外文翻譯----在中國(guó)并購(gòu)交易中的風(fēng)險(xiǎn)管理-文庫(kù)吧
2025-04-17 11:40 本頁(yè)面
【正文】 es and permits after the closing of the deal, the chance of surprises increases when different government agencies are involved in the process. Thus, it is critical to determine at an early stage whether the required licenses and permits can be renewed or exchanged for new ones after the target pany converts to a foreigninvested enterprise. As a rule of thumb, the share purchase (or equity interest transfer) agreement would normally time the closing a couple of days after all the necessary approvals, new licenses, and permits have been obtained (assuming that all other closing conditions have been satisfied). In addition, prospective buyers should not be entirely surprised if due diligence indicates that the target pany has been engaging in some of its business activities without proper licenses or permits. In this case, the buyer will need to assess the risk exposure and decide whether it should forgo the transaction, insist that the seller cure the deficiencies prior to closing, or structure the transactions as an asset purchase and apply separately for the required licenses. Navigating Approval Processes China39。s regulatory environment is still rated among the top concerns for . panies, according to a recent survey by the USChina Business Foreign panies investing in China have to deal with the ambiguity of the law and the contradictory views of different government agencies and officials. These conditions frequently result from a bination of everchanging laws and regulations and formal and informal implementation rules. For instance, a government official with approval authority may have his own interpretation of the law and may assure an investor or its counsel that his approach is correct, while officials in another government agency suggested otherwise. Unanticipated hidden rules, which can be created by both governmental and quasigovernmental agencies, can also present challenges. For instance, a property registration center2 may employ local unpublicized procedures that require share purchase agreements or equity transfer agreements to be in a prescribed form. Avoiding these land mines doesn39。t take magic, just hard work and vigilance. Foreign investors must do substantial homework to develop keen judgment on legal pliance and risk assessment in China. Foreign investors not familiar with China should resist the urge to make innocent assumptions and should engage sophisticated counsel to detect and resolve issues as early in the process as possible. Confirming Title to Assets In China, the verification of the ownership of assets can present substantial challenges. Publicly available information and government records, if they exist, may be inadequate or unreliable. For private panies, internal documentation is usually not well kept and organized, and it may be insufficient to show what assets belong to whom. For stateowned enterprises, the situation may not be significantly better, and requests for information often meet with reluctance and the stateowned culture of secrecy. It is important to realize that a target pany39。s assets may have been used in relatedparty transactions. For example, one pany39。s assets might have been pledged for another39。s bank borrowings, and the same assets might have been used multiple times for making (registered) capital contributions in different panies. The buyer also needs to be extremely careful if substantial assets of a target pany were bought from the bankruptcy auction of a stateowned enterprise. If the process was not properly supervised by the court and the case was not effectively closed, the sale could risk being overturned because of a flawed auction process. Finally, prospective buyers must be vigilant and vigorous in title search and verification. Many stateowned enterprises, and sometimes even privately owned panies, may use or claim to own land officially labeled as allocated land, which is provided by the government at nominal cost (or no cost at all) but cannot be sold, transferred, mortgaged, or otherwise disposed of. A marketable title, or granted landuse right, must be obtained before such land can be sold or transferred, which could require the payment of significant land premiums to the land bureau. Assessing Liabilities Contingent and offbalancesheet liabilities may present another serious area of risk for buyers of Chinese panies. Typical areas of potentially significant liability exposure include tax, e
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