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国务院关于股份有限公司境外募集股份及上市的特别规定 SPECIAL REGULATIONS OF THE STATE COUNCIL CONCERNING ISSUING AND LISTING OF SHARES OVERSEAS BY COMPANY LIMITED BY SHARES

2006-05-16 16:58   我要纠错 | 打印 | 收藏 | | |

国务院令第160号
(Adopted at the 22nd Executive Meeting of the State Council on July 4, 1994, promulgated by Decree No. 160 of the State Council of the People's Republic of China on August 4, 1994 and effective as of the date of promulgation)
颁布日期:19940804  实施日期:19940804  颁布单位:国务院办公厅

  Article 1 These Regulations are formulated in accordance with the provisions of Article 85 and Article 155 of the Company Law of the People's Republic of China in order to meet the requirements of issuing and listing of shares overseas by companies limited by shares.

  Article 2 After being approved by the Securities Commission of the State Council, the company limited by shares may issue shares to designated or non-designated investors overseas and its shares may be listed overseas.

  In these Regulations, listing overseas means the transferring of shares issued to investors overseas by companies limited by shares on overseas public securities exchanges.

  Article 3 The shares issued to overseas investors and listed overseas (hereinafter referred to as foreign capital shares listed overseas) by companies limited by shares shall be in the form of registered share certificates, with the face value indicated in renminbi and purchased in foreign currencies.

  Transferring on overseas public securities exchanges, foreign capital shares listed overseas may adopt the form of overseas depository receipts or other derivative forms.

  Article 4 The Securities Commission of the State Council or its supervisory and executive agency, the China Securities Regulatory Commission may, through mutual understanding, enter into an agreement with overseas securities supervisory agencies to cooperatively supervise the activities relating to issuing and listing shares overseas by companies limited by shares.

  Article 5 A company limited by shares wishing to issue shares to overseas investors and list those shares overseas shall, in accordance with the requirements of the Securities Commission of the State Council, lodge a written application, together with relevant documents, to the Securities Commission of the State Council for approval.

  Article 6 When a State-owned enterprise or an enterprise with the majority of its assets owned by the State, pursuant to relevant State regulations, is transformed into a company limited by shares which is able to issue shares to overseas investors and list those shares overseas, the number of the promoters may be less than five if the company is established by way of promotion; once the company limited by shares is established, it may issue new shares.

  Article 7 Shares issued to domestic investors (hereinafter referred to as “domestic capital shares”) by a company limited by shares which issue shares to overseas investors and list those shares overseas (hereinafter referred to as a company) shall be in the form of registered share certificates.

  Article 8 The board of directors of a company may make appropriate arrangements for the respective issue for the plan of issuing foreign capital shares listed overseas and domestic capital shares approved by the Securities Commission of the State Council.

  The company's plans of respective issuing foreign capital shares listed overseas and domestic capital shares pursuant to the provisions of the preceding paragraph may be separately implemented within 15 months after the date of approval by the Securities Commission of the State Council.

  Article 9 Foreign capital shares listed overseas and domestic capital shares which are to be respectively issued as part of the total amount of shares fixed in a company's issue plan shall be respectively raised in full at one time. Under special circumstances where the total amount of shares of each issue cannot be entirely raised in full at one time, such shares may, subject to the approval by the Securities Commission of the State Council, be issued in instalments.

  Article 10 In case that a company fails to fully raise the total amount of shares fixed in its issue plan, it shall not issue new shares outside the original issue plan. When the share issue plan needs to be adjusted, the shareholders' meeting shall make a resolution on the adjustment which, after examination and approval by the company examining and approving department authorised by the State Council, shall be reported to the Securities Commission of the State Council for approval.

  The interval between the date of increasing capital by issuing foreign capital shares listed overseas and the date of the previous issue may be less than 12 months.

  Article 11 Issuing foreign capital shares listed overseas within the total amount of shares fixed in the share issue plan, a company may, subject to the approval by the Securities Commission of the State Council, agree with the underwriters in the underwriting agreement to retain not more than 15% of the intended total amount of foreign capital shares listed overseas, outside the amount of shares underwritten. The issue of shares retained shall be regarded as part of the total shares issued under the original issue plan.

  Article 12 A company's plan of issuing foreign capital shares listed overseas and domestic capital shares respectively shall be revealed completely and exhaustively in the respective prospectus. Any adjustments to the approved and revealed issue plan shall also be disclosed.

  Article 13 The Securities Commission of the State Council, in conjunction with the company examining and approving department authorised by the State Council, may formulate certain essential clauses of the company's articles of association.

  A company's articles of association shall clearly specify contents required by the essential clauses of the company's articles of association. A company shall not be permitted to amend or delete the contents of the essential clauses in its articles of association.

  Article 14 A company shall specify the term of its business operations in its articles of association. The term of the business operations of a company may be perpetual.

  Article 15 The articles of association of a company shall have binding force on the company and its share holders, directors, supervisors, managers and other senior management personnel.

  A company and its shareholders, directors, supervisors, managers and other senior management personnel shall, in accordance with the company's articles of association, put in a claim, apply for arbitration or bring a legal action.

  “Other senior management personnel” referred to in the first and second paragraphs of this Article shall include persons responsible for the company's financial affairs, the secretaries of the board of directors and other personnel as stipulated in the company's articles of association.

  Article 16 Overseas investors who legally hold foreign capital shares listed overseas and whose names or titles are registered in the company's register of shareholders shall be the holders of foreign capital shares listed overseas of the company.

  A beneficial owner of foreign capital shares listed overseas may, in accordance with the statutory regulations of the place where the original register of shareholders is kept or the shares are listed, register his shares, under the name of a nominal holder of the shares.

  The register of shareholders of foreign capital shares listed overseas is regarded as sufficient evidence to verify the holding of a company's shares by the holders of foreign capital shares listed overseas, unless there is contradictory evidence.

  Article 17 In accordance with the mutual understanding and agreement as referred to in Article 4 of the Regulations, the original copy of a company's register of shareholders of foreign capital shares listed overseas may be kept overseas and managed by an overseas agency entrusted by the company. A duplicate copy of a company's register of shareholders of foreign capital shares listed overseas made by the overseas agency shall be kept at the business domicile of the company. The entrusted overseas agency shall ensure at any time the consistency of the original and duplicate copies of the register of shareholders of foreign capital shares listed overseas.

  Article 18 In case that an adjustment to the original copy of a company's register of shareholders of foreign capital shares listed overseas needs to be based on a judicial ruling, the ruling may be made by the jurisdictional court in the place where the original copy of the register is kept.

  Article 19 In the case of loss of share certificates by the shareholders of foreign capital shares listed overseas, an application for re-issue may be handled in accordance with the law or rules of the securities exchanges or other relevant regulations of the place where the original copy of the register of shareholders of foreign capital shares listed overseas is kept.

  Article 20 Convening a shareholders' meeting, a company shall send written notice 45 days prior to the commencement of the meeting to all registered shareholders, specifying the agenda, date and place of the meeting.

  Shareholders intending to attend the shareholders' meeting shall make written reply to the company 21 days prior to the meeting.

  The concrete format of the written notice and written reply forms shall be stipulated by the company in its articles of association.

  Article 21 A company convening an annual shareholders' meeting, shareholders who hold shares representing more than 5% of the voting rights may raise written proposals to the company for resolution. Those matters in such proposals which shall be decided by a shareholders' meeting shall be arranged in the agenda of the annual shareholders' meeting.

  Article 22 A company shall count the number of voting shares held by the shareholders intending to attend the meeting based on the written reply received by the company 20 days prior to the date of the shareholders' meeting. A shareholders' meeting may be convened when the number of voting shares held by the shareholders intending to attend the meeting occupies one-second of the total amount of voting shares; if not, the company shall, within 5 days, inform the shareholders once again by way of public notice which shall include the agenda, date and place of the meeting. A shareholders' meeting may be convened after a public notice has been made.

  Article 23 The directors, supervisors, managers and other senior management personnel of a company shall have the fiduciary and diligent duties to the company.

  Those personnel mentioned in the preceding paragraph shall abide by the company's articles of association and carry out their duties faithfully, protect the rights and interests of the company, and shall not be permitted to seek personal gains by taking advantage of their positions and powers in the company.

  Article 24 A company shall appoint an independent accounting firm, which conforms to relevant State regulations, to audit the annual report of the company and review other financial reports of the company.

  A company shall provide relevant information to the appointed accounting firm and answer its inquiries.

  The period of appointment of an accounting firm by a company shall commence from the date of conclusion of the current annual shareholders' meeting and end at the conclusion of the subsequent annual shareholders' meeting.

  Article 25 A company shall inform the accounting firm in advance when it intends to dismiss or not continue to re-appoint it. The accounting firm shall have the right to give its opinions on the dismissal or non re-appointment to the shareholders' meeting.

  An accounting firm which apply to resign from its office shall make a statement to the shareholders' meeting whether or not the company has conducted any inappropriate transactions.

  Article 26 Decisions on matters relating to the appointment, dismissal or non re-appointment of an accounting firm shall be made by the shareholders' meeting and reported to the China Securities Regulatory Commission for the record.

  Article 27 Dividends or other payments which are to be paid by the company to the shareholders of the company's foreign capital shares listed overseas shall be calculated and declared in renminbi and paid in foreign currencies. The exchange settlement of the capital raised by a company in foreign currencies and the foreign exchange needed by a company to pay share dividends and make other payments to its shareholders shall be handled in accordance with the regulations of the State concerning foreign exchange control.

  In case that the articles of association of a company provide that the aforesaid payments shall be converted into foreign currencies and paid to shareholders by other agencies on the company's behalf, such provisions shall apply.

  Article 28 The contents of those documents prepared by a company to reveal certain information about the company both in China and overseas shall not be contradictory.

  In case that there is a difference between the information revealed in China and overseas due to respective laws and statutory regulations, rules of the securities exchanges, such a difference shall be revealed in the related securities exchanges simultaneously.

  Article 29 Disputes in relation to the contents of a company's articles of association and other matters between the shareholders of foreign capital shares listed overseas and the company, between the shareholders of foreign capital shares listed overseas and the company's directors, supervisors and managers, or between the shareholders of foreign capital shares listed overseas and shareholders of domestic capital shares shall be resolved in accordance with the provisions of the company's articles of association.

  The laws of the People's Republic of China shall apply to the settlement of disputes in the preceding paragraph.

  Article 30 These Regulations shall take effect from the date of promulgation.

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