Foreign Investment Issues Relating to Listed Companies Several Opinions
关于上市公司涉及外商投资有关问题的若干意见
A set of opinions issued by the Ministry of Foreign Trade and Economic Cooperation on listing and issuing of shares by foreign funded companies limited by shares.
(Issued by the Ministry of Foreign Trade and Economic Cooperation and the China Securities Regulatory Commission on November 5 2001.)
(对外贸易经济合作部、中国证券监督管理委员会于二零零一年十一月五日发布。)
The following Opinions are hereby put forth in order to promote the healthy development of the domestic market for stocks and to regulate the listing of and the issue of shares by foreign-funded companies limited by shares and the entry into stock markets by foreign investment enterprises:
1. Establishment of Foreign-funded Companies Limited by Shares
为了推动境内股票市场的健康发展，规范外商投资股份有限公司上市发行股票和外商投资企业进入股票市场的行为，现提出以下意见：
When establishing a foreign-funded company limited by shares or applying to convert an existing foreign-funded limited liability company into a foreign-funded company limited by shares, the requirements of the Certain Questions on the Establishment of Foreign-funded Companies Limited by Shares Tentative Provisions (Ministry of Foreign Trade and Economic Cooperation (MOFTEC) Order No. 1 of 1995) shall be met and the matter shall be submitted to MOFTEC for examination and approval in accordance with the prescribed submission procedures.
2. Listing of, and Issue of Shares by, Foreign-funded Companies Limited by Shares
一、关于外商投资股份有限公司设立。
(1) A foreign-funded company limited by shares that issues shares domestically (A shares and B shares) must satisfy the policies on foreign investment in industry and the requirements for listing and for issuing shares.
(2) A foreign-funded company limited by shares that intends to make an initial public offering and be listed shall, in addition to satisfying relevant provisions of such laws and regulations as the Company Law and the relevant provisions of the China Securities Regulatory Commission (CSRC), satisfy the following conditions:
设立外商投资股份有限公司或现有的外商投资有限责任公司申请转为外商投资股份有限公司，须符合《关于设立外商投资股份有限公司若干问题的暂行规定》（外经贸部令1995年第1号）的要求并按规定程序报外经贸部审批。
(a) it has passed the annual joint inspection of foreign investment enterprises for each of the three years preceding its listing application;
(b) its scope of business satisfies the requirements of the Directing of Foreign Investment Tentative Provisions and the Foreign Investment Industrial Guidance Catalogue;
二、关于外商投资股份有限公司上市发行股票。
(c) its foreign investment shares will account for not less than 10% of its total share capital after it has been listed and issued shares;
(d) if it is to be a foreign-funded company limited by shares for which provisions require that the Chinese side be the controlling shareholder (including a shareholder with a relatively controlling shareholding) or for which there are special provisions concerning the shareholding ratio of the Chinese side, then the controlling position or the shareholding ratio of the Chinese side required by the relevant provisions shall continue to be maintained after listing; and
（一）外商投资股份有限公司在境内发行股票（A股与B股）必须符合外商投资产业政策及上市发行股票的要求；
(e) it satisfies the other conditions required by relevant laws and regulations on the issue and listing of shares.
(3) When intending to make an initial public offering and be listed, a foreign-funded company limited by shares shall, in addition to submitting the specified materials to the CSRC, submit its foreign-funded company limited by shares approval certificate and business licence that have passed the annual joint inspection.
（二）首次公开发行股票并上市的外商投资股份有限公司，除符合《公司法》等法律、法规及中国证监会的有关规定外，还应符合下列条件：
(4) Additional share offerings and rights issues made by a foreign-funded company limited by shares after its initial public offering shall satisfy the conditions of Paragraph (2) of this article and relevant provisions on additional share offerings and rights issues.
(5) After completion of its initial public offering or an additional public offering, rights issue or issue of bonus shares, a foreign-funded company limited by shares shall carry out the procedures for the amendment of its legal documents with MOFTEC.
1、申请上市前三年均已通过外商投资企业联合年检；
3. When a foreign-funded company limited by shares having B shares applies to make its unlisted foreign investment shares tradable on the B share market, it shall submit to the CSRC an application for listing and trading of its unlisted foreign investment shares after obtaining the consent of MOFTEC.
To apply for the listing and trading of unlisted foreign investment shares, the following conditions shall be satisfied:
2、经营范围符合《指导外商投资方向暂行规定》与《外商投资产业指导目录》的要求；
(1) the holder of the unlisted foreign investment shares proposed to be listed and traded has held the same for a period exceeding one year;
(2) after the unlisted foreign investment shares are converted into tradable shares, their original holder must continue to hold the same for a period exceeding one year;
3、上市发行股票后，其外资股占总股本的比例不低于10％；
(3) if the original holder of the unlisted foreign investment shares has made special undertakings to the company pursuant to the company's articles of association, a shareholders' agreement or another legal instrument or is required by laws or regulations to bear special obligations or responsibilities, he shall act in accordance with his undertakings or obligations; and
(4) the other conditions required by relevant laws and regulations on listing and on the issue of shares shall be satisfied.
4、按规定需由中方控股（包括相对控股）或对中方持股比例有特殊规定的外商投资股份有限公司，上市后应按有关规定的要求继续保持中方控股地位或持股比例；
4. When a foreign investment enterprise (including a foreign-funded company limited by shares) accepts the transfer of non-traded shares of a domestically listed company, it shall carry out the relevant formalities in accordance with the procedures and requirements specified in the Investment Within China by Foreign Investment Enterprises Tentative Provisions.
For the time being, foreign-funded investment companies are prohibited from accepting the transfer of non-traded shares of listed companies.
5、符合发行上市股票有关法规要求的其他条件。
5. If the foreign capital proportion of a foreign-funded company limited by shares' total share capital falls below 25% after the company is listed in China and issues shares, the company shall return its certificate of approval for a foreign investment enterprise and carry out the relevant amendment procedures in accordance with provisions.
If the acceptance of a transfer of non-traded shares of a listed company by a foreign investment enterprise causes the foreign capital proportion of the total share capital of the listed company (being a company in possession of a certificate of approval for a foreign investment enterprise) to fall below 25%, the listed company shall return its certificate of approval for a foreign investment enterprise and carry out the relevant amendment procedures in accordance with provisions.
（三）外商投资股份有限公司首次公开发行股票并上市，除向中国证监会提交规定的材料外，还应提供通过联合年检的外商投资股份有限公司的批准证书和营业执照；
6. Foreign investment enterprises that satisfy the relevant conditions may issue shares abroad.
clp reference:3710/01.11.08promulgated:2001-11-05This premium content is reserved for
China Law & Practice Subscribers.
A Premium Subscription Provides:
- A database of over 3,000 essential documents including key PRC legislation translated into English
- A choice of newsletters to alert you to changes affecting your business including sector specific updates
- Premium access to the mobile optimized site for timely analysis that guides you through China's ever-changing business environment
Already a subscriber? Log In Now