1. Initially determine the merging party and the merged enterprise.
The merging party and the merged enterprise are generally initially determined through the property rights market or direct negotiations.
2. Asset verification and financial audit.
Enterprise merger must be decided by the unit directly holding state-owned property rights to hire a qualified accounting firm to conduct financial audit. If an enterprise is transformed into a non-state-owned enterprise through merger, the legal representative of the enterprise shall also conduct an outgoing audit. The merged enterprise must provide relevant financial and accounting materials and documents to accounting firms or government audit departments in accordance with relevant regulations.
3. Asset appraisal.
If an enterprise reorganizes by merger, it must evaluate its assets in accordance with the provisions of the Measures for the Administration of State-owned Assets Evaluation. The scope of asset appraisal includes fixed assets, current assets, intangible assets (including intellectual property rights and goodwill, but excluding state-owned land use rights regarded as intangible assets) and other assets. If a non-state-owned investor merges an enterprise, the unit directly holding state-owned property rights decides to hire a qualified asset appraisal firm to conduct asset appraisal.
4. Determine the floor price of property rights.
The merged enterprise shall reasonably determine the selling reserve price on the basis of the evaluation value confirmed by the relevant competent department. The transaction price can be determined by bidding. The transaction price shall not be lower than the reserve price (but the transaction price is allowed to fluctuate to a certain extent on the basis of the reserve price. If the floating price is lower than 90% of the assessed price, it must be approved by the state-owned assets management department at the same level).
5. Sign the merger agreement and manage the transfer price.
After the transaction price is determined, the owners of both parties to the merger shall sign a merger agreement. The merger of enterprises owned by the whole people shall be examined and approved by the state-owned assets management departments at all levels. Where the state-owned assets management department has not been established, it shall be decided by the financial department in conjunction with the competent department of the enterprise at the same level. In order to make the merger work smoothly, we should solicit the opinions of the employees of the merged enterprise and do a good job in their ideological work. The employee's disagreement with the merger does not affect the effectiveness of the merger agreement. The merger of collectively-owned enterprises must be discussed and approved by the workers' congress and reported to the competent department for the record. If a collectively-owned enterprise is merged without the approval of the workers' congress, the merger agreement will not take effect. If the merger agreement is invalid because it is not passed, it shall be handled in accordance with the provisions of the contract law on liability for fault in contracting, and the merged enterprise may also claim compensation for losses.
Enterprises that implement the contract or lease system shall go through the formalities of terminating the contract in accordance with the relevant provisions when they are determined to be merged. Before the termination of the contract, the enterprise shall not be merged.
In case of enterprise merger, in accordance with the provisions of relevant laws and regulations, the merging party shall pay the price in one lump sum; If it is really difficult to pay the price in one lump sum, the price can be paid in installments in accordance with the relevant provisions after consultation between the two parties and approval by the unit that approved the restructuring of state-owned enterprises and the transfer of state-owned property rights. If the price is paid by installments, the down payment shall not be less than 30% of the price, and the remaining price shall be guaranteed by the transferee according to law and paid within one year from the date of voluntary payment. The unpaid amount shall be paid by the buyer to the seller with reference to the bank loan interest rate. The proceeds from the transfer of state-owned property rights should first be used to pay the economic compensation for the employees who terminate the labor contract and the social insurance premiums paid to the employees managed by social security institutions, as well as to repay the debts owed to employees and the social insurance premiums owed by enterprises to employees. Residual income shall be handled in accordance with relevant regulations.
In the process of restructuring, it is necessary to obtain the consent of creditor financial institutions, preserve financial creditor's rights and implement financial debts according to law, so as to restructure state-owned enterprises. Enterprises with outstanding financial debts shall not be restructured.
The enterprise merger agreement shall take effect as of the date of signature and seal by all parties. If it needs to be approved by the competent government department, the merger agreement shall take effect as of the date of approval; Without approval, the enterprise merger agreement will not take effect. However, in accordance with the provisions of the Contract Law and its related judicial interpretations, the merger agreement is valid if the parties go through the approval procedures before the end of the debate in the court of first instance.
6. Go through the legal procedures of liquidation and property right transfer.
The income from the property right transfer of the merged enterprise belongs to the owner of the enterprise property right. If the merged enterprise is owned by the whole people, its net income shall be turned over to the state treasury by the state-owned assets management department unless otherwise stipulated by the state. If the merged enterprise belongs to collective ownership, its net income belongs to different owners according to the ownership of property rights.
After an enterprise is merged, it shall go through the registration of property right change (including the registration of property right change or cancellation of registration by the merged enterprise in the state-owned assets management department) and the registration of tax change in accordance with the provisions of laws and regulations; At the same time, the land management department should handle the certificate of land use right ownership for the merged enterprise. If the land of the merged enterprise belongs to the land allocated by the state, the merged enterprise shall, in accordance with the provisions of the Real Estate Law, re-sign a contract for the assignment of the right to use state-owned land with the people's government at or above the county level.
After the merger of enterprises, if it is a business merger, the merged enterprise shall cancel the legal person registration of the merged enterprise in time. If the cancellation of registration is not completed and the agreement has been fulfilled, it will not affect the effectiveness of the merger agreement and the commitment of the merged enterprise to the creditor's rights and debts of the merged enterprise. If it is a holding merger, the newly established enterprise shall register the change of legal person.
7. Commitment of rights and obligations and placement of employees.
Due to the merger, the merged enterprise inherits the creditor's rights and debts of the merged enterprise.
For the holding merger, because the legal person qualification of the merged enterprise has not been eliminated, the debts of the controlled enterprise are still borne by the merged enterprise. Of course, unless the holding company withdraws its funds and evades its debts, the controlled company will be unable to repay its debts.
The employees of the merged party shall be accepted by the merged enterprise in principle.
The enterprise merger law is not a specific single law, but a legal system including the Interim Measures for Enterprise Merger, the Company Law, the Securities Law, the Labor Law and other related laws.
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