Article 16 The asset purchase agreement set forth in Article 15 shall be governed by the Chinese law and shall contain the following main contents:
(1) information regarding each of the parties to the agreement, including its name and address, and the name, position and citizenship of its legal representative, etc.;
(2) list and the price of the assets to be purchased;
(3) term and methods of performance of the agreement;
(4) rights and obligations of the parties to the agreement;
(5) liabilities for breach of the agreement and settlement of dispute; and
(6) the date and the place of the execution of the agreement.
Article 17 Except as otherwise provided for in Article 20, where foreign investors establish a foreign investment enterprise through merger and acquisition of a domestic enterprise, the exa m ination and approval authority shall, within 30 days upon its receipt of all the documents required to be submitted, decide according to law whether to approve the application for the establishment. Upon such approval, the examination and approval authority shall issue the foreign investment enterprise approval certificate.
If the examination and approval authority decides to approve foreign investors' acquisition of equity interest of a Domestic Company from its shareholders, the examination and approval authority shall concurrently copy the relevant approval documents to the local foreign exchange administration authority of the transferor and of the Domestic Company respectively. The foreign exchange administration authority in the locality of the transferor shall complete the foreign capital foreign exchange registration procedures for the transferor's receipt of foreign exchange and shall issue the foreign capital foreign exchange registration certificate certifying the payment of the consideration for the above acquisition by the foreign investors.
Article 18 In the case of an Asset Merger and Acquisition by foreign investors, the investors shall, within 30 days of its receipt of the foreign investment enterprise approval certificate for, apply to the registration authority for the establishment registration and obtain the foreign investment enterprise business license.
In the case of an Equity Merger and Acquisition by foreign investors, the acquired Domestic Company shall apply to its original registration and administration authority for the change of registration and obtain the foreign investment enterprise business license in accordance with the Provisions. If the original registration and administration authority has no jurisdiction of registration and administration, it shall, within 10 days upon its receipt of the application documents, deliver such documents to the registration and administration authority with such jurisdiction, accompanied by the registration files of the Domestic Company. The acquired Domestic Company shall submit and be responsible for the authenticity and effectiveness of the following documents at the time of its application for the change of registration:
(1) the application for the change of registration;
(2) the resolution adopted by the shareholders' meeting of the acquired Domestic Company in accordance with the Company Law of the PRC and its articles of association, approving the transfer of equity interest or the increased capital;
(3) the agreement for the purchase of the shareholders' equity interest or subscription for the increased capital of the Domestic Company by the foreign investors;
(4) amended articles of association of the Domestic Company or any amendment to the original articles of association and the contract of the foreign investment enterprise to be submitted as required by law;
(5) the foreign investment enterprise approval certificate;
(6) identification documents or incorporation certification and creditworthiness certification of the foreign investors;
(7) the amended list of directors, the document specifying the names and addresses of new directors and the documents of appointment of new directors; and
(8) other relevant documents and certificates required by SAIC.
In case of the transfer of state-owned equity interest and in case of foreign investors' subscription to any increased capital of a company with state-owned equity interest, the approval documents of the authority in charge of economic and trade administration shall also be submitted. Investors shall, within 30 days upon the receipt of the foreign investment enterprise 3usiness license, handle the necessary registration formalities with authorities for , ta xation, customs, land administration and foreign exchange administration, etc..
Article 19 In case of any of the following occurrences in connection with the merger or acquisition of a domestic enterprise by foreign investors, the investors shall , s ubmit notification to MOFTEC and SAIC: (1) the revenue of a party to the merger or acquisition in the domestic market for the current year exceeds RMB1.5 billion;
(2) the foreign investors have merged with or acquired more than 10 domestic enterprises in aggregate engaging in the related businesses within one year;
(3) the market share of a party to the merger or acquisition in the domestic market has reached 20%; or
(4) the market share of a party to the merger or acquisition in the domestic market will reach 25% as a result of the merger or acquisition.
Even without the above occurrences, MOFTEC or SAIC may still require the foreign investors to submit notification upon the request by any competing domestic enterprise, relevant functional department or industrial association, if MOFTEC or SAIC finds that the merger or acquisition will involve a huge market share, or if there is any other material aspect of the merger or acquisition which might severely affect market competition, national economy or people's livelihood and national economic security.
The above-mentioned "a party to a merger or acquisition" shall include any affiliated enterprise of foreign investors. |
