对外贸易经济合作部、国家工商行政管理局外商投资企业投资者股权变更的若干规定 MOFTEC and SAIC, Changes in Equity Interest of Investors in Fo

[1997]外经贸法发第267号
（Promulgated by the Ministry of Foreign Trade and Economic Co-operation and the State Administration for Industry and Commerce on， and effective as of， 28 May 1997.）
颁布日期：19970528 　实施日期：19970528 　颁布单位：对外贸易经济合作部、 国家工商行政管理局

　　Article 1　These Provisions are formulated in accordance with the PRC， Company Law， the PRC， Sino-foreign Equity Joint Venture Law， the PRC， Sino-foreign Co-operative Joint Venture Law and the PRC， Wholly Foreign-owned Enterprise Law and other relevant laws and regulations， in order to promote the healthy development of foreign investment enterprises， to safeguard the lawful rights and interests of all investing parties and to protect the social and economic order.

　　Article 2　For the purpose of these Regulations， the term “changes in equity interest of investors in foreign investment enterprises” shall refer to changes that occur in investors in Sino-foreign equity joint ventures， Sino-foreign co-operative joint ventures or wholly foreign-owned enterprises （“Enterprises”） established in China under Chinese laws or changes that occur in the shares of capital contributions （including co-operation conditions provided） （“Equity Interests”） of investors in Enterprises. The above includes but is not limited to changes in the Equity Interest of investors in foreign investment enterprises caused by the following main reasons：

　　1. Equity Interest is assigned through an agreement between the investors in the Enterprise；

　　2. an investor in the Enterprise assigns its Equity Interest to its affiliate or another assignee with the consent of all other investors；

　　3. the registered capital of the Enterprise is adjusted through an agreement between the investors in the Enterprise， resulting in a change in the Equity Interests of all the investors；

　　4. an investor in the Enterprise， with the consent of all the other investors， pledges its Equity Interest to a creditor， and the pledgee or beneficiary acquires such Equity Interest in accordance with the provisions of the law or the stipulations of the contract；

　　5. an investor in the Enterprise becomes bankrupt， is dissolved， is abolished， is closed down or dies， or its successor， creditor or other beneficiary acquires the Equity Interest of such investor according to law；

　　6. an investor in the Enterprise is merged or divided， and its successor after the merger or division inherits the Equity Interest of the original investor according to law； or

　　7. an investor in the Enterprise fails to perform its obligation to contribute capital as prescribed in the contract and articles of association and， with the approval of the original examination and approval authority， the investor is replaced or the Equity Interest changed.

　　Article 3　Any change in the Equity Interest of an investor in an Enterprise shall conform with the relevant Chinese laws and regulations and be subject to approval by the examination and approval authority in accordance with these Provisions， whereupon the registration with the registration authority shall be changed in accordance with these Regulations. Any changes in Equity Interest that have not been approved by the examination and approval authority shall be invalid.

　　Article 4　Changes in the Equity Interests of investors in Enterprises must conform with the provisions of Chinese laws and regulations on the qualifications of investors and with industrial policy requirements.

　　In industries where the Foreign Investment Industrial Guidance Catalogue does not permit wholly foreign-owned enterprises， a change in Equity Interest may not result in a foreign investor's holding the entire Equity Interest in the Enterprise. If an Enterprise becomes a wholly foreign-owned enterprise due to a change in Equity Interest， the Enterprise must also conform with the conditions for the establishment of a wholly foreign-own

ed enterprise specified in the PRC， Wholly Foreign-owned Enterprise Implementing Rules （“the WFOE Rules”）。

　　In industries where State-owned assets are required to form the controlling interest or occupy a dominant position， a change in Equity Interest may not result in a situation where a foreign investor or another entity that is not a Chinese State-owned enterprise holds a controlling interest or occupies a dominant position.

　　Article 5　A change in the Equity Interest of an investor in an Enterprise may not result in the investment ratio of the foreign investor being lower than 25% of the registered capital of the Enterprise， unless the foreign investor assigns its entire Equity Interest to the Chinese investor.

　　Article 6　With the consent of the other investors in the Enterprise， an investor that makes a capital contribution may pledge to a pledgee the Equity Interest formed by the paid-up portion of its capital contribution in accordance with the relevant provisions of the PRC， Security Law （“the Security Law”）， by signing a pledge contract and obtaining the approval of the examination and approval authority. An investor may not pledge Equity Interest in any portion of its capital contribution that has not yet been paid up. An investor may not pledge its Equity Interest to the Enterprise invested in.

　　During the period of pledge， the pledging investor's status of investor in the Enterprise does not change. The pledgee may not assign the pledged Equity Interest without the consent of the pledging investor and the other investors in the Enterprise. The pledging investor may not assign or re-pledge the Equity Interest that it has already pledged.

　　The rights and obligations of the pledging investor and the pledgee and the provisions of the pledge contract shall be governed by the relevant laws and regulations and the relevant provisions of these Provisions.

　　Article 7　The authority for examination and approval of a change in Equity Interest of an investor in an Enterprise shall be the examination and approval authority that approved the establishment of the Enterprise. If the Equity Interest of a Chinese investor in a Sino-foreign equity or co-operative joint venture changes， causing the Enterprise to become a wholly foreign-owned enterprise， and such Enterprise belongs to an industry in which the establishment of wholly foreign-owned enterprises is restricted as specified in Article 5 of the WFOE Rules， the change in the Equity Interest of the Chinese investor in such Enterprise shall be subject to approval by the Ministry of Foreign Trade and Economic Co-operation of the PRC （“MOFTEC”）。

　　If an increase in the registered capital of an Enterprise leads to a change in the Equity Interests of the investors in the Enterprise and results in a situation where its total amount of investment exceeds the limit of authority for examination and approval of the original examination and approval authority， the change in the Equity Interests of the investors in the Enterprise shall be reported to a higher examination and approval authority for examination and approval in accordance with the limits of authority for examination and approval and the relevant regulations.

　　The authority for registration of a change in the Equity Interest of an investor in an Enterprise shall be the original registration authority. A change in Equity Interest that has been approved by MOFTEC shall be registered by the State Administration for Industry and Commerce or， upon entrustment by the State Administration for Industry and Commerce， the original registration authority.

　　Article 8　When the Equity Interest of a Chinese investor that had invested State-owned assets changes， a value appraisal of the Equity Interest that needs to be changed must be carried out by the relevant State-owned assets appraisal authority， and confirmed by the administration authority for State-owned ass

ets. The confirmed appraisal results shall be the basis for valuing the Equity Interest to be changed.

　　Article 9　If Equity Interest needs to be changed for a reason set forth in Items （1） and （2） of Article 2 hereof， the Enterprise shall submit the following documents to the examination and approval authority：

　　1. an application for change in the Equity Interest（s） of the investor（s）；

　　2. the original contract for and articles of association of the Enterprise， and the amendment agreements therefor；

　　3. photocopies of the approval certificate and business licence of the Enterprise；

　　4. the resolution of the Board of Directors of the Enterprise concerning the change in Equity Interest（s） of the investor（s）；

　　5. the list of the members of the Board of Directors after the Equity Interest（s） of the investor（s） in the Enterprise investor has （have） changed；

　　6. the Equity Interest assignment agreement executed between the assignor and the assignee and signed or otherwise confirmed in writing by the other investors； and

　　7. other documents that the examination and approval authority requires to be submitted.

　　Article 10　An Equity Interest assignment agreement shall include the following particulars：

　　1. the names and domiciles of the assignor and assignee， and the names， positions and nationalities of their legal representatives；

　　2. the share accounted for by， and the price of， the assigned Equity Interest；

　　3. the time limit for settlement and the form of the Equity Interest assignment；

　　4. the rights and obligations of the assignee under the contract for and articles of association of the Enterprise；

　　5. liability for breach of contract；

　　6. governing law and settlement of disputes；

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