Circular on Issues Relevant to the Conversion of Unlisted Foreign Investment Shares of Foreign-invested Companies Limited by Shares into Tradable B-shares
关于外商投资股份有限公司非上市外资股转B股流通有关问题的通知
Conversion of unlisted foreign investment shares into tradable B-shares streamlined.
(Issued by the Ministry of Commerce on July 30 2008.)
(商务部于二零零八年七月三十日公布。)
Shang Zi Han [2008] No.59
商资函〔2008〕59号
Departments in charge of commerce of the provinces, autonomous regions, municipalities directly under the central government and cities with independent development plans:
各省、自治区、直辖市及计划单列市商务主管部门：
With a view to promoting the healthy development of the domestic securities market, the relevant state departments have revised the examination procedure for applications for the listing and trading of foreign investment shares of Sino-foreign equity joint B-share companies that, before offering and listing, were unlisted (Conversion of Unlisted Foreign Investment Shares into Tradable B-shares). In order to duly carry out the harmonisation work following the revision of the relevant polices and procedures, we hereby notify you of relevant issues as follows:
为推动境内证券市场的健康发展，国家有关部门对发行上市前属于中外合资企业的B股公司非上市外资股上市流通申请（以下简称非上市外资股转B股流通）的审核程序做了调整，为做好相关政策和程序调整后的衔接工作，现就有关问题通知如下：
1. The unlisted foreign investment shares of foreign-invested companies limited by shares that include B-shares shall be permitted to be converted and traded on the B-share market (Conversion of Unlisted Foreign Investment Shares into Tradable B-shares). The Conversion of Unlisted Foreign Investment Shares into Tradable B-shares shall be handled in accordance with the Several Opinions on Foreign Investment Issues Relating to Listed Companies (Wai Jing Mao Zi Fa [2001] No.538) issued by the former Ministry of Foreign Trade and Economic Cooperation and the China Securities Regulatory Commission on October 8 2001.
一、允许含有B股的外商投资股份有限公司非上市外资股转在B股市场上流通（以下简称非上市外资股转B股流通）。非上市外资股转B股流通应按照原外经贸部和证监会于2001年10月8日发布的《关于上市公司涉及外商投资有关问题的若干意见》（外经贸资发〔2001〕538号》执行。
2. For the purposes of the preceding Article, the term “foreign-invested joint stock limited company” means a foreign-invested joint stock limited company whose establishment has been approved in accordance with the law. The unlisted foreign investment shares of a foreign-invested joint stock limited company whose establishment has not been approved in accordance with the law may not be converted and traded on the B-share market.
二、前款所述外商投资股份有限公司是指经依法批准设立的外商投资股份有限公司。未经依法批准设立的外商投资股份有限公司的非上市外资股不得转在B股市场上流通。
3. The Conversion of Unlisted Foreign Investment Shares into Tradable B-
Shares shall, in addition to satisfying the requirements of the state in respect of the listing and offering of shares, satisfy the following conditions:
三、非上市外资股转B股流通除满足国家关于上市发行股票的要求外还应符合下列条件：
(1) the applicant shall be a foreign-invested joint stock limited company established in accordance with provisions and procedures;
（一）申请人应为按规定和程序设立的外商投资股份有限公司；
(2) the applicant shall comply with industrial policies for foreign investment;
（二）申请人应符合外商投资产业政策；
(3) if, pursuant to the requirements of the applicant's articles of association, shareholder agreement, other legal document or laws or regulations, the holder of the unlisted foreign investment shares to be converted into tradable B-shares bears special obligations and responsibilities (including but not limited to providing a shareholder loan, providing security for a loan, technology transfer, trademark licence, etc.), the application for the Conversion of Unlisted Foreign Investment Shares into Tradable B-shares may only be made after the aforementioned obligations and responsibilities have been performed;
（三）拟转B股流通的非上市外资股股东如依照申请人章程、股东协议及其他法律文件和法律法规要求承担特殊义务和责任的（包括但不限于提供股东贷款、提供贷款担保、技术转让、商标许可，等等），应在履行完上述义务和责任后方可申请非上市外资股转B股流通；
(4) during the two years preceding the application, the applicant has passed the joint annual inspection of foreign-invested enterprises, and it is engaged in normal production and business activities in accordance with the scope of business specified on its business licence and the trading in its shares is normal;
（四）申请人申请前两年内均已通过外商投资企业联合年检，且按照营业执照载明的经营范围从事正常的生产经营活动，公司股票交易正常；
(5) the holder of the unlisted foreign investment shares to be converted into tradable B-shares has held the same for more than one year; and
（五）拟转B股流通的非上市外资股股东持有该非上市外资股的期限超过一年；
(6) after the unlisted foreign investment shares are converted into tradable shares, the original shareholder must continue to hold the same for a period of more than one year.
（六）非上市外资股转为流通股后，其原股东继续持有的期限须超过一年。
4. The Conversion of Unlisted Foreign Investment Shares into Tradable B-shares shall be carried out in accordance with the following procedure:
四、非上市外资股转B股流通按以下程序办理：
(1) the applicant shall submit an application to the provincial-level department in charge of commerce of the place where it is located;
（一）申请人向所在地省级商务主管部门提出申请；
(2) the provincial-level department in charge of commerce of the place where the applicant is located shall complete its preliminary examination within 15 days from the date of receipt of the application; if it approves the application, it shall forward the same to the Ministry of Commerce for examination, and if it withholds its approval, it shall give the reasons therefor in writing;
（二）申请人所在地省级商务主管部门应在接到申请之日起15日内完成初审。审核同意的，转报商务部审核；不同意的，书面说明理由；
(3) the Ministry of Commerce shall inform the forwarding department of its comments upon examination in writing within 30 days from the date of receipt of the application materials;
（三）商务部应在接到申请材料之日起30日将审核意见以书面形式告知转报部门；
(4) if the Ministry of Commerce gives its approval, the applicant shall collect its new Foreign-invested Enterprise Approval Certificate from the Ministry of Commerce after issuing the relevant announcement and completing the relevant procedures with the stock exchange; and
（四）经商务部审核同意的，申请人应在发布相关公告，并到交易所办理完毕相关手续后，到商务部换领《外商投资企业批准证书》。
(5) the applicant shall apply for, and carry out the procedures for, the amendment of its registration with the administration for industry and commerce within 30 days from the date of collecting its new Foreign-invested Enterprise Approval Certificate.
（五）申请人应在换领《外商投资企业批准证书》之日起30日内向工商行政管理部门申请办理变更登记手续。
5. The application materials mentioned in Item (3) of Article 4 hereof refer to the following:
五、本通知第四条第（三）款所述的申请材料是指：
(1) the documents (including comments upon preliminary examination) forwarded by the provincial-level department in charge of commerce of the place where the applicant is located;
（一）申请人所在地省级商务主管部门的申报文件（含初审意见）；
(2) the applicant's application letter for the Conversion of Unlisted Foreign Investment Shares into Tradable B-shares;
（二）申请人关于非上市外资股转B股流通的申请书；
(3) the resolutions of the applicant's shareholders' general meeting concerning the Conversion of Unlisted Foreign Investment Shares into Tradable B-shares and amendment of the articles of association;
（三）申请人股东大会关于非上市外资股转B股流通的决议和关于章程修改的决议；
(4) the resolutions of the board of directors of the applicant;
（四）申请人董事会决议；
(5) the (original of the) proposed amendments to the articles of association of the applicant and (a photocopy of) the existing articles of association;
（五）申请人章程修改草案（正本）及原章程(复印件)；
(6) a written statement as to whether the holder of the unlisted foreign investment shares to be converted into tradable B-shares bears special obligations and responsibilities; if it does bear such obligations and responsibilities, a written description of the status of the performance thereof or a written undertaking that it will continue to perform the same;
（六）拟转B股流通的非上市外资股股东关于是否承担特殊义务和责任的书面声明。承担特殊义务和责任的，应书面说明履行情况或书面承诺继续履行相关义务和责任；
(7) proof that the applicant underwent the joint annual inspection during the two years preceding the application;
（七）申请人申请前两年内联合年检证明；
(8) written proof issued by the applicant evidencing that the holder of the unlisted foreign investment shares to be converted into tradable B-shares has held the same for more than one year;
（八）申请人出具的拟转B股流通的非上市外资股股东持有该非上市外资股的期限超过一年的书面证明；
(9) a written undertaking by the holder of the unlisted foreign investment shares to be converted into tradable B-shares that, after the conversion thereof into tradable shares, it will continue to hold the same for a period of at least one year; and
（九）拟转B股流通的非上市外资股股东出具的关于非上市外资股转为流通股后继续持有一年以上的书面承诺；
(10) photocopies of the applicant's Foreign-invested Enterprise Approval Certificate and business licence.
（十）申请人的《外商投资企业批准证书》和《营业执照》复印件。
6. The Supplementary Circular on Issues Concerning the Conversion of Unlisted Foreign Investment Shares of Foreign-invested Companies Limited by Shares into Tradable B-shares (Wai Jing Mao Zi Yi Han [2002] No.902) shall be repealed as of the date of issuance hereof.
clp reference:3710/08.07.30prc reference:商资函 〔2008〕 59号promulgated:2008-07-30六、《非上市外资股转B股流通有关问题的补充通知》（外经贸资一函〔2002〕902号）从本通知发布之日起废止。
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