Laws of the People's Republic of China

The Ministry of Foreign Trade and Economic Cooperation, the State Administration for Industry and Commerce

Circular of the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce Concerning Printing and Distributing Provisions for the Alteration of Investors' Equities in Enterprises with Foreign Investment

WaiJingMaoFaFa [1997] No.267

May 28, 1997

In order to standardize the alteration procedures of investors' equities in enterprises with foreign investment and protect the legitimate rights and interests of investors, The Provisions for the Alteration of Investors'Equities in Enterprises with Foreign Investment are hereby printed and distributed to you for implementation.If problems arise during implementation, it is requested that they be reported to the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce in timely fashion. Attachment:Provisions for the Alteration of Investors' Equities in Enterprises with Foreign Investment

Article 1

These provisions are formulated hereby pursuant to the Company Law of the People's Republic of China, the Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures, the Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures, the Law of the People's Republic on Foreign-capital Enterprises and other pertinent laws and regulations to promote the healthy development of enterprises with foreign investment, protect the legitimate rights and interests of investors, and maintain social and economic order.

Article 2

"Alteration of investors" equities in enterprises with foreign investment as used in these Provisions refers to alteration of investors of Sino-foreign equity joint ventures, Chinese-foreign contractual joint ventures, enterprises with foreign investment set up on the territory of the People's Republic of China (hereinafter referred to as the enterprise) or their shares (hereinafter referred to as equities) of investment in the enterprise (including terms of cooperation they provide). It will include, but will not limit to, the following major factors leading to alteration of investors's equities in enterprises with foreign investment:

1.

Agreed transfer of equities between investors in the enterprise.

2.

Transfer of equities to other related enterprises or other transferees by an investor in the enterprise with agreement from other investors.

3.

Alteration of equities of each investing party due to readjustment of registered capital of the enterprise agreed to by investors in the enterprise.

4.

Ownership of equities of investors by pledgees or beneficiaries in accordance with legal terms or contracts that have been pledged by investors in the enterprise to creditors with agreement from other investors.

5.

Ownership of equities by inheritors, creditors or other beneficiaries in accordance with law due to bankruptcy, dismission, cancellation, revocation, or death of an investor in the enterprise.

6.

Inheritance of equities of the initial investor by a successor due to merge or split of investors in the enterprise.

7.

Alteration of investors or equities due to failure on the part of an investor in the enterprise to perform investment duties as stipulated in enterprise contracts or in articles of association, with approval from departments in charge of examination and approval.

Article 3

Alteration of equities by an investor in the enterprise shall abide by pertinent Chinese laws and regulations, and be approved by examination and approval departments and submitted for alteration registration with registration departments in line with stipulations in these Provisions. Alteration of equities without approval from examination and approval departments shall be invalid.

Article 4

Alteration of equities by an investor in the enterprise shall conform with stipulations in Chinese laws and regulations concerning the qualifications of investors and with requirements of China's industrial policies.

In line with the Catalogue for the Guidance of Foreign Investment Industries, alteration of equities shall not lead to ownership of all the equities of an enterprise by an overseas investor in any of the sectors where exclusive overseas investment in the enterprise is not allowed. Should alteration of equities turn a Chinese enterprise into an enterprises with foreign investment, the requirements for setting up enterprises with foreign investment prescribed in the Rules for the Implemention of the Law of the People's Republic of China on Enterprises with Foreign Investment (hereinafter referred to as Rules on Enterprises with Foreign Investment) shall also be met.

In industries where State-owned assets take the holding or leading position, alteration of equities shall not lead to the taking of such a position by any foreign investors or other enterprises than State-owned ones.

Article 5

Unless a foreign investor transfer all of its equities to the Chinese investor, alteration of equities by an investor in the enterprise shall not result in the sharing of investment by this foreign investor of less than 25 per cent of the registered capital of this enterprise.

Article 6

With consent from other investors in the enterprise, the investor who has paid up its share of investment can pledge the equities that have been created with its share of investment to a pledgee by signing a pledging contract in line with pertinent stipulations in the Guarantee Law of the People's Republic of China (hereinafter referred to as the Guarantee Law) and with approval from examination and approval departments. The investor shall not pledge the equities to be created with the part of investment it has not yet paid up. Neither shall the investor pledge its equities to the same enterprise it has invested in.

During the period of pledge, the status of the pledgor as an investor in the enterprise shall not change. Without consent from the pledgor and other investors in the enterprise, the pledgee shall not transfer the pledged equities. Without consent from the pledgee, the pledgor shall not transfer or re-pledge the pledged equities.

The rights and obligations of the pledgor and the pledgee and the content of the pledging contract shall be governed by pertinent stipulations in relevant laws, regulations and these Provisions.

Article 7

The department to examine and approve the alteration of the equities by an investor in the enterprise shall be the examination and approval department that has approved the establishment of this enterprise. Should alteration of the equities of a Chinese investor in a Sino-foreign equity or contractual joint venture turn this venture into an enterprises with foreign investment and this enterprise specializes in the sector where enterprises with foreign investment are restricted as stipulated in Article 5 of the Rules on Enterprises with Foreign Investment, the alteration of the equities of the Chinese investor in this venture shall be approved by the Ministry of Foreign Trade and Economic Cooperation of the People's Republic of China (hereinafter referred to as the MOFTEC).

Should changes take place in the equities of an investor in the enterprise due to multiplication of the enterprise's registered capital and the total investment of this enterprise surpass the limit of amount authorized to handle by the original examination and approval department as a result, alteration of the equities of the investors in the enterprise shall be reported for examination and approval to a senior examination and approval department in line with the limit of power of this department and pertinent regulations.

The department in charge of registration of alteration of equities of investors in the enterprise shall be the original registration department. Registration of alteration of equities approved by the MOFTEC shall be handled by the State Administration for Industry and Commerce or the original registration department with authorization from the Administration.

Article 8

In case of alteration of the equities of a Chinese investor that has invested with State-owned assets, relevant departments in charge of valuation of State-owned assets shall evaluate the equities to be altered. Such evaluation shall also be verified by departments in charge of management of State-owned assets. The verified results of valuation shall be used as the basis for pricing the equities to be altered.

Article 9

If equities must be altered due to reasons specified in the first and second subparagraphs in Article 2 of these Provisions, the enterprise shall submit the following documents to examination and approval departments:

1.

Application for alteration of equities of investors in the enterprise

2.

The original contracts and articles of association of the enterprise and agreements on their revision.

3.

Duplicates of certificates of approval for the establishment of the enterprise and business licenses.

4.

Resolutions of the board of directors of the enterprise on the alteration of equities of investors.

5.

List of members on the board of directors after alteration of equities of investors in the enterprise.

6.

Agreement on equity transfer reached between the transferor and the transferee and signed or confirmed in other written form by other investors.

7.

Other documents required by examination and approval departments.

Article 10

Agreements on the transfer of equities shall include the following major contents:

1.

Names and residential addresses of transferors and transferees and the names, posts and nationalities of legal representatives.

2.

Quantity and price of the equities to be transferred.

3.

Limit of time and method for the delivery of transferred equities.

4.

Rights to be enjoyed and responsibilities to be shouldered by the transferee according to enterprise contracts and articles of association

5.

Responsibilities over breaches.

6.

Laws to be applied and settlement of disputes.

7.

Effectuation and termination of agreements.

8.

The time when and the venue where the agreements are reached.

Article 11

In case of alteration of equities due to reasons specified in the first and second subparagraphs of Article 2 of these Provisions, the special stipulations promulgated by the MOFTEC and the State Administration for Industry and Commerce shall be observed. Apart from submitting documents specified in the first, second, third, fourth and fifth subparagraphs of Article 9 of these Provisions, the enterprise shall also submit agreements on alteration of equities reached between its investors to examination and approval departments.

Article 12

After siging equity pledging contracts with pledgees, the investors of the enterprise shall submit the following documents for examination to examination and approval departments that have approved the establishment of the enterprise:

1.

Resolution of the board of directors and other investors of the enterprise agreeing to the pledging of equities by the pledgor.

2.

Pledging contracts signed between the pledgor and the pledgee.

3.

Certificates of investment by the pledgor.

4.

Report on asset verification presented by Chinese certified public accountants and the accounting firms where they work.

Examination and approval departments shall give approval or disapproval within 30 days after receiving all of the documents specified in the preceding clause.

The enterprise shall, 30 days after winning approval from examination and approval departments to its pledging of equities, go through recording procedures with the original registration departments on the strength of relevant documents of approval.

Pledging behaviours carried out without examination and approval and recording as stipulated in the preceding clause shall be invalid.

Article 13

In line with stipulations in the Guarantee Law, the enterprise shall submit, apart from documents specified in the first, second, third and fifth subparagraphs of Article 9 of these Provisions, valid documents certifying ownership of the equities of the original investors by pledgees or other beneficiaries if the equities transferred are owned by pledgees or other beneficiaries. Examination and approval departments shall carry out examination and give approval according to the documents specified above, documents specified in Article 12 of these Provisions, and stipulations in pertinent laws and regulations.

Article 14

In case of alteration of equities due to reasons specified in the fifth and sixth subparagraphs of Article 2 of these Provisions, the enterprise shall submit, apart from documents specified in the first, second, third and fifth subparagraphs of Article 9 of these Provisions, valid documents certifying the ownership by pledgees of the equities of the original investors to examination and approval departments.

In case of alteration of investors in the enterprise in line with stipulations in the fifth and sixth subparagraphs of Article 2 of these Provisions, the other investors in the enterprise can apply to the examination and approval departments that have originally approved the establishment of the enterprise to terminate the original contracts and articles of association of the enterprise if they do not agree to continuation of business operation. After termination of these contracts and articles of association, the owners of equities shall have the right to take part in liquidation committees and share the properties of the enterprise left over from liquidation. If the owners of equities do not agree to continuation of business operation, they can transfer, with unanimous consent from other investors in the enterprise, their equities to other investors in the enterprise or a third party in line with stipulations in these Provisions.

Article 15

In case of need for alteration of investors or equities due to reasons specified in the seventh subparagraph of Article 2 of these Provisions, the observing party shall have the right to unilaterally apply to examination and approval departments for alteration. The observing investor shall submit, apart from those specified in the first, second, third and fifth subparagraphs of Article 9 of these Provisions, the following documents to examination and approval departments:

1.

Report on asset verification presented by Chinese certified public accountants and the accounting firms where they work.

2.

Documents certifying the observant party's request for the breaching party to pay or complete payment of investment.

In case of purchase of shares by new investors, certificates of legal inauguration of business and certificates of creditability of these new investors shall also be submitted to examination and approval departments. If the breaching party has paid part of the investment in line with the original contract and articles of association of the enterprise, relevant documents concerning liquidation of this part of investment shall also be submitted.

Article 16

If a Chinese investor that has invested with State-owned assets intends to alter its equities, the enterprise shall submit the following documents to examination and approval departments:

1.

Opinion of the department in charge of this Chinese investor about the alteration of the equities of this investor.

2.

Report on asset evaluation presented by departments in charge of evaluation of State-owned assets.

3.

Letter of verification of the above-mentioned report from departments in charge of management of State-owned assets.

Article 17

Examination and approval departments shall give approval or disapproval within 30 days after receiving all of the documents to be submitted according to stipulations.

The enterprise shall go through alteration procedures with examination and approval departments for the certificate of approval of the establishment of enterprises with foreign investment within 30 days after obtaining approval for alteration of equities from examination and approval departments.

If a Chinese investor receives all the equities of the enterprise, it shall hand in the certificate of approval of the establishment of enterprises with foreign investment within 30 days after approval from examination and approval departments for the alteration of the equities of the investor in the enterprise. The examination and approval departments shall notify, within 15 days after revoking the certificate of approval of the establishment of enterprises with foreign investment, the original enterprise registration departments of the revocation.

Article 18

The enterprise shall, within 30 days after equity alteration or revocation of the certificate of approval for the establishment of enterprises with foreign investment, apply to registration departments for alteration registration in accordance with relevant stipulations in the Regulations of the People's Republic of China on Administration of Registration of Enterprise Legal Persons and the Regulations of the People's Republic of China on Administration of Registration of Companies. Those that fail to go through alteration registration with registration departments shall be punished by registration departments in accordance with relevant regulations.

Article 19

When applying for registration of alteration of equities, the enterprise shall present to registration departments relevant departments it has submitted to examination and approval departments, documents of approval from examination and approval departments, and other documents required by registration departments.

In case of alteration of investors or equities due to reasons specified in the seventh subparagraph of Article 2 of these Provisions, documents about the engagement and identification of the members of the enterprise's new board of directors and the resolution of the new board of directors shall be submitted to registration departments, in addition to documents stipulated in Article 15 of these Provisions.

In case of acquirement of all of the equities of the enterprise by a Chinese investor due to alteration of the equities of an investor in the enterprise, the enterprise shall, during its application for alteration registration, submit relevant documents to registration departments according to requirements for the establishment and registration of the kind of enterprises it intends to set up. After examination and approval from registration departments, the Business License of the People's Republic of China for Enterprise Legal Persons shall be revoked and the Business License for Enterprise Legal Persons shall be issued.

Article 20

Agreements on the alteration of equities and agreements on the revision of original enterprise contracts and articles of association shall take effect on the date of issuance of altered certificate of approval for the establishment of enterprises with foreign investment. After effectuation of these agreements, investors in the enterprise shall enjoy rights and shoulder corresponding responsibilities in line with stipulations in these revised enterprise contracts and articles of association.

Article 21

Unless otherwise stipulated in laws and regulations, the transfer of the unlisted shares of limited-liability companies with foreign investment shall be handled with reference to these Provisions.

Article 22

Alteration of equities of investors in enterprises set up in China by companies, enterprises, other types of economic organizations, or individuals from Hong Kong, Macao and Taiwan shall be handled with reference to these Provisions.

Article 23

These Provisions shall enter into force as of the date of promulgation.