Laws of the People's Republic of China

The State Science and Technology Commission, the State Administration for Industry and Commerce

Circular of the State Science and Technology Commission and the State Administration for Industry and Commerce Issuing the Provisions on Several Issues Concerning the Use of High and New Technology Achievements as Investment for Shares

GuoKeFaZhengZi [1997] No.326

July 4, 1997

To standardize the behavior of using the high and new technology achievements as investment for shares and to promote the development of high and new technology industry, we drafted the Provisions on Several Issues Concerning the Use of High and New Technology Achievements As Investment for Shares according to Company Law and other related laws and regulations. The circular is hereby issued to you for complementation, please notify the problem in complementation in time. Attachment:Provisions on Several Issues Concerning the Use of High and New Technology Achievements as Investment for Shares

Article 1

These Provisions are formulated in accordance with the Company Law and other laws and regulations and for the purposes of standardizing the acts of using high and new technology achievements as investment for shares and promoting the development of the high and new technology industry.

Article 2

These Provisions apply to the use of high and new technology achievements as investment into incorporated companies for shares.

Article 3

When high and new technology achievements are used as investment for shares, the total amount priced may exceed 20% of the company's registered capital and may not exceed 35%.

Article 4

A high and new technology achievement used as investment for shares shall meet the following requirements:

(1)

falling into the range of high and new technologies published by the State Science and Technology Commission;

(2)

being the core technology for the company's main products;

(3)

having the lawful right of disposition over the said technology by the contributor of the technology achievement and guaranteeing the company's property right and non-patent technology over the said technology; and

(4)

having been acknowledged by the State Science and Technology Commission or the science and technology administration department at the provincial level.

Article 5

The science and technology administration departments acknowledge high and new technologies within the following scope:

(1)

microelectronic science and electronic information technology;

(2)

space science and aerospace technology;

(3)

photoelectric science and optical-mechanical-electric technology;

(4)

life science and bioengineering;

(5)

materials science and new material technology;

(6)

energy science and new energy and highly energy-saving technology;

(7)

ecology and environmental protection technology;

(8)

geoscience and oceanographic engineering technology;

(9)

basic substance science and radioactive technology;

(10)

medical science and bioengineering technology; and

(11)

new techniques and new technologies applied on the basis of other traditional industries.

This scope of high and new technologies is supplemented and modified by the State Science and Technology Commission in accordance with the development of high and new technologies at home and abroad.

Article 6

When a high and new technology achievement is used as investment for shares, the contributor of the achievement shall, through agreement with other contributors, stipulate the applicable scope of the said achievement invested as shares, the scope of rights reserved by the contributor of the said achievement over the said technology and responsibilities for breach of agreement.

Article 7

High and new technology achievements invested as shares must be evaluated and priced by the evaluation organizations registered at the administrative organs for industry and commerce. The evaluation results of State-owned assets shall be subject to the acknowledgment procedures if they are required to be acknowledged by the relevant competent administrative departments according to law. If the amount priced exceeds 20% of the company's registered capital, the following documents must be submitted to the science and technology administration departments at and above the provincial level for acknowledgment:

(1)

a written application for investment as shares on the technology achievement, including the right status of the technology achievement, information about the transfer of its use right and the utilization results;

(2)

documentary evidences proving the contributor's rights over the said technology achievement, including such related legal instruments as patent certificate, software registration certificate, registration certificate of new species of plants, transfer contract of patent right and technology contract;

(3)

agreement on technology investment as shares and the company's approval or production plans on utilizing the said achievement;

(4)

an evaluation report on the value of the technology achievement and non-State own acknowledgment; and

(5)

other documents required by the science and technology administration department.

Article 8

After examination and acknowledgment by the science and technology administration department, shareholders of the company shall reach an agreement on the amount priced on the said high and new technology used as investment for shares, and shall write the said high and new technology and its equivalent amount of investment into the articles of association.

Article 9

Shareholders of the company shall, according to the State's provisions on the registration for the establishment or change of incorporated companies and by presenting the examination and acknowledgment documents and other documents on high and new technology investment as shares issued by the science and technology administration department at or above the provincial level, proceed to the administrative organ for industry and commerce to go through the registration for the establishment or change of the company.

Article 10

After the establishment of the company, the contributor of high and new technology achievement as investment for shares shall, according to the contribution agreement, go through the right transfer procedures of the said high and new technology achievement, provide technical materials and assist the application and implementation of the said high and new technology achievement. If a contributor, in violation of the agreement, fails to perform his obligations in delivering the high and new technology achievement, or uses the said achievement in excess of the scope of rights reserved for the said technology achievement as stipulated in the agreement, he shall be liable for breach of agreement to other contributors.

Article 11

Evaluators and related persons in charge of the examination and registration of the high and new technology achievements as investment for shares shall keep confidential the technical secrets and commercial secrets for the contributors.

Article 12

If both the Chinese and foreign parties to Chinese-foreign equity joint ventures and Chinese-foreign joint contractual ventures use high and new technology achievements to invest or to provide cooperation conditions, these Provisions apply; and high and new technology achievements shall be contributed in a single installment according to the term of contribution.

Article 13

If non-company science and technology development enterprises with legal person status use high and new technology achievements as investment for shares, they are governed by reference to these Provisions.

Article 14

These Provisions are interpreted by the State Science and Technology Commission and the State Administration for Industry and Commerce.

Article 15

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