Measures for the Administration of the Funds Involved in the Participation in Equity Incentives of Domestically Listed Companies by Foreign Employees
境内上市公司外籍员工参与股权激励资金管理办法
Hurdles are further removed for foreign employees buying A-shares
(Issued by the People's Bank of China and the State Administration of Foreign Exchange on, and effective as of, January 23, 2019.)
(中国人民银行、国家外汇管理局于二零一九年一月二十三日发布施行。)
1 . These Measures have been formulated pursuant to relevant laws and regulations such as the PRC People's Bank of China Law, the PRC Regulations for the Control of Foreign Exchange and the Measures for the Control of the Foreign Exchange of Individuals (issued with Order of the People's Bank of China [2006] No.3) in order to regulate the administration of funds involved in the participation in A-share equity incentives of domestically listed companies by foreign employees.
一、为规范境内上市公司外籍员工参与A股股权激励资金管理，根据《中华人民共和国中国人民银行法》、《中华人民共和国外汇管理条例》、《个人外汇管理办法》(中国人民银行令〔2006〕第 3 号发布)等相关法律法规规定，制定本办法。
2 . Where a domestically listed company implements equity incentives in accordance with the Measures for the Administration of the Equity Incentives of Listed Companies (issued with Order of the China Securities Regulatory Commission No.148) and foreign employees of such company participate in such equity incentives, the listed company and its foreign employees shall carry out relevant matters, such as registration and fund transfer, in accordance herewith.
二、境内上市公司按照《上市公司股权激励管理办法》(中国证券监督管理委员会令第148号发布)实施股权激励，涉及境内上市公司外籍员工参与股权激励的，境内上市公司及其外籍员工应当按照本办法办理登记及资金划转等有关事项。
3 . The People's Bank of China and its (sub-)branches shall monitor, administer and inspect renminbi matters relating to the participation in equity incentives of domestically listed companies by foreign employees. The State Administration of Foreign Exchange and its (sub-)branches shall monitor, administer and inspect foreign exchange matters relating to the participation in equity incentives of domestically listed companies by foreign employees.
三、中国人民银行及其分支机构对境内上市公司外籍员工参与股权激励所涉人民币业务实施监督、管理和检查。国家外汇管理局及其分支机构对境内上市公司外籍员工参与股权激励所涉外汇业务实施监督、管理和检查。
4 . The State Administration of Foreign Exchange subjects the participation in equity incentives of domestically listed companies by foreign employees to administration by means of registration. The foreign employees of a domestically listed company shall altogether entrust the company implementing the equity incentives to centrally carry out the relevant registration procedures.
四、国家外汇管理局对境内上市公司外籍员工参与股权激励实行登记管理。境内上市公司外籍员工应当集中委托实施股权激励的境内上市公司统一办理相关登记。
5 . When the foreign employees of a domestically listed company participate in its equity incentives, the listed company shall, within 30 days after the announcement of its equity incentive plan, carry out registration of the participation in the equity incentives of a domestically listed company by foreign employees with the branch/office of the State Administration of Foreign Exchange of the place where it is located (the Forex Authority) on the strength of the following materials:
五、境内上市公司外籍员工参与股权激励的，境内上市公司应当在对股权激励计划进行公告后的30日内，持以下材料，在境内上市公司所在地国家外汇管理局分局、外汇管理部(以下简称所在地外汇局)，统一办理境内上市公司外籍员工参与股权激励登记：
(1) a written application, including but not limited to the basic particulars of the domestically listed company, the basic details of its equity incentive plan, the amount to be remitted inward in connection with the participation in its equity incentives by the foreign employees, etc.;
(一) 书面申请，包括但不限于境内上市公司基本情况，股权激励计划基本情况，境内上市公司外籍员工参与股权激励的计划汇入金额等。
(2) a Registration Form for the Participation in the Equity Incentives of a Domestically Listed Company by Foreign Employees (see Annex 1);
(二)《境内上市公司外籍员工参与股权激励登记表》。
(3) evidentiary materials, such as the relevant announcements of the domestically listed company, attesting to the genuineness of the equity incentive plan;
(三) 境内上市公司相关公告等能够证明股权激励计划真实性的证明材料。
(4) a letter of undertaking issued by the domestically listed company to the effect that the employment or service relationship with its foreign employees is genuine (accompanied by a list, the types of ID documents and the ID document numbers of the foreign employees participating in the equity incentive plan, the type of equity incentive plan involved, etc.); and
(四) 境内上市公司出具的外籍员工与其雇佣或劳务关系属实的承诺函(附参与股权激励计划的外籍员工名单、身份证件类型、身份证件号码、所涉及股权激励类型等)。
(5) other materials the provision of which the Forex Authority requires.
(五) 所在地外汇局要求提供的其他材料。
After the Forex Authority reviews the aforementioned materials and finds them in order, it shall issue to the domestically listed company the appropriate registration certificate for the participation in the equity incentives of a domestically listed company by foreign employees (the Registration Certificate). The domestically listed company shall, on the strength of the Registration Certificate, and its foreign employees shall, on the strength of photocopies of the Registration Certificate, carry out cross-border receipt and payment, fund transfer and conversion matters relating to the participation in the domestically listed company's equity incentives by the foreign employees.
所在地外汇局审核上述材料无误后，为境内上市公司出具相应的境内上市公司外籍员工参与股权激励业务登记凭证(以下简称业务登记凭证)。境内上市公司凭业务登记凭证、外籍员工凭业务登记凭证复印件办理境内上市公司外籍员工参与股权激励相关跨境收支、资金划转及汇兑业务。
6 . The funds required for the participation in the equity incentives of a domestically listed company by a foreign employee may come from his/her revenue lawfully sourced in China or, alternatively, from funds remitted inward from abroad.
六、境内上市公司外籍员工参与股权激励所需资金，可以来源于其在境内的合法收入，也可以来源于从境外汇入的资金。
7 . Where a foreign employee of a domestically listed company participates in its equity incentives with funds remitted inward from abroad, he/she shall remit the funds from abroad into the domestically listed company's account or into his/her personal bank settlement account.
七、境内上市公司外籍员工从境外汇入资金参与股权激励的，外籍员工应当将资金从境外汇入至境内上市公司账户或外籍员工个人银行结算账户。
Where a foreign employee participates in equity incentives using the funds in his/her domestic foreign currency account, he/she shall, after converting the funds, transfer the same into the domestically listed company's account or into his/her personal bank settlement account.
外籍员工使用其境内外币账户内的资金参与股权激励的，外籍员工应将资金结汇后划入境内上市公司账户或外籍员工个人银行结算账户。
Once the bank has checked the Registration Certificate, it shall carry out the account crediting procedures, or conversion and account crediting procedures, for the domestically listed company or its foreign employee based on the information contained in the relevant controlled information form of the State Administration of Foreign Exchange's capital account information system.
银行审核业务登记凭证后，依据国家外汇管理局资本项目信息系统相关控制信息表的内容，为境内上市公司或其外籍员工办理入账或结汇入账手续。
8 . If a foreign employee of a domestically listed company wishes to remit abroad proceeds from the sale of shares or equity under the equity incentives or dividends derived from his/her participation in the equity incentives, or purchase foreign exchange therewith and transfer the same into his/her domestic foreign currency account, he/she may carry out the outward remittance or foreign exchange purchase and transfer with the bank on the strength of the following materials:
八、境内上市公司外籍员工需将出售股权激励项下股票或权益资金、参与股权激励项下分红派息所得资金汇出境外或购汇划转至其境内外币账户的，可凭以下材料在银行办理汇出或购汇划转：
(1) a Registration Certificate;
(一) 业务登记凭证。
(2) his/her ID document (his/her ID document shall be consistent with the type of ID document and ID document number provided on the Registration Form for the Participation in the Equity Incentives of a Domestically Listed Company by Foreign Employees at the time the domestically listed company carried out registration);
(二) 外籍员工身份证明(外籍员工身份证明应当与境内上市公司办理登记时，在《境内上市公司外籍员工参与股权激励登记表》中填写的身份证件类型和身份证件号码一致)。
(3) the document issued by the securities company attesting to the domestic transaction by the foreign employee under the equity incentives or proof of the dividends being credited to his/her securities account; and
(三) 证券公司出具的股权激励项下外籍员工境内交易证明文件或证券账户红利股息入账凭证。
(4) other genuineness related supporting documentation required by the bank.
(四) 银行要求的其他真实性证明材料。
9 . If, after a foreign employee of a domestically listed company has remitted funds from abroad to participate in its equity incentive plan, the conditions for unlocking the restricted shares do not materialize or the stock options are not exercised, the domestically listed company or its foreign employee may return abroad the funds remitted inward by the foreign employee on the strength of the following materials:
九、境内上市公司外籍员工从境外汇入资金参与股权激励计划后，限制性股票解锁条件未达成，或股票期权未行权的，境内上市公司或其外籍员工可凭以下材料，将外籍员工汇入资金退回境外。
(1) a Registration Certificate;
(一)业务登记凭证。
(2) relevant genuineness related supporting documentation, such as the announcement by the domestically listed company that it is buying back the restricted shares under the equity incentives; and
(二)境内上市公司回购股权激励项下限制性股票的公告等相关真实性证明材料。
(3) proof that the foreign employee remitted the funds inward from abroad.
(三)外籍员工从境外汇入资金的证明。
10 . When a domestically listed company or a foreign employee thereof carries out the cross-border receipt or payment of funds under the equity incentives, it/he/she shall carry out international receipt and payment reporting in accordance with provisions such as the Measures for Reporting Statistics on International Receipts and Payments and the Implementing Rules for Reporting Statistics on International Receipts and Payments Through Banks (Hui Fa [2015] No.27).
十、境内上市公司或其外籍员工办理股权激励项下资金跨境收付时，应当按《国际收支统计申报办法》、《通过银行进行国际收支统计申报业务实施细则》(汇发〔2015〕27号文印发)等规定进行国际收支申报。
A bank shall, in accordance with the Data Reporting Specifications (see Annex 2), completely and accurately submit data relating to the cross-border receipt, payment and conversion of funds under the participation in equity incentives of domestically listed companies by foreign employees in a timely manner.
银行应当按照数据申报规范，完整、准确、及时地报送境内上市公司外籍员工参与股权激励项下资金跨境收付及汇兑的相关数据。
A bank shall accurately and completely submit renminbi cross-border receipt and payment information to the renminbi cross-border receipt and payment information management system in a timely manner in accordance with the relevant management requirements of the renminbi cross-border receipt and payment information management system.
银行应当按照人民币跨境收付信息管理系统相关管理要求，及时、准确、完整地向人民币跨境收付信息管理系统报送人民币跨境收支信息。
11 . If an announced material change to an equity incentive plan occurs or if a change in the information of a foreign employee of a domestically listed company participating in its equity incentive plan occurs, the domestically listed company shall, on the strength of a written application, the original Registration Certificate, a newly completed Registration Form for the Participation in the Equity Incentives of a Domestically Listed Company by Foreign Employees and genuineness related supporting documents such as the relevant announcement, carry out with the Forex Authority registration amendment of the participation in the equity incentives of the domestically listed company by foreign employees within 30 days after the announcement.
十一、股权激励计划发生已公告的重大变更或参与该股权激励计划的境内上市公司外籍员工信息发生变化的，境内上市公司应当在公告后 30 日内，持书面申请、原业务登记凭证、最新填写的《境内上市公司外籍员工参与股权激励登记表》以及相关公告等真实性证明材料，到所在地外汇局办理境内上市公司外籍员工参与股权激励变更登记。
12 . If a domestically listed company terminates its implementation of equity incentives and no foreign employee has exercised his/her rights, it shall, on the strength of a written application, the original Registration Certificate and genuineness related supporting documents such as the relevant announcement, cancel with the Forex Authority the registration of the participation in the equity incentives of the domestically listed company by foreign employees within 30 days after the announcement.
十二、境内上市公司终止实施股权激励且无外籍员工行使权益的，境内上市公司应当在公告后30日内，持书面申请、原业务登记凭证、相关公告等真实性证明材料，到所在地外汇局办理境内上市公司外籍员工参与股权激励注销登记。
13 . A foreign employee of a domestically listed company who participates in its equity incentives shall comply with these Measures and the provisions of relevant departments, such as the China Securities Regulatory Commission. Such an employee may not violate these Measures or the provisions of a relevant department, such as the China Securities Regulatory Commission, by engaging in other securities trading activities.
十三、境内上市公司外籍员工参与股权激励，应当符合本办法及中国证券监督管理委员会等相关部门的规定。不得违反本办法及中国证券监督管理委员会等相关部门的规定，从事其他证券交易活动。
14 . If a domestically listed company, a foreign employee thereof or a bank violates these Measures in the course of handling matters relating to the participation by such employee in the domestically listed company's equity incentives, the People's Bank of China and the State Administration of Foreign Exchange and its (sub-)branches shall impose penalties in accordance with relevant provisions.
十四、境内上市公司、外籍员工及银行在办理境内上市公司外籍员工参与股权激励业务过程中违反本办法的，中国人民银行、国家外汇管理局及其分支机构按照相关规定进行处罚。
15 . Where a Hong Kong, Macao or Taiwanese employee of a domestically listed company participates in its equity incentives, matters shall be handled with reference hereto.
十五、境内上市公司港澳台员工参与境内上市公司股权激励的，参照本办法执行。
16 . The People's Bank of China and State Administration of Foreign Exchange are responsible for the interpretation of these Measures.
十六、本办法由中国人民银行、国家外汇管理局负责解释。
17 . These Measures shall be effective as of the date of issuance. In the event of a discrepancy between these Measures and other relevant administrative provisions, these Measures shall prevail.
十七、本办法自印发之日起实施。其他相关管理规定与本办法不一致的，以本办法为准。
Annexes:
附：
1 . Registration Form for the Participation in the Equity Incentives of a Domestically Listed Company by Foreign Employees (omitted)
1.境内上市公司外籍员工参与股权激励登记表 (略)
2 . Data Reporting Specifications for Cross-border Receipts and Payments/Conversion and Sale of Foreign Exchange Relating to the Participation in the Equity Incentives of a Domestically Listed Company by Foreign Employees (omitted)
clp reference:3800/19.01.23 issued:2019-01-23 effective:2019-01-232.境内上市公司外籍员工参与股权激励所涉跨境收支/结售汇数据申报规范 (略)
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