关于国有企业利用外商投资进行资产重组的暂行规定
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国经贸外经[1998]576号 Article 1 These Provisions are formulated in accordance with the PRC, Sino-foreign Equity Joint Venture Law, the PRC, Sino-foreign Cooperative Joint Venture Law, the PRC, Wholly Foreign-owned Enterprises Law and other laws and regulations, in order to strengthen the administration of asset reorganization by State-owned enterprises using foreign investment, to thoroughly implement the policy of utilization of foreign investment in a "positive, rational and effective" manner, to safeguard the rights and interests pertaining to State-owned assets and to promote the reform of State-owned enterprises. Article 2 The phrase "asset reorganization by State-owned enterprises using foreign investment" mainly refers to acts whereby State-owned enterprises make use of direct foreign investment in order to merge with other domestic enterprises ("Merger Projects"), supplement their self-owned working capital ("Working Capital Supplementation Projects") or pay their debts ("Debt Payment Projects"). Article 3 When using foreign investment in order to carry out asset restructuring, State-owned enterprises must comply with the following principles: 1. they shall strictly comply with laws and regulations such as the Directing of Foreign Investment Tentative Provisions* and the Foreign Investment Industrial Guidance Catalogue; 2. they shall make proper arrangements for the placement of off-post staff and workers and may not harm the lawful rights and interests of staff and workers; 3. they shall effectively safeguard the rights and interests pertaining to State-owned assets and prevent the loss of State-owned assets; and 4. they shall safeguard the interests of creditors and may not evade bank debts in any way. Article 4 The State Economic and Trade Commission, in conjunction with the relevant authorities, shall be in charge of guiding asset reorganization by State-owned enterprises using foreign investment. Article 5 Project proposals and feasibility studies for asset reorganization by State-owned enterprises using foreign investment shall be examined in accordance with the following limits of authority and procedures: 1. project proposals and feasibility studies for projects with a total investment (which term, in the case of Merger Projects, shall here and hereinafter refer to the total assets of the enterprise following the merger) of not less than US$100 million shall be submitted by the relevant authorities of the State Council or by the economic and trade commission (economic commission, planning and economic commission) of the province, autonomous region, municipality directly under the central government or municipality with independent development plans to the State Economic and Trade Commission; after the State Economic and Trade Commission has examined the project and given its opinion, the documents shall be submitted to the State Council for approval; 2. project proposals and feasibility studies for projects with a total investment of less than US$100 million but not less than US$30 million shall be preliminarily examined by the relevant authorities of the State Council or by the economic and trade commission (economic commission, planning and economic commission) of the province, autonomous region, municipality directly under the central government or municipality with independent development plans, and subsequently be submitted to the State Economic and Trade Commission for examination; 3. project proposals and feasibility studies for projects with a total investment of less than US$30 million shall be examined by the relevant authorities of the State Council or by the economic and trade commission (economic commission, planning and economic commission) of the province, autonomous region, municipality directly under the central government or municipality with independent development plans, and a copy shall be sent to the State Economic and Trade Commission for the record. The said authority may not be delegated. The project proposals and feasibility studies for those of such projects which are of the Restricted Category B shall be handled in accordance with the Directing of Foreign Investment Tentative Provisions. Article 6 The documents by which projects are submitted for approval shall include the following basic contents: 1. the name and address of the project; 2. the name, scope of business, technical ability, state of affairs in respect of the assets and state of affairs in respect of the business operations of the State-owned enterprise; 3. the name, nationality, proof of registration, legal representative certification, proof of creditworthiness, technical capabilities and scope of business of the foreign investor; 4. the contents, development objectives and orientation of the project; 5. the form and scale of the foreign investment to be used, the types of products, the production capacity and the sales targets; 6. the total investment, registered capital, ratio of each investing party's investment and source of funds; 7. the term of operation; 8. an analysis of economic and social benefits; 9. if the project cannot balance its own foreign exchange, the comments of the State's exchange control authority as to its approval of the project shall be attached; and 10. the opinion of the department in charge of the enterprise (investing entity). Article 7 In addition, the following relevant documents shall be provided, depending on the type of project: (1) Merger Projects: 1) general information concerning the parties to the merger (including their scope of business, their scale of production, the level of advancement of their equipment and technology, their financial position, etc.); 2) the balance sheets and profit and loss statements for the last three years of the parties to the merger, and a property list of the enterprise to be absorbed; 3) the merger plan (including the type of merger, the method of asset and debt restructuring, and the asset and liability situation, scope of business, scale of production and product market share of the enterprise in existence after the merger, etc.); 4) the form of and time limit for the foreign business entity's capital contribution; 5) the planned arrangements for settlement of the staff and workers of the enterprise to be absorbed; 6) the opinion(s) of the creditor bank(s) of the enterprise to be absorbed; 7) the opinion of the Coordination Committee for Reemployment of Staff and Workers of Merged or Bankrupt Enterprises of the province (autonomous region, municipality directly under the central government) in which the enterprise to survive the merger or the enterprise to be absorbed is located; if the parties to the merger have already been restructured into companies, the resolution by which their boards of directors approved the merger shall be provided as well; 8) the letter of intent concerning the merger signed by the parties to the merger; and 9) an appraisal report of State-owned assets (including the State-owned assets in the enterprise to be absorbed) confirmed by the administration authority for State-owned assets at the same level. If the document provided is a project proposal, it shall only be required to cover Items (a), (c), (f) and (g). (2) Working Capital Supplementation Projects: 1) general information concerning the enterprise (including the scope of business, scale of production, state of affairs in respect of production and sales, production capacity utilization rate, working capital turnover and assets/liabilities ratio); 2) the enterprise's balance sheets and profit and loss statements for the last three years; 3) details of the enterprise's self-owned working capital; and the enterprise's working capital demand and the basis for the estimation thereof; 4) the form of and time limit for the foreign business entity's capital contribution; 5) the opinion of the main bank with which the enterprise has opened an account; and 6) an appraisal report of State-owned assets confirmed by the administration authority for State-owned assets at the same level. If the document provided is a project proposal, it shall only be required to cover Items (a), (c) and (e). (3) Debt Payment Projects 1) general information concerning the enterprise (including the scope of business, scale of production, the level of advancement of the equipment and technology, return on total assets, return on net assets, investment payback period, loan repayment term, etc.); 2) the debt situation of the enterprise (including the terms, currencies, structures, interest rates and repayment methods of the loans, the main creditors, details of defaults, etc.); 3) the enterprise's balance sheets and profit and loss statements for the last three years; 4) the debt repayment plan (including debt settlement agreements reached with the creditors); and 5) an appraisal report of State-owned assets confirmed by the administration authority for State-owned assets at the same level. If the document provided is a project proposal, it shall only be required to cover Items (a) and (b). Article 8 Merger Projects where State-owned assets still account for a controlling interest following the establishment of the joint venture and which satisfy the conditions shall be eligible for treatment under relevant policies in accordance with the State Council, Related Problems Concerning Trial Merger of Bankrupt State-owned Enterprises and Job Replacement for Staff and Personnel Thereof in Various Cities Supplementary Circular (document Guo Fa [1997] No. 10). Article 9 Where State-owned enterprises use foreign investment in order to carry out asset reorganization, the feasibility study shall require the foreign investor to make its capital contribution in full within three months after the date of issuance of the business licence. If the contribution needs to be postponed due to extraordinary circumstances, then, subject to examination and approval, at least 60% of the total contribution shall be made within six months, and the contribution shall be made in full within one year, after the date of issuance of the business licence. Until it has made its capital contribution in full, the foreign investor may enjoy rights and interests only in proportion to the amount of the capital contribution actually made. Article 10 The approved feasibility study shall be the fundamental basis for formulation of the contract (articles of association). If the event of any inconsistency between the contract (articles of association) and the approved feasibility study, the opinion of the authority which examined the feasibility study shall be obtained. Article 11 These Provisions shall be applicable to asset reorganization by State-owned enterprises using investment from the Hong Kong Special Administrative Region or from Macao or Taiwan. Asset reorganization by non-State-owned enterprises using foreign investment shall be handled by reference to these Provisions. Article 12 The State Economic and Trade Commission shall be in charge of interpreting these Provisions. These Provisions shall be implemented as of the date of promulgation. |
