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深圳经济特区技术成果入股管理办法 Shenzhen Special Economic Zone, Administration Of The Use Of Technological Achievements As Capital Contributions For Equity Shares Procedures

2006-05-14 16:51   我要纠错 | 打印 | 收藏 | | |

深圳市人民政府令第78号
(Promulgated by the Shenzhen City Govenment on, and effective as of, 14 September 1998.)
颁布日期:19980914  实施日期:19980914  颁布单位:深圳市人民政府

  PART ONE GENERAL PROVISIONS

  Article 1 These Procedures are formulated in accordance with the provisions of State laws and regulations in order to promote the optimal combination of technological achievements with other key elements of production, to adjust the relationship between the rights and obligations of the investor of technology and the other shareholders, and to protect the interests of companies' creditors and of the public.

  Article 2 These Procedures apply to the use of technological achievements as capital contribution for equity shares when setting up limited liability companies and share limited companies (hereafter referred to as "companies").

  Article 3 For the purposes of these Procedures the term "use of technological achievements as capital contribution for equity shares" means use by the owner of a technological achievement (hereafter referred to as the "technological investor") of his property rights over that technological achievement as capital investment in a company. The technological investor shall become a shareholder and the property rights over the technological achievement shall be transferred to the company.

  Article 4 The technological investor can use the following property rights over technological achievements as capital contributions for equity shares:

  1. patents on inventions, practical and new applications, and external designs;

  2. computer software copyrights;

  3. rights of use over non-patented technological achievements; and

  4. other technological achievement property rights recognized by laws and regulations.

  For the purposes of these Procedures the terms "patent" and "computer software copyright" mean rights granted under Chinese law. They do not include rights granted under foreign laws, nor permission to use the relevant rights.

  Article 5 The provisions on the use of non-patented technological achievements as capital contributions for equity shares shall apply to technological achievements for which patents have been applied for but not yet granted.

  When a patent application is granted after the technological achievement has been used as a capital contribution for equity shares, the technological investor must transfer the patent rights to the company within six months of the date the patent is granted.

  Article 6 The outstanding statutory protection period for patents and computer software copyrights used as investment should be not less than three years.

  Article 7 Non-patented technological achievements used as capital contributions for equity shares should be existing technological achievements which are specific, complete and teachable within a short time to ordinary technicians in that field of technology.

  Technological achievements not yet fully developed, piecemeal technological knowledge and information, and technological capabilities or experience not easily separable from the technician himself, must not be invested as technological achievements.

  PART TWO VALUATION OF TECHNOLOGICAL ACHIEVEMENTS

  Article 8 Technological achievements used as investment must be evaluated before the company is established and registered or before the company registration is changed.

  Article 9 When the investment of the technological investor and of the other investors does not involve State-owned assets, the investors can agree to select the following methods of valuation of the technological achievement being used as capital contribution for equity shares:

  1. valuation through consensus; or

  2. assessment and valuation by an asset valuation organization in possession of the statutory qualifications.

  Article 10 When the investment of the technological investor or any of the other investors does involve State-owned assets, the technological achievement being used as capital contribution for equity shares must be assessed and evaluated by an asset valuation organization in possession of the statutory qualifications, or evaluated in accordance with the relevant laws and regulations.

  Article 11 An assessment by an asset valuation organization can only be used as the value of the technological achievement after it has been recognized by all the investors.

  Article 12 The proportion of a company's registered capital represented by the value of the technological achievement must in general not exceed 20 per cent.

  The proportion of a limited liability company's registered capital represented by the value of a technological achievement recognized by the municipal department in charge of science and technology as being a high and new technological achievement can exceed 20 per cent, but must not exceed 35 per cent.

  Where there are other provisions governing the proportion of a foreign investment enterprise's registered capital represented by use of technological achievements as capital contributions for equity shares, those provisions shall apply.

  Article 13 When the proportion of a company's registered capital represented by the value of a technological achievement exceeds the limits stipulated in Article 12 of these Procedures, the investors can increase the registered capital to bring the proportion down to within these limits.

  If the investors do not increase the registered capital, the proportion of shares held by the technological investor must be within the stipulated limits. The other shareholders shall give appropriate economic recompense for the value of the technological achievement exceeding the amount actually used as capital contribution for equity shares.

  PART THREE ARTICLES OF ASSOCIATION

  Article 14 When a technological achievement is used as capital contribution for equity shares, the articles of association should clarify the following as well as recording those items stipulated in the PRC, Company Law:

  1. specifics of the technological achievement being invested;

  2. value of the technological achievement and the way this was calculated;

  3. proportion of the company's registered capital represented by the technological achievement invested;

  4. the technological investor's investment obligations and competitor prohibitions;

  5. time limit and standards for checking and acceptance;

  6. in the case of investment of a non-patented technological achievement, restrictions on whether or not the technological investor can transfer the technological achievement to a third party while the company remains in existence; and

  7. method of sharing further improvements to the technological achievement.

  Article 15 The "specifics of the technological achievement being invested" in the articles of association shall include the investment's patent title, patent type, the date the patent was applied for, patent number and period of validity of the patent; or the computer software's title, registration number and the date it was first issued; or in the case of a non-patented technological achievement its title, content, the requirements and degree of industrial development.

  Article 16 The "investment obligations" stipulated in the articles of association means the work which must be done by the technological investor, such as provision of complete technical information and material, provision of samples, and implementation of technical guidance and training, to ensure that the technological achievement is transferred smoothly and the company can digest, understand and implement it.

  Article 17 The standards for checking and acceptance should only involve the technical content of the technological achievement and the process for passing on knowledge of it and for using it. In general this should include such aspects as provision by the technological investor of blueprints, technical material, samples and prototypes. If there is clear agreement by the parties involved, the technological investor can provide special equipment and raw materials, and other specially produced parts, for the implementation of the technological achievement.

  Economic benefits or costs forecasts and analyses for when the technological achievement has been implemented cannot be regarded as a component of the standards for checking and acceptance, unless the parties involved have a special agreement to this effect.

  PART FOUR INVESTMENT AND REGISTRATION

  Article 18 Companies should register in accordance with the PRC, Administration of Company Registration Regulations (hereafter referred to as the Company Registration Regulations). When registering the following documents should be appended to the certificates submitted to the company registration authorities:

  1. patent certificate, computer software registration certificate, or authentication certificate or certificate issued by the municipal department in charge of science and technology for non-patented technological achievements;

  2. the original of a patent registration book issued by the China Patent Office within the last three months, or the original of a software registration book issued by the software registration authorities within the last three months; and

  3. a consensus valuation document or asset valuation report signed jointly by all the investors.

  If the proportion represented by use of the technological achievement as capital contribution for equity shares exceeds 20 per cent the relevant documents from the municipal department in charge of science and technology recognizing the achievement as new and high technology must also be attached.

  Article 19 The technological investor should carry out his investment obligations in accordance with the articles of association.

  Article 20 When a technological achievement is used as capital contribution for equity shares in a newly established company, the statutory transfer procedure for the technological achievement property rights can be carried out after the company is established.

  Article 21 When a patent is invested in a newly established company the patent transfer procedure should be carried out at the State patent authorities within six months of the date of the company being established, and the company registration authorities informed. Once the company is established but before the transfer has become effective, the company is regarded as having permission to use the patent and can use it in its business.

  Article 22 When a computer software copyright is invested in a newly established company this should be put on file with the software registration authorities of the State copyright authorities within three months of the date of the company being established, and a certificate that this has been done sent to the company registration authorities.

  Article 23 When a non-patented technological achievement is invested in a newly established company, the technological investor and the company should sign a technology transfer contract within one month of the date of the company being established and put this on file with the company registration authorities.

  Article 24 When a technological achievement is used as a capital contribution for a new increase in equity shares of a limited liability company, the patent transfer must first be carried out through the State patent authorities or the filing procedure carried out through the software registration authorities of the State copyright authorities. The company registration authorities should check and verify whether the transfer or filing procedures have been carried out. If they have not, acceptance will be refused.

  Article 25 The company in receipt of the rights shall be responsible for carrying out the property transfer procedures stipulated in Section 2, Article 5 and in Articles 21, 22 and 23 of these Procedures. The technological investor should be responsible for carrying out the procedures or for providing the necessary assistance if the departments concerned stipulate that they can only be carried out if the technological investor does so or that the technological investor must assist.

  Article 26 Once investment is complete all parties should implement joint checking and acceptance. If the required standards are met they should jointly sign a checking and acceptance document to be put on file with the company registration authorities. If the required standards are not met the technological investor should take responsibility for violating the agreement.

  Once checking and acceptance are complete the technological investor shall remain obliged to provide necessary and reasonable guidance on technical problems encountered in the course of utilizing the technology.

  Article 27 In the case of disputes over ownership rights to technological achievements, the parties involved or others affected shall submit evidence to the company registration authorities, which should halt the registration of use of technological achievements as capital contribution for equity shares. Registration shall be resumed once the dispute has been resolved.

  PART FIVE RIGHTS, OBLIGATIONS AND SETTLEMENT

  Article 28 The technological investor and the other shareholders have equal legal status. The company board or other shareholders must not restrict the technological investor's exercise of his shareholder's rights in any way.

  Article 29 Once he has fulfilled his investment obligations the technological investor can assume a post in the company or can not assume a post in the company.

  All investors should agree on the length of life of the company. Without the company's agreement the technological investor may not assume a post in another enterprise which produces the same type of products, or which is in competition with the company, in such areas as technological development, technological administration or technological services. Nor may they produce the same type of products in competition in their own enterprise.

  Article 30 If any one of the following situations occurs, the company shareholders' meeting shall have the right to pass a resolution revoking the technological investor's share rights or ordering the technological investor to use other assets to make up the amount created through use of the technological achievement as capital contribution for equity shares within three months of the date the situation was confirmed:

  1. the investment is a patent and the patent is legally rescinded, declared invalid or judged not to belong to the technological investor; or

  2. the investment is a computer software copyright or user rights for a non-patented technological achievement, and the achievement is legally judged not to belong to the technological investor.

  If the technological investor is unable sufficiently to make up the technological achievement amount on time, the company shareholders' meeting should pass a resolution revoking the technological investor's share rights and the company should carry out a change of registration for reduction in registered capital in accordance with the law.

  Article 31 If one of the situations in Article 30 occurs, the technological investor should be responsible for compensating losses so caused to the company or its creditors, regardless of whether the technological investor has or has not made up the amount.

  Article 32 If patents or computer software copyrights already used as capital contributions for equity shares are terminated because the protection period is up, the corresponding shares shall not be affected.

  Article 33 If one year after non-patented technological achievements are used as capital contributions for equity shares the value of their use is reduced or lost, the corresponding shares are not affected. But if the value of use of non-patented technological achievements is reduced or lost through the fault of the technological investor, the technological investor should be responsible for compensating losses so caused to the company or its creditors.

  Article 34 If the technological investor has allowed another person to use the technological achievement before carrying out the procedure to use the technological achievement as capital contributions for equity shares, and the allowed period for use will extend until after the technological achievement is used as capital contribution for equity shares, the relevant circumstances should be made clear beforehand to the company, its shareholders and the asset valuation organization accepting the case for evaluation.

  If the relevant circumstances are not made clear beforehand the company shall have the right to decide to re-evaluate the technological achievement, and the valuation fees and other fees so incurred shall be borne by the technological investor. The company shareholders' meeting shall have the right to decide to reduce the technological investor's shares by an amount corresponding to the difference in the valuations, or to order the technological investor to make up the corresponding amount using other assets within three months. If the technological investor is unable to make up the full amount on time, the company should carry out a change in registration for reduction in registered capital in accordance with the law. The technological investor shall be responsible for compensating losses caused to the company, its shareholders or any third party.

  Article 35 When non-patented technological achievements are used as capital contributions for equity shares, if the technological investor transfers the non-patented technological achievement to a third party in violation of the agreement, the company shall have the right to take the necessary measures to put a stop to this. The technological investor should be responsible for compensating any losses so caused to the company or its creditors.

  Article 36 When a company is liquidated in accordance with the law, the liquidation organization shall auction or sell off the property rights to the technological achievements enjoyed by the company and the money obtained shall be entered into the company's financial assets for liquidation.

  If the original technological investor so requests, and the company creditors and other shareholders do not disagree, the property rights to the technological achievement can be returned to the technological investor.

  PART SIX LEGAL LIABILITIES

  Article 37 If the property rights transfer procedure is not carried out within the time limits stipulated in Section 2, Article 5 and in Articles 21, 22 and 23 of these Procedures, the company registration authorities shall impose a penalty in accordance with Article 60 of the Company Registration Regulations.

  Article 38 If the property rights transfer procedure stipulated in Section 2, Article 5 and in Articles 21 and 22 of these Procedures must be carried out by the technological investor, or the technological investor must assist, and the technological investor without good reason refuses to carry out the procedure or to provide the necessary assistance, so leading to an illegal transfer of property rights, the company registration authorities shall penalize the technological investor in accordance with Article 60 of the Company Registration Regulations.

  Article 39 If the technological investor fails without good reason to carry out his investment obligations within the stipulated checking and acceptance time in accordance with the articles of association, the company registration authorities shall impose a penalty in accordance with Article 60 of the Company Registration Regulations.

  Article 40 If in violation of Articles 30 and 34 of these Procedures it is impossible to make up the technological investment amount or difference, and the change in registration to reduce registered capital is not carried out, the company registration authorities shall impose a fine in accordance with Article 58 of the Company Registration Regulations.

  Article 41 If in violation of Article 35 of these Procedures the technological investor transfers the same technological achievement to a third party in violation of the agreement, the company registration authorities shall impose a penalty in accordance with Article 61 of the Company Registration Regulations.

  The penalty in the above clause shall not affect the company's right to demand compensation for losses from the technological investor.

  PART SEVEN SUPPLEMENTARY PROVISIONS

  Article 42 The relevant provisions of these Procedures apply to the implementation of use of technological achievements as capital contributions for equity shares by foreign investment enterprises except where other laws and regulations stipulate otherwise.

  Article 43 These Procedures shall be effective as of date of promulgation.

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