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对外贸易经济合作部、国家工商行政管理局外商投资企业投资者股权变更的若干规定 MOFTEC and SAIC, Changes in Equity Interest of Investors in Foreign Investment Enterprises Several Provisions

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[1997]外经贸法发第267号
(Promulgated by the Ministry of Foreign Trade and Economic Co-operation and the State Administration for Industry and Commerce on, and effective as of, 28 May 1997.)
颁布日期:19970528  实施日期:19970528  颁布单位:对外贸易经济合作部、 国家工商行政管理局

  Article 1 These Provisions are formulated in accordance with the PRC, Company Law, the PRC, Sino-foreign Equity Joint Venture Law, the PRC, Sino-foreign Co-operative Joint Venture Law and the PRC, Wholly Foreign-owned Enterprise Law and other relevant laws and regulations, in order to promote the healthy development of foreign investment enterprises, to safeguard the lawful rights and interests of all investing parties and to protect the social and economic order.

  Article 2 For the purpose of these Regulations, the term “changes in equity interest of investors in foreign investment enterprises” shall refer to changes that occur in investors in Sino-foreign equity joint ventures, Sino-foreign co-operative joint ventures or wholly foreign-owned enterprises (“Enterprises”) established in China under Chinese laws or changes that occur in the shares of capital contributions (including co-operation conditions provided) (“Equity Interests”) of investors in Enterprises. The above includes but is not limited to changes in the Equity Interest of investors in foreign investment enterprises caused by the following main reasons:

  1. Equity Interest is assigned through an agreement between the investors in the Enterprise;

  2. an investor in the Enterprise assigns its Equity Interest to its affiliate or another assignee with the consent of all other investors;

  3. the registered capital of the Enterprise is adjusted through an agreement between the investors in the Enterprise, resulting in a change in the Equity Interests of all the investors;

  4. an investor in the Enterprise, with the consent of all the other investors, pledges its Equity Interest to a creditor, and the pledgee or beneficiary acquires such Equity Interest in accordance with the provisions of the law or the stipulations of the contract;

  5. an investor in the Enterprise becomes bankrupt, is dissolved, is abolished, is closed down or dies, or its successor, creditor or other beneficiary acquires the Equity Interest of such investor according to law;

  6. an investor in the Enterprise is merged or divided, and its successor after the merger or division inherits the Equity Interest of the original investor according to law; or

  7. an investor in the Enterprise fails to perform its obligation to contribute capital as prescribed in the contract and articles of association and, with the approval of the original examination and approval authority, the investor is replaced or the Equity Interest changed.

  Article 3 Any change in the Equity Interest of an investor in an Enterprise shall conform with the relevant Chinese laws and regulations and be subject to approval by the examination and approval authority in accordance with these Provisions, whereupon the registration with the registration authority shall be changed in accordance with these Regulations. Any changes in Equity Interest that have not been approved by the examination and approval authority shall be invalid.

  Article 4 Changes in the Equity Interests of investors in Enterprises must conform with the provisions of Chinese laws and regulations on the qualifications of investors and with industrial policy requirements.

  In industries where the Foreign Investment Industrial Guidance Catalogue does not permit wholly foreign-owned enterprises, a change in Equity Interest may not result in a foreign investor's holding the entire Equity Interest in the Enterprise. If an Enterprise becomes a wholly foreign-owned enterprise due to a change in Equity Interest, the Enterprise must also conform with the conditions for the establishment of a wholly foreign-owned enterprise specified in the PRC, Wholly Foreign-owned Enterprise Implementing Rules (“the WFOE Rules”)。

  In industries where State-owned assets are required to form the controlling interest or occupy a dominant position, a change in Equity Interest may not result in a situation where a foreign investor or another entity that is not a Chinese State-owned enterprise holds a controlling interest or occupies a dominant position.

  Article 5 A change in the Equity Interest of an investor in an Enterprise may not result in the investment ratio of the foreign investor being lower than 25% of the registered capital of the Enterprise, unless the foreign investor assigns its entire Equity Interest to the Chinese investor.

  Article 6 With the consent of the other investors in the Enterprise, an investor that makes a capital contribution may pledge to a pledgee the Equity Interest formed by the paid-up portion of its capital contribution in accordance with the relevant provisions of the PRC, Security Law (“the Security Law”), by signing a pledge contract and obtaining the approval of the examination and approval authority. An investor may not pledge Equity Interest in any portion of its capital contribution that has not yet been paid up. An investor may not pledge its Equity Interest to the Enterprise invested in.

  During the period of pledge, the pledging investor's status of investor in the Enterprise does not change. The pledgee may not assign the pledged Equity Interest without the consent of the pledging investor and the other investors in the Enterprise. The pledging investor may not assign or re-pledge the Equity Interest that it has already pledged.

  The rights and obligations of the pledging investor and the pledgee and the provisions of the pledge contract shall be governed by the relevant laws and regulations and the relevant provisions of these Provisions.

  Article 7 The authority for examination and approval of a change in Equity Interest of an investor in an Enterprise shall be the examination and approval authority that approved the establishment of the Enterprise. If the Equity Interest of a Chinese investor in a Sino-foreign equity or co-operative joint venture changes, causing the Enterprise to become a wholly foreign-owned enterprise, and such Enterprise belongs to an industry in which the establishment of wholly foreign-owned enterprises is restricted as specified in Article 5 of the WFOE Rules, the change in the Equity Interest of the Chinese investor in such Enterprise shall be subject to approval by the Ministry of Foreign Trade and Economic Co-operation of the PRC (“MOFTEC”)。

  If an increase in the registered capital of an Enterprise leads to a change in the Equity Interests of the investors in the Enterprise and results in a situation where its total amount of investment exceeds the limit of authority for examination and approval of the original examination and approval authority, the change in the Equity Interests of the investors in the Enterprise shall be reported to a higher examination and approval authority for examination and approval in accordance with the limits of authority for examination and approval and the relevant regulations.

  The authority for registration of a change in the Equity Interest of an investor in an Enterprise shall be the original registration authority. A change in Equity Interest that has been approved by MOFTEC shall be registered by the State Administration for Industry and Commerce or, upon entrustment by the State Administration for Industry and Commerce, the original registration authority.

  Article 8 When the Equity Interest of a Chinese investor that had invested State-owned assets changes, a value appraisal of the Equity Interest that needs to be changed must be carried out by the relevant State-owned assets appraisal authority, and confirmed by the administration authority for State-owned assets. The confirmed appraisal results shall be the basis for valuing the Equity Interest to be changed.

  Article 9 If Equity Interest needs to be changed for a reason set forth in Items (1) and (2) of Article 2 hereof, the Enterprise shall submit the following documents to the examination and approval authority:

  1. an application for change in the Equity Interest(s) of the investor(s);

  2. the original contract for and articles of association of the Enterprise, and the amendment agreements therefor;

  3. photocopies of the approval certificate and business licence of the Enterprise;

  4. the resolution of the Board of Directors of the Enterprise concerning the change in Equity Interest(s) of the investor(s);

  5. the list of the members of the Board of Directors after the Equity Interest(s) of the investor(s) in the Enterprise investor has (have) changed;

  6. the Equity Interest assignment agreement executed between the assignor and the assignee and signed or otherwise confirmed in writing by the other investors; and

  7. other documents that the examination and approval authority requires to be submitted.

  Article 10 An Equity Interest assignment agreement shall include the following particulars:

  1. the names and domiciles of the assignor and assignee, and the names, positions and nationalities of their legal representatives;

  2. the share accounted for by, and the price of, the assigned Equity Interest;

  3. the time limit for settlement and the form of the Equity Interest assignment;

  4. the rights and obligations of the assignee under the contract for and articles of association of the Enterprise;

  5. liability for breach of contract;

  6. governing law and settlement of disputes;

  7. entry into effect and termination of the agreement; and

  8. time and venue of conclusion of the agreement.

  Article 11 If an Equity Interest needs to be changed for the reason set forth in Item (3) of Article 2 hereof, it shall conform with the relevant special regulations of MOFTEC and the State Administration for Industry and Commerce. In addition to submitting the documents specified in Items (1), (2), (3), (4) and (5) of Article 9, the agreement to change the Equity Interest executed by the investors of the Enterprise shall be submitted to the examination and approval authority.

  Article 12 After an investor in an Enterprise and a pledgee have executed a pledge contract for an Equity Interest, the following documents shall be submitted for examination to the examination and approval authority that approved the establishment of the Enterprise:

  1. the resolutions of the Board of Directors and the other investors in the Enterprise concerning consent to the pledging investor's pledge of its Equity Interest;

  2. the pledge contract executed by the pledging investor and the pledgee;

  3. the capital contribution verification certificate of the pledging investor; and

  4. the investment verification report issued for the Enterprise by an accountant registered in China and the accountant's firm.

  The examination and approval authority shall decide whether to grant approval or not within 30 days of the date on which all the documents specified in the preceding paragraph are received.

  Within 30 days of obtaining the official reply in which the examination and approval authority agrees to the pledge of Equity Interest by the investor in the Enterprise, the Enterprise shall record the pledge with the original registration authority on the strength of the relevant official reply document.

  Pledge acts that have not been examined and approved and placed on the record in accordance with this Article shall be invalid.

  Article 13 If the ownership of a pledged Equity Interest passes to the pledgee or another beneficiary in accordance with the provisions of the Security Law, the Enterprise shall submit to the examination and approval authority valid documentary evidence of the pledgee's or other beneficiary's obtaining of the Equity Interest of the original investor, in addition to the documents specified in Items (1), (2), (3), and (5) of Article 9. The examination and approval authority shall carry out the examination and approval in accordance with the above-mentioned documents, the documents mentioned in Article 12 hereof and the relevant laws and regulations.

  Article 14 If Equity Interest needs to be changed for a reason set forth in Items (5) and (6) of Article 2 hereof, in addition to submitting the documents specified in Items (1), (2), (3), and (5) of Article 9, the Enterprise shall submit to the original examination and approval authority valid documentary evidence of the obtaining of the Equity Interest of the original investor by the person that obtained the Equity Interest.

  If the provisions of Item (5) or (6) of Article 2 hereof result in a change in an investor in an Enterprise and the other investors in the Enterprise do not agree to continue operations, an application may be made to the original examination and approval authority to terminate the contract for and articles of association of the original Enterprise. After the contract for and articles of association of the original Enterprise have been terminated, the person that obtained the Equity Interest shall have the right to join the liquidation committee and to be distributed property of the Enterprise remaining after liquidation. If the person that obtained the Equity Interest does not agree to continue operations, it may assign its Equity Interest to another investor in the Enterprise or a third party in accordance with these Regulations.

  Article 15 If an investor needs to be replaced or Equity Interest needs to be changed for the reason set forth in Item (7) of Article 2 hereof, the non-breaching investor shall have the right to unilaterally apply to the original examination and approval authority to make such change. In addition to submitting the documents specified in Items (1), (2), (3) and (5) of Article 9, the non-breaching investor shall submit the following documents to the original examination and approval authority:

  1. the investment verification report issued for the Enterprise by an accountant registered in China and the accountant's firm; and

  2. documentary evidence of the non-breaching party's urging the party in breach to make or make in full its capital contribution.

  If a new investor participates in the equity, proof of the lawful commencement of business and creditworthiness of the new investor shall be submitted to the examination and approval authority as well. If the party in breach had already made part of its capital contribution in accordance with the original contract for and articles of association of the Enterprise, documents related to the Enterprise's disposal of the portion of capital contribution of the party in breach shall also be submitted to the examination and approval authority.

  Article 16 If the Equity Interest of a Chinese investor that invested State-owned assets changes, the Enterprise must also submit the following documents to the examination and approval authority:

  1. the signed opinion of the authority in charge of the Chinese investor on the change in the Equity Interest of the investor in the Enterprise.

  2. the asset appraisal report in respect of the Equity Interest that needs to be changed, issued by an appraisal organization for State-owned assets; and

  3. written confirmation issued by the administration authority for State-owned assets in respect of the above-mentioned asset appraisal report.

  Article 17 The examination and approval authority shall decide whether to grant approval or not within 30 days of the date on which all the specified documents to be submitted are received.

  An Enterprise shall carry out the procedures for changing its foreign investment enterprise approval certificate with the examination and approval authority within 30 days of the date on which the examination and approval authority approves the change in the Equity Interest(s) of the investor(s) in the Enterprise.

  If the Chinese investor obtains the entire Equity Interest in an Enterprise, it must hand in for cancellation the foreign investment enterprise approval certificate to the examination and approval authority within 30 days of the date on which the examination and approval authority approves the change in the Equity Interests of the investors in the Enterprise. Within 15 days of the date on which the examination and approval authority cancels the foreign investment enterprise approval certificate, it shall issue a notice concerning such cancellation to the original registration authority of the Enterprise.

  Article 18 Within 30 days of the date on which an Enterprise's foreign investment enterprise approval certificate is changed or handed in for cancellation, the Enterprise shall apply to change its registration with the registration authority in accordance with relevant regulations such as the PRC, Administration of the Registration of Enterprise Legal Persons Regulations, the PRC, Administration of Company Registration Regulations, etc. If the registration is not changed with the registration authority in accordance with these Provisions, the registration authority shall impose a fine in accordance with the relevant regulations.

  Article 19 When an Enterprise applies to register a change in Equity Interest, it shall supply to the registration authority the relevant documents submitted to the examination and approval authority.

  If an investor needs to be replaced or the registration of Equity Interest needs to be changed for the reason set forth in Item (7) of Article 2 hereof, the document concerning the positions held in the new Board of Directors of the Enterprise by the members thereof, the proof of identity of the members of the new Board of Directors and the resolution of the new Board of Directors shall be submitted to the registration authority in addition to the documents specified in Article 15 hereof.

  If a Chinese investor obtains the entire Equity Interest in an Enterprise because of a change in the Equity Interest(s) of the other investor(s) in the Enterprise, the Enterprise shall, when applying to change the registration, submit the relevant documents to the registration authority in accordance with the requirements for registering the establishment of the proposed type of enterprise into which the Enterprise is to change. Upon approval by the registration authority, the Business Licence of an Enterprise with the Status of a Legal Person of the PRC shall be handed in for cancellation and replaced with a Business Licence of an Enterprise with the Status of a Legal Person.

  Article 20 An agreement for assignment of Equity Interest and an agreement to amend the original contract for and articles of association of an Enterprise shall be effective from the date of issuing the amended foreign investment enterprise approval certificate. After such agreements become effective, the relevant rights and obligations of the investors in the Enterprise shall be as specified in the amended contract for and articles of association of the Enterprise.

  Article 21 Except where laws and regulations provide otherwise, the transfer of unlisted shares in companies limited by shares with foreign investment shall be handled by reference to these Provisions.

  Article 22 Where a company, enterprise or other economic organization or an individual from Hong Kong, Macao or Taiwan has invested in and established an enterprise elsewhere in China and a change occurs in the Equity Interest of an investor in such enterprise, such change shall be handled by reference to these Provisions.

  Article 23 These Provisions shall be effective as of the date of promulgation.

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