State Administration of Taxation, the State Administration for Industry and Commerce and the State Administration of Foreign Exchange on March 7 2003 and effective as of April 12 2003.)
(对外贸易经济合作部、国家税务总局、国家工商行政管理总局、国家外汇管理总局于二零零三年三月七日公布，自二零零三年四月十二日起施行。)
Article 1: These Provisions have been formulated pursuant to laws and administrative regulations for foreign-invested enterprises and other related laws and administrative regulations in order to promote and regulate investments in China by foreign investors, introduce advanced foreign technology and management expertise, make more effective use of foreign investment, realize the rational allocation of resources, ensure employment and safeguard fair competition and the economic security of the State.
第1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、行政法规和其他相关法律、行政法规，制定本规定。
Article 2: For the purposes of these Provisions, the phrase "acquisition of domestic enterprises by foreign investors" means a foreign investor's purchase by agreement of the equity of a shareholder in an enterprise other than a foreign-invested enterprise (a Domestic Company) or subscription to a Domestic Company's capital increase, resulting in the conversion of the Domestic Company into a newly established foreign-invested enterprise (an Equity Acquisition); or a foreign investor's establishment of a foreign-invested enterprise and purchase by agreement, through such enterprise, of the assets of a domestic enterprise and operation of such assets, or a foreign investor's purchase by agreement of the assets of a domestic enterprise and use of such assets to invest in and establish a foreign-invested enterprise to operate such assets (an Asset Acquisition).
Article 3: When a foreign investor acquires a domestic enterprise, it shall abide by Chinese laws, administrative regulations and departmental rules and regulations and adhere to the principles of fairness, reasonableness, compensation of equal value and good faith. It may not cause over-concentration to eliminate or restrict competition, disturb the socio-economic order or damage the public interest.
第2条 本规定所称外国投资者并购境内企业，系指外国投资者协议购买境内非外商投资企业（以下称“境内公司”）的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”）。
Article 4: A foreign investor that acquires a domestic enterprise shall satisfy the requirements of Chinese laws, administrative regulations and departmental rules and regulations concerning investor qualifications and industrial policy.
An acquisition may not result in a foreign investor owning all of the equity in an enterprise in an industry in which, pursuant to the Foreign Investment Industrial Guidance Catalogue, a foreign investor is not permitted to operate by way of a wholly foreign-owned enterprise. After the acquisition of an enterprise in an industry in which the Chinese party is required to have a controlling interest or a relative controlling interest, the Chinese party shall continue to have a controlling interest or relative controlling interest in the enterprise. A foreign investor may not acquire an enterprise engaged in an industry closed to foreign investors.
第3条 外国投资者并购境内企业应遵守中国的法律、行政法规和部门规章，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。
Article 5: When a foreign investor acquires a domestic enterprise and establishes a foreign-invested enterprise, it shall obtain the approval of the examination and approval authority in accordance herewith and carry out the procedures for amendment of registration or establishment registration with the registration administration authority. In general the foreign investor's contribution to the registered capital of the foreign-invested enterprise established after the acquisition shall account for not less than 25% thereof. In the event that the foreign investor's capital contribution accounts for less than 25%, examination, approval and registration shall be carried out in accordance with current procedures for the examination, approval and registration of the establishment of foreign-invested enterprises, unless otherwise specified in laws or administrative regulations; in such circumstances, when the examination and approval authority issues the foreign-invested enterprise approval certificate, it shall add the words "foreign investment ratio less than 25%" thereto, and when the registration administration authority issues the foreign-invested enterprise's business licence, it shall add the words "foreign investment ratio less than 25%" thereto.
Article 6: The examination and approval authority specified herein is the Ministry of Foreign Trade and Economic Cooperation of the People's Republic of China (MOFTEC) or the provincial level authority in charge of foreign trade and economic cooperation (the Provincial Level Examination and Approval Authority). The registration administration authority is the State Administration for Industry and Commerce of the People's Republic of China (SAIC) or the local administrations for industry and commerce authorized thereby.
第4条 外国投资者并购境内企业，应符合中国法律、行政法规和部门规章对投资者资格和产业政策的要求。
The Provincial Level Examination and Approval Authorities shall forward to MOFTEC for examination and approval the application documents for foreign-invested enterprises to be established after acquisitions that, pursuant to laws, administrative regulations or departmental rules or regulations, are of a particular type or in a particular industry that requires the examination and approval of MOFTEC. The decision whether or not to grant approval shall be made by MOFTEC, in accordance with the law.
Article 7: If a foreign investor carries out an Equity Acquisition, the foreign-invested enterprise established after the acquisition shall succeed to the claims and debts of the acquired Domestic Company.
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。
If a foreign investor carries out an Asset Acquisition, the domestic enterprise that sold the assets shall bear its existing claims and debts.
The foreign investor, the domestic enterprise to be acquired, creditors and/or other parties may otherwise agree on the disposal of the claims and debts of the domestic enterprise to be acquired, provided that such agreement does not prejudice the interests of a third party or the public. An agreement on the disposal of claims and debts shall be submitted to the examination and approval authority.
第5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，并向登记管理机关办理变更登记或设立登记。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一般不低于25%。外国投资者的出资比例低于25%的，除法律、行政法规另有规定外，应依照现行设立外商投资企业的审批、登记程序进行审批、登记。审批机关在颁发外商投资企业批准证书时加注“外资比例低于25%”的字样。登记管理机关在颁发外商投资企业营业执照时加注“外资比例低于25%”的字样。
A domestic enterprise that sells its assets shall dispatch a notice to its creditors and publish an announcement in a provincial or higher level newspaper distributed nationally within 10 days after the date on which the resolution to sell its assets is passed. Creditors have the right, within 10 days after receipt of the notice or publication of the announcement, to demand that the domestic enterprise selling its assets provide commensurate security.
Article 8: The parties to an acquisition shall determine the transaction price on the basis of the value of the equity to be transferred or the value of the assets to be sold as appraised by an asset appraisal institution. The parties to the acquisition may agree on an asset appraisal institution established in China in accordance with the law. The asset appraisal shall be conducted in accordance with common international appraisal methods.
第6条 本规定中的审批机关为中华人民共和国对外贸易经济合作部(以下简称“外经贸部”)或省级对外贸易经济主管部门(以下简称“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。
If the acquisition of a domestic enterprise by a foreign investor will lead to a change to the equity resulting from an investment of State assets or a transfer of title to State-owned assets, an appraisal shall be conducted in accordance with provisions on the administration of State-owned assets in order to determine the transaction price.
It is forbidden to assign equity or sell assets at a price that is manifestly lower than the appraisal result in order to transfer capital abroad in a covert manner.
并购后所设外商投资企业，根据法律、行政法规和部门规章的规定，属于应由外经贸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外经贸部审批，外经贸部依法决定批准或不批准。
Article 9: When a foreign investor acquires a domestic enterprise and establishes a foreign-invested enterprise, it shall pay the entire amount of the consideration to the shareholder that transferred the equity or the domestic enterprise that sold the assets within three months after the date of issuance of the foreign-invested enterprise's business licence. In special circumstances requiring an extension, and subject to the approval of the examination and approval authority, the foreign investor shall pay at least 60% of the consideration within six months after the date of issuance of the foreign-invested enterprise's business licence and pay the balance in full within one year, and its share of the gains shall be proportional to the capital contribution it has actually paid in.
If, when a foreign investor carries out an Equity Acquisition, the foreign-invested enterprise to be established after the acquisition and conversion is to increase its capital, the investors shall specify the time limits for making the capital contributions in the contract for and the articles of association of the foreign-invested enterprise that is to be established upon the conversion. If the capital contributions are to be paid in full in one payment, they shall make payment in full within six months after the date of issuance of the foreign-invested enterprise's business licence. If the capital contributions are to be paid in instalments, each investor's first instalment may not be less than 15% of the capital contribution to which it has subscribed and the balance shall be paid in full within three months after the date of issuance of the foreign-invested enterprise's business licence.
第7条 外国投资者股权并购的，并购后所设外商投资企业继承被并购境内公司的债权和债务。
When a foreign investor carries out an Asset Acquisition, the investors shall specify the time limits for making the capital contributions in the contract for and the articles of association of the foreign-invested enterprise that is to be established. If a foreign-invested enterprise is to be established and the assets of a domestic enterprise are to be purchased by agreement and operated by such foreign-invested enterprise, then that part of the capital contribution that is equivalent to the consideration payable for the assets shall be paid in by the investors within the time limit for the payment of consideration specified in the first paragraph of this Article. The time limit for payment of the balance of the capital contribution shall be agreed upon in accordance with the method specified in the second paragraph of this Article.
If a foreign investor acquires a domestic enterprise and establishes a foreign-invested enterprise and its capital contribution accounts for less than 25%, and if the investors are to make capital contributions in the form of cash, they shall make payment in full within three months after the date of issuance of the foreign-invested enterprise's business licence; if the investors are to make capital contributions in kind or in the form of industrial property, etc., they shall make payment in full within six months after the date of issuance of the foreign-invested enterprise's business licence.
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。
The method by which consideration is paid shall comply with relevant State laws and administrative regulations. If the foreign investor is to make payment in the form of stock that it has the right to dispose of or in the form of renminbi assets that it lawfully owns, it shall require the approval of the foreign exchange control authority.
Article 10: After a foreign investor has purchased the equity of a shareholder in a Domestic Company by agreement and such Domestic Company has been converted into a foreign-invested enterprise, the registered capital of such foreign-invested enterprise shall be the registered capital of the original Domestic Company and the percentage of the foreign investor's capital contribution shall be the percentage of the original registered capital accounted for by the equity purchased by it. If a Domestic Company acquired by way of an Equity Acquisition also increases its capital, the registered capital of the foreign-invested enterprise established after the acquisition shall be the sum of the original Domestic Company's registered capital and the amount of the capital increase; the foreign investor and the existing investors in the acquired Domestic Company shall determine the percentages of their respective contributions to the foreign-invested enterprise's registered capital on the basis of the appraisal of the assets of the Domestic Company.
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。
After a foreign investor subscribes to the capital increase of a Domestic Company and the Domestic Company is converted into a foreign-invested enterprise, the registered capital of such foreign-invested enterprise shall be the sum of the original Domestic Company's registered capital and the amount of the capital increase. The foreign investor and the existing shareholders of the acquired Domestic Company shall determine the percentages of their respective contributions to the foreign-invested enterprise's registered capital on the basis of the appraisal of the assets of the Domestic Company.
If a Chinese natural person shareholder in a Domestic Company acquired by way of an Equity Acquisition was a shareholder of the original company for not less than one year, he may, subject to approval, continue to be one of the Chinese investors in the foreign-invested enterprise established after the conversion.
出售资产的境内企业应自作出出售资产决议之日起10日内，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。债权人自接到该通知书或自公告发布之日起10日内，有权要求出售资产的境内企业提供相应的担保。
Article 11: When a foreign investor carries out an Equity Acquisition, the upper limit on the total amount of investment of the foreign-invested enterprise established after the acquisition shall be determined in accordance with the following percentages:
(1) if the registered capital is less than US$2.1 million, the total amount of investment may not exceed 70% of the registered capital;
第8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。
(2) if the registered capital is US$2.1 million or more but less than US$5 million, the total amount of investment may not exceed 2 times the registered capital;
(3) if the registered capital is US$5 million or more but less than US$12million, the total amount of investment may not exceed 2.5 times the registered capital;
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，应根据国有资产管理的有关规定进行评估，确定交易价格。
(4) if the registered capital is US$12 million or more, the total amount of investment may not exceed 3 times the registered capital.
Article 12: When a foreign investor carries out an Equity Acquisition, the investors shall submit the documents set forth below to the examination and approval authority whose competence corresponds to the total amount of investment of the foreign-invested enterprise established after the acquisition:
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。
(1) in the case of a domestic limited liability company targeted for acquisition: the unanimous shareholders' resolution in favour of the Equity Acquisition by the foreign investor; in the case of a domestic company limited by shares targeted for acquisition: the resolution of the shareholders' general meeting in favour of the Equity Acquisition by the foreign investor;
(2) an application to convert the Domestic Company targeted for acquisition into a newly established foreign-invested enterprise in accordance with the law;
第9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。
(3) the contract for and the articles of association of the foreign-invested enterprise to be established after the acquisition;
(4) the agreement for the purchase of the equity of the shareholder in the Domestic Company or the subscription to the Domestic Company's capital increase by the foreign investor;
外国投资者股权并购，并购后所设外商投资企业增资的，投资者应在拟变更设立的外商投资企业合同、章程中规定出资期限。规定一次缴清出资的，投资者应自外商投资企业营业执照颁发之日起6个月内缴清；规定分期缴付出资的，投资者第一期出资不得低于各自认缴出资额的15%，并应自外商投资企业营业执照颁发之日起3个月内缴清。
(5) a financial audit report for the most recent fiscal year of the Domestic Company to be acquired;
(6) the investors' identification documents or certificates of commencement of business and certificates of creditworthiness;
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；其余部分的出资应依照本条第二款规定的方式约定缴付期限。
(7) details of the enterprises invested in by the Domestic Company to be acquired;
(8) (duplicates of) the business licences of the Domestic Company to be acquired and the enterprises in which it has invested;
外国投资者并购境内企业设立外商投资企业，外国投资者出资比例低于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。
(9) the arrangements made for the staff and workers of the Domestic Company to be acquired; and
(10) the documents to be submitted pursuant to Articles 7 and 19 hereof.
作为对价的支付手段，应符合国家有关法律、行政法规的规定。外国投资者以其拥有处置权的股票或其合法拥有的人民币资产作为支付手段的，须经外汇管理部门核准。
If the scope or scale of business of, or the acquisition of land use rights by, the foreign-invested enterprise to be established after the acquisition requires permission from other relevant government authorities, the relevant permission documents shall be submitted together with the aforementioned documents.
The scopes of business of the companies originally invested in by the Domestic Company shall comply with the requirements of policies on foreign investment in industry. Those that do not comply shall be adjusted.
第10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。被股权并购境内公司同时增资的，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投资者，在对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。
Article 13: The equity purchase agreement and the agreement for increasing the capital of a Domestic Company specified in Article 12 hereof shall be governed by Chinese law and shall include the following main provisions:
(1) the particulars of the parties to the agreement, including their names and domiciles, the names, positions and nationalities of their legal representatives, etc.;
外国投资者认购境内公司的增资，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。
(2) the share and price of the equity to be purchased or of the capital increase to be subscribed to;
(3) the term and method of performance of the agreement;
被股权并购境内公司中国自然人股东在原公司享有股东地位一年以上的，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。
(4) the rights and obligations of the parties;
(5) liability for breach of contract and resolution of disputes; and
第11条 外国投资者股权并购的，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：
(6) the date and place of execution of the agreement.
Article 14: When a foreign investor carries out an Asset Acquisition, the total amount of investment of the proposed foreign-invested enterprise shall be determined in accordance with the transaction price of the assets purchased and the actual scale of production and operation. The ratio of the proposed foreign-invested enterprise's registered capital to its total amount of investment shall comply with relevant provisions.
（1）注册资本在二百一十万美元以下的，投资总额不得超过注册资本的七分之十；
Article 15: When a foreign investor carries out an Asset Acquisition, the investors shall submit the documents set forth below to the examination and approval authority whose competence corresponds to the total amount of investment and enterprise type of the proposed foreign-invested enterprise and the industry it is to engage in, pursuant to laws, administrative regulations and departmental rules and regulations on the establishment of foreign-invested enterprises:
(1) the resolution in favour of the asset sale passed by the owner of the title to, or the organ of authority of, the domestic enterprise;
（2）注册资本在二百一十万美元以上至五百万美元的，投资总额不得超过注册资本的2倍；
(2) an application for the establishment of a foreign-invested enterprise;
(3) the contract for and the articles of association of the proposed foreign-invested enterprise;
（3）注册资本在五百万美元以上至一千二百万美元的，投资总额不得超过注册资本的2.5倍；
(4) the asset purchase agreement executed by the proposed foreign-invested enterprise and the domestic enterprise or by the foreign investor and the domestic enterprise;
(5) (duplicates of) the articles of association and the business licence of the domestic enterprise to be acquired;
（4）注册资本在一千二百万美元以上的，投资总额不得超过注册资本的3倍。
(6) certification of the fact that the domestic enterprise to be acquired has notified, and published an announcement for, its creditors;
(7) the investors' identification documents or certificates of commencement of business and certificates of creditworthiness;
第12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向具有相应审批权限的审批机关报送下列文件：
(8) the arrangements made for the staff and workers of the domestic enterprise to be acquired; and
(9) the documents to be submitted pursuant to Articles 7 and 19 hereof.
（1）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；
If the purchase and operation of the assets of a domestic enterprise in accordance with the provisions of the preceding paragraph require permission from other relevant government authorities, the relevant permission documents shall be submitted together with the aforementioned documents.
When a foreign investor purchases the assets of domestic enterprise by agreement and uses such assets to invest in and establish a foreign-invested enterprise, it may not carry on business with such assets before the establishment of the foreign-invested enterprise.
（2）被并购境内公司依法变更设立为外商投资企业的申请书；
Article 16: The asset purchase agreement specified in Article 15 hereof shall be governed by Chinese law and shall include the following main provisions:
(1) the natural particulars of the parties to the agreement, including their names and domiciles, the names, positions and nationalities of their legal representatives, etc.
（3）并购后所设外商投资企业的合同、章程；
(2) the list and price of the assets to be purchased;
(3) the term and method of performance of the agreement;
（4）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；
(4) the rights and obligations of the parties;
(5) liability for breach of contract and resolution of disputes; and
（5）被并购境内公司最近财务年度的财务审计报告；
(6) the date and place of execution of the agreement.
Article 17: When a foreign investor acquires a domestic enterprise and establishes a foreign-invested enterprise, the examination and approval authority shall, in accordance with the law, render its decision on whether to grant approval within 30 days after the date of receipt of the entire set of prescribed documents, unless otherwise specified in Article 20 hereof. If it decides to grant its approval, it shall issue a foreign-invested enterprise approval certificate.
（6）投资者的身份证明文件或开业证明、资信证明文件；
When an examination and approval authority grants its approval to the purchase by agreement of the equity of a shareholder in a Domestic Company by a foreign investor, it shall send copies of the relevant approval document to the foreign exchange control authorities of the places where the transferor of the equity and the Domestic Company are located. The foreign exchange control authority of the place where the transferor of the equity is located shall carry out the registration procedures for the receipt of foreign investment-related foreign exchange for the transferor and shall issue a foreign investment-related foreign exchange registration certificate attesting that the foreign investor has paid in the consideration for the Equity Acquisition.
Article 18: When a foreign investor carries out an Asset Acquisition, the investors shall apply for registration of establishment to the registration administration authority within 30 days after the date of receipt of the foreign-invested enterprise approval certificate, and obtain a foreign-invested enterprise business licence from the said administration.
（7）被并购境内公司所投资企业的情况说明；
When a foreign investor carries out an Equity Acquisition, the Domestic Company to be acquired shall apply for amendment of registration to its original registration administration authority in accordance herewith and obtain a foreign-invested enterprise business licence. If its original registration administration authority is not competent to register the change, it shall, within 10 days after the date of receipt of the application documents, transfer the case together with the Domestic Company's registration file to the competent registration authority for handling. When applying for amendment of registration, the Domestic Company to be acquired shall submit the documents set forth below and shall be liable for their truthfulness and validity:
(1) an application for amendment of registration;
（8）被并购境内公司及其所投资企业的营业执照(副本)；
(2) the resolution of the shareholders' (general) meeting of the Domestic Company to be acquired concerning the equity transfer or capital increase passed in accordance with the PRC Company Law and the company's articles of association;
(3) the agreement under which the foreign investor purchases the equity of the shareholder in the Domestic Company or subscribes to the Domestic Company's capital increase;
（9）被并购境内公司职工安置计划；
(4) the company's amended articles of association or the proposed amendments to the original articles of association and the contract for the foreign-invested enterprise that needs to be submitted in accordance with the law;
(5) the foreign-invested enterprise approval certificate;
（10）本规定第7条、第19条要求报送的文件。
(6) the foreign investor's identification document or certificate of commencement of business and certificate of creditworthiness;
(7) the amended list of directors, a document specifying the names and domiciles of the new directors and the instruments of appointment of the new directors; and
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，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。
(8) other relevant documents and certificates specified by the SAIC.
If State-owned equity is being transferred or if a foreign investor is subscribing to the capital increase of a company with State-owned equity, the approval document of the authority in charge of economic relations and trade shall also be submitted.
被并购境内公司原有被投资公司的经营范围应符合有关外商投资产业政策的要求；不符合的，应进行调整。
The investors shall carry out registration procedures with relevant authorities such as those for taxation, customs, land administration and foreign exchange control within 30 days after the date of receipt of the foreign-invested enterprise business licence.
Article 19: When a foreign investor's acquisition of a domestic enterprise involves any of the following circumstances, the investors shall report the same to MOFTEC and the SAIC:
第13条 本规定第12条规定的股权购买协议、境内公司增资协议应适用中国法律，并应包括以下主要内容：
(1) any of the parties to the acquisition had a turnover in the Chinese market during the current year exceeding Rmb1.5 billion;
(2) the foreign investor acquired more than 10 enterprises in related industries in China in one year;
（1）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；
(3) any of the parties to the acquisition already controls not less than 20% of the Chinese market; or
(4) the acquisition will cause the Chinese market share of any of the parties thereto to reach 25%.
（2）购买股权或认购增资的份额和价款；
At the request of a competing domestic enterprise or the relevant functional authority or trade association, if MOFTEC or the SAIC is of the opinion that the acquisition by the foreign investor would involve a very large market share or that other important factors that would affect market competition or the people's livelihood and national economic security, etc. are present, it may nevertheless require the foreign investor to file a report, even if the criteria in the preceding paragraph are not met.
The aforementioned "any of the parties to the acquisition" includes affiliates of the foreign investor.
（3）协议的履行期限、履行方式；
Article 20: If the acquisition of a domestic enterprise by a foreign investor involves any of the circumstances specified in Article 19 hereof and MOFTEC and the SAIC are of the opinion that it may result in over-concentration, thereby harming legitimate competition and damaging the interests of consumers, they shall, within 90 days after the date of receipt of the entire set of prescribed documents, jointly, or after consultations, individually convene the relevant authorities, agencies, enterprises and other materially interested parties for the purpose of conducting hearings and decide, in accordance with the law, whether to grant their approval.
Article 21: If a foreign acquisition is characterized by any of the circumstances set forth below, the acquiring party shall submit the acquisition plan to MOFTEC and the SAIC before it publicly announces such plan or at the same time as it submits the same to the authority in charge in the country where it is located. MOFTEC and the SAIC shall examine whether such acquisition will result in over-concentration in the domestic market, thereby harming legitimate competition and damaging the interests of consumers, and render their decision on whether to give their consent:
（4）协议各方的权利、义务；
(1) any of the parties to the foreign acquisition has assets in China valued at not less than Rmb3 billion;
(2) any of the parties to the foreign acquisition had a turnover in the Chinese market during the current year of not less than Rmb1.5 billion;
（5）违约责任、争议解决；
(3) any of the parties to the foreign acquisition and its affiliates already control not less than 20% of the Chinese market;
(4) the foreign acquisition will cause the Chinese market share of any of the parties to the foreign acquisition and its affiliates to reach 25%; or
（6）协议签署的时间、地点。
(5) the foreign acquisition will cause the number of foreign-invested enterprises in related industries in China in which any of the parties to the foreign acquisition has a direct or indirect equity interest to exceed 15.
Article 22: If an acquisition is characterized by any of the circumstances set forth below, any of the parties to the acquisition may apply to MOFTEC and the SAIC for exemption from examination:
第14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。
(1) it can improve the conditions for fair market competition;
(2) it will restructure a loss-making enterprise and ensure employment;
第15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、行政法规和部门规章的规定，向具有相应审批权限的审批机关报送下列文件：
(3) it will introduce advanced technology, bring in management talent and can enhance the international competitiveness of the enterprise; or
(4) it can improve the environment.
（1）境内企业产权持有人或权力机构同意出售资产的决议；
Article 23: When submitting documents, the investors shall classify the documents in accordance with provisions and include a list of the documents. All of the prescribed documents shall be written in Chinese.
Article 24: These Provisions shall apply to the acquisition of domestic enterprises by investment companies established in China in accordance with the law by foreign investors.
（2）外商投资企业设立申请书；
Equity Acquisitions of foreign-invested enterprises in China by foreign investors shall be governed by current laws and administrative regulations on foreign-invested enterprises and the Changes in the Equity Interests of Shareholders of Foreign-invested Enterprises Several Provisions. Any matters not provided for in such laws and regulations shall be handled with reference to these Provisions.
Article 25: The acquisition by investors from the Hong Kong Special Administrative Region, the Macao Special Administrative Region and Taiwan of enterprises elsewhere in China shall be handled with reference to these Provisions.
（3）拟设立的外商投资企业的合同、章程；
Article 26: These Provisions shall be implemented as of April 12 2003.
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