关于外资并购本市国有企业的若干意见 Merger and Acquisition of State-owned Enterprises in the Municipality by Foreign Investors Several Opinions
（Issued by the Shanghai State-owned Assets Administration Office， the Shanghai Foreign Investment Commission and the Shanghai Administration for Industry and Commerce on 4 April 2002， and effective as of the date of issue.）
颁布日期：20020404 实施日期：20020404 颁布单位：上海市国有资产管理办公室、 上海市外国投资工作委员会、 上海市工商行政管理局
To all authorized State-owned asset operating companies， State-owned assets administration offices and foreign trade and economic cooperation commissions of all districts and counties， all branches of the Municipal Administration for Industry and Commerce， the Municipal Office for Administration of Equity Transactions， Shanghai Assets and Equity Exchange， Shanghai Technology Equity Exchange and all relevant work units：
These Opinions have been formulated in accordance with the relevant State laws and regulations and in the light of the actual circumstances of the municipality in order to further expand the scope of absorption of foreign investment in the municipality， to utilize foreign funds to promote the reorganization and restructuring of State-owned enterprises， and to facilitate the independent or joint merger and acquisition of State-owned enterprises in the municipality by foreign investors.
1. For the purposes of these Opinions， the term “foreign investors” （Foreign Investor（s）） includes foreign companies， enterprises， other economic organizations or individuals， foreign-funded companies with an investment nature established in China upon approval of the Chinese government as well as foreign-invested enterprises that may engage in investment.
2. An enterprise established as a result of a wholly merger and acquisition of a State-owned enterprise by a Foreign Investor shall be a foreign-invested business enterprise. An enterprise re-established with a change in registration as a result of a partial merger and acquisition by a Foreign Investor or merger and acquisition carried out jointly by Chinese and foreign investors （including companies with an investment nature established by foreign investors in China）， in which the actual capital contribution of the foreign party exceeds 25% （inclusive） of the registered capital， shall be a Sino-foreign equity or cooperative joint venture.
3. Foreign Investors are encouraged to carry out the following merger and acquisition activities within the municipality：
（1） Merger and acquisition that introduce new products， new technology and new processes and that promote the adjustment of industrial and product structure.
（2） Merger and acquisition that fall within the scope of new agricultural technology， integrated agricultural development， and energy， transportation and important raw materials.
（3） Merger and acquisition that adopt high and new technology and explore new industrial fields.
（4） Merger and acquisition that fall within the scope of integrated utilization of resources and regenerated resources， and prevention of environmental pollution.
（5） Merger and acquisition that facilitate the upgrading of technology of products and the opening up of international market.
（6） Merger and acquisition that facilitate the enhancement of the management level of enterprises and the economic benefit of enterprises using the existing assets in stock.
（7） Merger and acquisition that facilitate the restructuring and reorganization of a State-owned enterprise.
4. Foreign Investors may select merger and acquisition projects from the encouraged and permitted projects in the Foreign Investment Industrial Guidance Catalogue published by the State and the list of projects in which merger and acquisition of State-owned enterprises by Foreign Investors in the municipality is encouraged.
5. A comprehensive service window for merger and acquisition by Foreign Investors shall be set up at the Shanghai Assets and Equity Exchange and the Shanghai Technology Equity Exchange （hereafter collectively， the “Equity Exchanges”） to provide parties to merger and acquisition services such as merger and acquisition information， application for merger and acquisition， and transaction appraisal.
6. The basic procedures for merger and acquisition of State-owned enterprises in the municipality by Foreign Investors are as follows：
（1） The merging and acquiring party or the party being merged and acquired shall obtain a merger and acquisition application form at the comprehensive service window for merger and acquisition by Foreign Investors， and the comprehensive service window for merger and acquisition by Foreign Investors shall carry out record filing thereof collectively with the Municipal Foreign Investment Commission.
（2） After an asset appraisal has been carried out by a qualified appraisal institution and verification and approval has been conducted in accordance with the relevant provisions， the transaction shall be carried out at the Equity Exchanges in accordance with the relevant policies and regulations of the municipality.
（3） The foreign investment commission shall carry out simplified examination and approval in accordance with the laws， regulations and rules concerning foreign-invested enterprises and the contract for equity transaction.
（4） The enterprise shall complete the enterprise registration or change in registration procedures with the Municipal Administration for Industry and Commerce in accordance with the relevant provisions.
7. Where the actual capital contribution of the foreign party in an enterprise that is partially merged and acquired by a Foreign Investor or a Sino-foreign equity joint company with an investment nature following the merger and acquisition exceeds 25% （inclusive） of the registered capital of the enterprise， such enterprise shall be entitled to the treatment for Sino-foreign equity joint ventures.
Where the actual capital contribution of the foreign party is less than 25% of the registered capital， the enterprise shall be treated in accordance with the Treatment of Enterprises in Which the Proportion of Capital Contribution of Foreign Investors Is Less Than 25% Procedures issued by the Municipal Foreign Investment Commission and the Municipal Administration for Industry and Commerce.
8. Unreal assets that are involved in the course of merger and acquisition of State-owned enterprises in the municipality by Foreign Investors shall be verified and cancelled in accordance with the Shanghai Municipality， Verification and Cancellation of Unreal Assets of State-owned Enterprises Several Provisions.
9. If a Foreign Investor merges with or acquires a State-owned enterprise in the municipality and arranges resettlement for its staff and workers， the compensation fees for resettlement of the redundant staff and workers may be deducted from the transaction price. The specific standards for deduction shall be determined in accordance with the relevant provisions of the State and the municipality.
10. In the course of merger and acquisition of State-owned enterprises in the municipality by Foreign Investors， the economic compensation required to be paid for the termination of labour relationship and contract with the staff and workers of the enterprise being merged and acquired， consultation for termination of contract， termination of contract by the workers at any time， layoff of the staff of the enterprise and termination of contract without fault shall be paid in accordance with the relevant provisions of the municipality.
11. In an equity transaction carried out in connection with the merger and acquisition of a State-owned enterprise in the municipality by a Foreign Investor， the price of the merger and acquisition of the State-owned enterprise shall be based on the asset appraisal result that has been verified and approved. If the actual transaction price is higher or lower than the asset appraisal result by more than 10%， the State-owned enterprise shall give a written explanation on the reasons for the difference to the authorized State-owned asset operating company or enterprise group， and shall at the same time carry out record filing thereof with the municipal authority for administration of State-owned assets.
12. Merger and acquisition of State-owned enterprises in the municipality by companies， enterprises and other economic organizations or individuals from Hong Kong， Macao or Taiwan region shall， mutatis mutandis， be handled according to these Procedures.
13. Merger and acquisition of collective enterprises or enterprises of other economic nature in the municipality by the Foreign Investors shall， mutatis mutandis， be handled according to these Procedures.
14. The Municipal State-owned Assets Administration Office， Municipal Foreign Investment Commission and Municipal Administration for Industry and Commerce shall be in charge of interpreting these Procedures.
15. These Procedures shall be implemented as of the date of issue.
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