Article 10 All application documents submitted shall be in Chinese. When deemed necessary, the documents can also be written in a foreign language, but the approved and effective Chinese version shall dominate.
Article 11 The application for the establishment of a company shall briefly define:
1. The promoters' title, residence and legal representatives;
2. The name, site and purpose of the company to be established;
3. The establishment form of the company, total shares, share categories, face value of each share, the proportion of share purchased by the promoters, scope and channels for the shares' sales;
4. Performance of the promoters in production and operation, including production, assets and liabilities, and profits, in the past three consecutive years. (This only applies to companies established through public offer);
5 . The company's investment orientation and scope of operation;
6. The time of application, signatures of the promoters' as well as the seal of the promotors' units;
7. Other items deemed necessary.
Article 12 Promoters' agreement shall define:
1. Name and residence of promoters, and the names, nationality, residence and title of the promoters' legal representatives;
2. The name and site of the company to be established;
3. Purpose and business scope of the company to be established;
4. The form of the company's establishment and organization;
5. The company's registered capital, total shares, share categories, amounts, forms and expiration date of shares subscribed by promoters;
6. The rights and obligations of promoters;
7. Responsibilities for violating the agreement;
8. Applicable laws and regulations and how to settle disputes;
9. The agreement's effective date and expiration;
10. The time and site of signing of the agreement, with the signatures of the promoters;
11. Other items deemed necessary.
Article 13 Within 30 days after the approval of the agreements, articles of association of a company by MOFTEC, the promoters shall open a special bank account by presenting documents of the approval and pay in a lump sum the total value of the subscription of the shares within 90 days after the issuance of the approval. The promoters shall bear joint liability of the company before paying the total value of the subscription of the shares. Whereas the company fails to start up, the promoters shall be responsible for the expense incurred during the process of seeking the company's establishment as well as other joint liabilities.
Article 14 For companies set up through promotion, the promoters, after paying the total value of the subscription of the shares as stipulated in Article 11, shall establish a board of directors and a board of supervisors. The board of directors shall present establishment approval document, the articles of association and certificate of the assets of the company to competent departments for the registration of the company's establishment.
For companies set up through public offer, the promoters, after paying the total value of the subscription of the shares, shall acquire certificates testifying the company's assets from legal institutions responsible for testifying assets and liabilities. Within 30 days of the certificate's issuance, the promoters shall convene an establishment meeting and establish a board of directors and a board of supervisors. The board of directors, within 30 days of its establishment, shall submit establishment approval documents, articles of association and certificates on the company's assets and minutes of the establishment meeting to responsible departments for the registration of the company's establishment.
The departments responsible for the registration of companies shall, within 30 days upon receipt of all the required documents, complete the registration formalities and issue a business licence.
Article 15 Chinese-foreign equity joint ventures. Chinese-foreign contractual joint ventures and solely foreign-funded enterprises (hereinafter referred to as entterprises with foreign investment), when applying to transform into companies, should submit profit-making records for the past three consecutive years. The original investors of the enterprise with foreign investment, as sole promoter of the company, or with other promoters of the company, shall sign agreements and articles of association for the establishment of the company and submit the documents to responsible departments in the place where the enterprise with foreign investment is located for initial approval, which will then move to MOFTEC for final ratification.
When applying for transformation into companies, the following documents shall be submitted:
1. Contracts and articles of association of the original enterprise with foreign
investment;
2. Resolution on reorganization by the board of directors of the original enterprise with foreign investment;
3. Resolution on terminating the original contracts and articles of association made by the investors of the original enterprise with foreign investment;
4. Evaluation report of the original enterprise with foreign investment's assets;
5. Agreements signed by promoters (including but not limited to former investors of the original enterprise with foreign investment);
6. The company's articles of association;
7. Business license, approval documents and financial statements of the past three consecutive years of the original enterprise with foreign investment;
8. Written application for the company's establishment;
9. Documents testifying the promotors, capital credibility;
10. Other documents deemed necessary.
Article 16 After the approval of the aforementioned applications by MOFTEC and the payment of the total value of the subscripti011 of shares, the promoters can undergo transformation formalities with responsible departments for registering the companies.
Article 17 A company, after transformation, shall inherit all the legal rights and obligations of the original foreign-funded enterprise.
All pledged obligations laid down in the contracts and articles of association of the original enterprise with foreign investment for the Chinese and foreign investors shall remain effective and included in the promoters' agreements and articles of association of the company to be established.
Article 18 When applying to be transformed into companies, State and collective enterprises, in addition to the other requirements stipulated in this set of procedures, shall also meet the following conditions:
1. The enterprise shall have been in operation for at least five years and have a record of profit-making in the past three consecutive years;
2. More than 25% of the enterprise's registered capital have been subscribed by foreign shareholders with convertible foreign currency.
3. The scope of operation of the enterprise conforms to the industrial policy for enterprises with foreign investment. Chinese and foreign shareholders, as promoters of the company, sign agreements and articles of association for the establishment of the company and submit the documents to competent departments in the place where the enterprise with foreign investment is located for initial approval, which will then move to MOFTEC for final ratification.
When applying for transformation into companies in this case, the following documents shall be submitted:
1. Evaluation report of the original enterprise's assets;
2. Written application for the original establishment of the company;
3. Feasibility study reports;
4. The promoters' agreement;
5. The company's articles of association;
6. The business license and financial statements of the past three consecutive years of the original enterprise;
7. Documents testifying the promoters' capital credibility;
8. Other documents deemed necessary.
Article 19 After the approval of the aforementioned applications by MOFTEC and the payment of the total value of the subscription of shares, the promoters can undergo transformation formalities with competent departments for registering the company.
Article 20 When applying for transformation into companies, a joint stock limited company, in addition to the other requirements stipulated in the provisions, shall also meet the following conditions:
1. The joint stock limited company has been established after official State approval;
2. More than 25% of the joint stock limited company's registered capital have been purchased and held by foreign shareholders with the payment of convertible foreign currency;
3. The scope of operation of the joint stock limited company conforms to the industrial policy for enterprises with foreign investment.
Article 21 A joint stock limited company which issues B shares, shall submit the following documents when applying for transformation into companies.
1. Resolution on the transformation of the company reached by the shareholders' conference;
2. Evaluation report of the assets of the original joint stock limited company;
3. Written application for the transformation into a company;
4. Amendments and revisions of the articles of association of the original joint stock limited company;
5. Documents issued by departments in charge of securities approving the issuance of B shares;
6. Other documents deemed necessary.
Article 22 A joint stock limited company, when applying for transformation into a company through increase of shares or issue of foreign held shares, shall submit the agreements signed by the company with the share-subscribers concerned and other necessary documents, in addition to the documents stipulated in the previous article's subparagraphs 1, 2, 3 and 4.
Article 23 A joint stock limited company which issues shares overseas (including but not limited to H and N shares) shall submit the following documents in addition to the documents stipulated in the subparagraphs 1,2,3 and 4 of article 21 when applying for transformation into a company:
1. Documents issued by departments in charge of securities approving the issuance of shares overseas;
2. Documents issued by overseas securities institutions approving the issuance of shares by the original joint stock limited company.
3. Performance of the overseas trading of the shares issued by the original
company.
Article 24 After the approval of the aforementioned applications, the original joint stock limited company shall submit approval certificates and papers testifying the collection of stocks to administrative departments in charge of industry and commerce to undergo the formalities for transforming into a company.
Article 25 Other related matters not included in this set of interim provisions shall follow the Company Law, the State Council's Special Provisions on Overseas Collection and Issuance of Stocks by Joint Stock Limited Companies and other related
provisions.
Article 26 Companies transformed from enterprises with foreign investment do not enjoy further tax- exemption or tax-deduction preferences allotted to the original enterprises.
Article 27 Companies, enterprises and other economic entities or individuals from Hong Kong , Macao and Taiwan , when establishing companies in the Mainland, shall follow the interim provisions.
Article 28 The interim provisions shall be interpreted by MOFTEC. |
