外国投资者在中国的并购类型财务管理外文翻译、中英文翻译、外文翻译

1、外国投资者在中国的并购类型财务管理外文翻译、中英文翻译、外文翻译 附录Types of Mergers and Acquisitions of Domestic Enterprisesby Foreign Investors in ChinaAccording to Interim Provisions on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors,there are two types of mergers and acquisitions of domestic enterprises by

2、 foreign investors.One is Equity Merger and Acquisition;the other is Asset Merger and Acquisition.Both of them will be discussed below.The Concept of Equity Merger and AcquisitionWhat is Equity Merger and Acquisition?Mergers and acquisitions of a domestic enterprise by foreign investors shall mean t

3、hat foreign investors,by agreement,purchase equity interest from shareholders of state-owned enterprises with no foreign investment or subscribe to the increase in the registered capital of the tate-owned enterprise with the result that such state-owned enterprise changes into a foreign investment e

4、nterprise,which is called Equity Merger and Acquisition.It is very simple in practice and is easy to determine the price of the equity.There are two kinds of Equity Merger and Acquisition,too.One is that the foreign investors agree to buy the equity interest of state-owned enterprises directly from

5、the stockholders.which is the sale of the equity between the stockholders and the foreign investors:The other is that the foreign investors agree to buy the increase in the registered capital of state-owned enterprises,which is the sale of the stock between foreign investors and the target enterpris

6、es.There are some features in Equity Merger and Acquisition.Firstly,the target enterprise of Equity Merger and Acquisition is a company-system enterprise.So-called company-system enterprises are that enterprises are set up in accordance with the company law or reformed enterprises.The target enterpr

7、ises of Asset Merger and Acquisition are company-system enterprises as well as non company-system enterprises,but the target enterprises of Equity Merger and Acquisition are only company-system enterprises,by the company law.State-owed enterprises,collective enterprises,contractual enterprises,ventu

8、res exclusively with ones own investment,which have not been reformed according to the company law,are not target enterprises.But after reformed they can be the target enterprises,too.Secondly,only the enterprises with foreign investment can be the target enterprises of Equity Merger and Acquisition

9、.According to the laws of China,the enterprises with foreign investment include Sino-foreign joint ventures,Sink-foreign cooperative joint ventures and wholly foreign owned enterprises,which are called three-capital enterprises in China.Only non three-capital enterprises can be merged or acquired by

10、 foreign investors because the Chinese government allows the foreign investors merge and acquire the state-owned enterprises in order to attract foreign investment,foreign advanced technology and experience of management.The three-capital enterprises are set up by both foreign investors and Chinese

11、investors.It is one of the two methods to introduce foreign capita.If the Chinese government allows the foreign investors to merge and acquire the three-capital enterprises,the government cannot attain its purpose of attracting foreign capital.As the matter of fact .mergers and acquisitions of state

12、-owned enterprises by foreign investors and three-capital enterprises by foreign investors and Chinese investors are the two methods for China to attract foreign capital.The former is called mergers and acquisitions;the later is called green investment,Both are foreign direct investment.Finally,the

13、legal status of the target enterprise is not changed because of equity merger and acquisition.No matter how many shares of the target enterprise the foreign investors purchase,the legal status of target enterprises should not be changed.The target enterprises can be foreign investors'soncompany

14、or controlled company or the company with little foreign investorsinvestment.The foreign investors and the target enterprises have their own legal status separately.Essentially,it is the management model to combine the identity of management subjects with independent legal status.Under the unitary m

15、anagement by both the target enterprises and foreign investors,they bear their own management risks independently Interim Provisions on Mergers and Acquisitions of Domestic Enterprises by Foreign investors has not said definitely that equity merger and acquisition cannot change the legal status of t

16、he target enterprises,which have been changed into foreign investment enterprises after equity merger and acquisition.The foreign investment enterprise will carry on the liabilities and rights of the state-owned enterprises.That is to say,that newly established foreign investment enterprises inherit

17、 the liabilities and rights from the target enterprise directly,which illustrates completely that the laws and regulations of China recognize that equity merger and acquisition will not change the legal status of the target enterprise.The Main Contents of Equity Merger and Acquisition AgreementEquit

18、y merger and acquisition agreement is an agreement by which the relationship of civil rights and duties is established between foreign investors and state-owned enterprises or shareholders of state-owned enterprises in the purchase of equity interest from shareholders of state-owned enterprises with

19、 no foreign investment or the increase in the registered capital of the state-owned enterprise.Not all equity merger and acquisition agreement terms are of equal significance;some are more important than the others.The main contents of the equity merger and acquisition agreement are the necessary co

20、ntents of it,which go to the root or the heart of the agreement,without which the agreement cannot be carried out successfully and the disputes arising between foreign investors and the target enterprises or the shareholders cannot be settled easily by the agreement.In order to reduce the disputes o

21、r make the disputes settled successfully by the agreement or contract,laws,regulations and provisions provide the main contents of an agreement or a contract.Article 12 of Interim Provisions on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors provides that the main contents of e

22、quity merger and acquisition agreement include:information regarding each of the parties to the agreement,including its full name,address,and the name,position and citizenship of its legal representative,etc.;proportions and the price of the equity interest to be acquired or the increased capital to

23、 be subscribed;term and methods of performance of the agreement;rights and obligations of the parties to the agreement;liabilities for breach of the agreement and settlement of dispute;and the date and the place of the execution of the agreement.We will discuss them separately below.Information rega

24、rding each of the parties to the agreement,including its full name,address and the name,position and citizenship of its legal representative,etc.This article reflects the fundamental information of the parties to the equity merger and acquisition agreement.It is also a necessary clause of the equity

25、 merger and acquisition agreement.Without such a clause it is difficult to determine the parties to the equity merger and acquisition agreement or it is not easy to determine who will have the rights and duties in the equity merger and acquisition agreement.The equity merger and acquisition agreemen

26、t cannot be examined and approved by the government if there is no such a clause.Someone argues that the clause is the main article of the agreement,but not all the contents of the clause are necessary.They think that the address and citizenship are not main contents of the clause.If there are so su

27、ch contents,the agreement may come into effect,too.The author has a different idea.If there is no address and citizenship in the agreement,it is unable to determine whether the state-owned enterprises are merged and acquired by foreign investors or not.The state examination and approval authorities

28、are unable to examine and approve the equity merger and acquisition agreement.Proportions and the price of the equity interest to be acquired or the increased capital to be subscribed.In traditional contract theory,price and payment are main contents of a contract.The price is in consideration of ge

29、tting the ownership of goods and the payment is in consideration of service.If there is no such a clause in a contract,the contract will be declared null and void,however,which is not stipulated by the new Contact Law of China.If the parties have not arranged the clause of price and payment in a con

30、tract,it is not inevitable to lead to invalidation of the contract.When it happens,the parties may make an agreement about the price and payment between them first.If not,they can fix the price and payment under the contract laws,regulations and provisions.It is not necessary to bring about non-form

31、ation of the contract or invalidation of the contract.But the equity merger and acquisition of state-owned enterprises agreement is different from the general commercial contract.Proportions and the price of the equity interest to be acquired or the increased capital to be subscribed are the main co

32、ntents of equity merger and acquisition of state-owned enterprises agreement.Without it the equity merger and acquisition agreement will become invalid,because it is the duty for the state examination and approval authorities to examine the price and proportions in equity merger and acquisition of s

33、tate-owned enterprises by foreign investors,to make sure that equity merger and acquisition by foreign investors is in conformity with the industry policies on utilization of foreign capital and to prevent the state property and assets from getting lost.If there is not a price and proportion clause

34、in the agreement,the state examination and approval authorities are unable to examine and approve the equity merger and acquisition by foreign investors,so that the clause of proportions and price of the equity interest to be acquired or the increased capital to be subscribed is not only matter betw

35、een foreign investors and state-owned enterprises or shareholders of state-owned enterprises,but also it is an important matter whether the state examination and approval authorities approve it or not.Term and methods of performance of the agreement.Term and methods of performance of the contract ha

36、ve to do with the term and methods to fulfill the partiesobligations.It is one of the factors to determine whether breach of the contract takes place.The performance of a contract may be within a fixed time or a period of time or the contract is performed immediately.If the parties haven't appoi

37、nted the term of performance,the contract can be performed in accordance with laws,regulations and provisions or business usage or good faith.But the equity merger and acquisition agreement is different. Interim Provisions on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors prov

38、ides the strict time for foreign investors to perform their duty of payment.Article 9 of the interim provisions provides:In case of a merger or acquisition of a domestic enterprise by foreign investors to set up a foreign investment enterprise,the foreign investors shall,within 3 months from the dat

39、e of issuance of the foreign investment enterprise business license,pay the full consideration to the shareholder transferring equity interest or to the domestic enterprise selling assets.If the above time limit needs to be extended under special circumstances,the foreign investors shall,upon the ap

40、proval by the examination and approval authority,pay 60% or more of the total consideration within 6 months and full considerations within 1 year from the date of issuance of the foreign investment enterprise business license,and shall distribute the proceeds in proportion to the actual capital cont

41、ribution.When the foreign investors conduct Equity Merger and Acquisition and the foreign investment enterprise established after such mergers and acquisitions increases its registered capital,the foreign investors shall set forth a time schedule for capital contribution in the contract and the arti

42、cles of association of the foreign investment enterprise,If it is set forth that the capital contribution shall be paid up in one lump sum ,the foreign investors shall make the contribution within 6 months from the date of issuance of the foreign investment enterp rise business license;or if it is s

43、et forth that the capital contribution shall be paid by installments.The foreign investors,first installment shall not be less than 15% of their respective capital subscription and shall be made within 3 months from the date of issuance of the foreign investment enterprise business license .When for

44、eign investors establish a foreign investment enterprise through merger or acquisition of a state-owned enterprise,and the proportion of the foreign investors capital contribution is 1ess than 25% of the registered capital,if the foreign investors pay their capital contribution in cash, the full con

45、tribution shall be made within 3 months from the date of issuance of the foreign investment enterprise business license;If the investors pay their capital contribution in kind or in industrial property rights and so on, full contribution shall be made within 6 months from the date of issuance of the

46、 foreign investment enterprise business license.The instruments of payment of any consideration shall be in compliance with the provisions of the relevant state laws and administrative regulations.When a foreign investor intends to use any stock he has the right to dispose of or any Renminbi assets

47、he legitimately possesses as the instrument of payment,such payment shall be subject to the approval of the foreign exchange administration authority. From:Types of Mergers and Acquisitions of Domestic Enterprisesby Foreign Investors in China 外国投资者在中国的并购类型一、股权并购 （一）股权并购的概念股权并购系指并购方通过协议购买目标企业的股权或认购目标

48、企业增资方式，成为目标企业股东，进而达到参与、控制目标企业的目的，使该境内公司变更设立为外商投资企业或者，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首先，股权并购的目标企业是一个公司制企业。所谓公司系统企业，企业的设立按照公司法或改制企业。资产并购的目标企业是公司系统企业以及非公司系统的企业，但股权并购的目标企业是唯一一家系统企业，由公司的法律国家所欠与自己的投资企业集体企业合营企业合资企业专门等等，这些改革没有按照公司法规定，不达标企业。但经过改革后，他们也可以是目标企业。 其次，只有外商投资企业可以是股权并购的目标企业。根据中国的法律，外商投资企业包括中外合资企业，中外合作经营企业和外商独资企业，在中国被称为三资企业。只有非三资企业可以通过合并或收购外国投资者因为中文政府允许外国投资者并购和收购，以国有企业吸引外资，引进国外先进技术和经验的管理。三资企业都设立外国投资者和中国投资者。它是引进外国资本两种方法之一。如果中方政府允许外国投资者兼并，收购三资企业，政府不能达到其吸引外资的目的。由于对事实的问题。兼并和收购外国投资者和三资企业，国有企业的外国投资者和中国投资者对中国的两种方法，以吸引外资。前者称为并购，后者是绿色投资，无论外国直接投资。 最后，标的企业的法