Special Provisions of the State Council Concerning the Floatation and Listing Abroad of Stocks by Limited Stock Companies

(Order No. 160 of The State Council of the People's Republic of China The "Special Provisions of the State Council Concerning the Floatation and Listing Abroad of Stocks by Limited Stock Companies' was adopted at the 22nd executive meeting of the State Council on July 4, 1994 and is hereby promulgated for implementation starting from the date of promulgation.)

This set of provisions has been formulated according to Article 85 and Article 155 of the "Company Law of the People's Republic of China" in order to meet the needs of the floatation and listing abroad of stocks by limited stock companies.

Limited stock companies may issue their stocks to given or non-given investors and list them abroad with the approval of the Securities Committee of the State Council.

The term "listing abroad" used in this set of provisions means to issue stocks to investors abroad and list them for transactions and transfer on the stock exchanges by limited stock companies.

The stocks issued and listed abroad (hereinafter referred to as "foreign capital stock listed abroad") by limited stock companies shall be in the form of inscribed stocks, with the per value indicated in Renminbi and subscribed to in foreign currencies.

The foreign capital stock listed abroad may be in the form of stock deposit receipts or in other derivations.

The Securities Committee of the State Council or its supervision and management and executive organization the China Securities Supervision and Management Committee may reach understanding or an agreement with securities supervision and management organizations abroad to exercise cooperative supervision and management of the limited stock companies in their activities of issuing and listing their stocks abroad and other relevant activities.

A limited stock company wishing to issue and list its stocks abroad shall file a written application according to the requirements by the Securities Committee of the State Council and submit it, together with relevant documents, to the Securities Committee of the State Council for approval.

If a State-owned enterprise or an enterprise with State-owned property occupying the dominant position is to be converted into a limited stock company that will issue and list its stocks abroad according to the relevant regulations of the State, the number of promoters may be less than five if it is incorporated by way of promotion. Such a limited stock company may issue new stocks as soon as it is incorporated.

The stocks issued to domestic investors (hereinafter referred to as "domestic capital stocks") by a limited stock company (hereinafter referred to as "company") that has issued and listed its stocks abroad shall be in the form of inscribed stocks.

The board of directors may make separate arrangements for the plan of issuing and listing foreign capital stocks and domestic capital stocks approved by the Securities Committee of the State Council.

The plan for the issuing and listing of foreign capital stocks and domestic capital stocks worked out according to the provisions in the preceding paragraph may be executed separately within 15 months starting from the date of approval by the Securities Committee of the State Council.

If a company issues foreign capital stocks and domestic capital stocks listed abroad within the total amount fixed in the stock issue plan, it shall float them in full in one issue. If special circumstances prevent this from being realized, it may issue them in instalments with the approval of the Securities Committee of the State Council.

If a company fails to issue all the stocks as planned in one issue, it is not allowed to issue new stocks not covered by the plan. If a company needs to adjust the stock issue plan, the shareholders meeting shall adopt a resolution for the examination by the company examination and approval department authorized by the State Council and the approval by the Securities Committee of the State Council.

The interval between the second issue of foreign capital stocks listed abroad by adding capital and the previous issue shall not be less than 12 months.

In issuing foreign capital stocks listed abroad within the total amount fixed in the stock issue plan, it may, with the approval of the Securities Committee of the State Council, agree with the underwriter(s) in the underwriting agreement to reserve a certain amount of stocks apart from the amount underwritten but the amount reserved shall not exceed 15% of the total amount planned to be issued and listed abroad. The issue of the reserved shares is regarded as part of the same issue.

A company shall reveal in full and detail the plan for separately issuing foreign capital stocks listed abroad and domestic capital stocks in the prospectus for all issues. Revelation is required if the stock issue plan approved is altered.

The Securities Committee of the State Council, together with the company examination and approval department, may provide specific stipulations concerning the essential clauses in the articles of association of a company.

The articles of association of a company shall specify clearly the contents required by essential clauses. A company is not allowed to alter or omit, without approval, the contents of the essential clauses in the articles of association.

A company shall specify the term of its operation in the articles of association. The term of operation of a company may be extended forever.

The articles of association of a company are binding to the company and its shareholders, directors, supervisors, managers and other senior management personnel.

The company and its shareholders, directors, supervisors, managers and other senior management personnel all may apply for arbitration or take legal proceedings according to the advocacy and rights provided for in the articles of association.

The term "senior management personnel" referred to in the first and second paragraphs of this article include people responsible for the financial and accounting affairs of the company, secretaries of the board of directors and other people as provided for in the articles of association.

The names of investors abroad holding foreign capital stocks listed abroad and registered in the list of shareholders of a company shall be the foreign capital stockholders abroad of the company.

Owners of the rights and interests of foreign capital stocks listed abroad may register their shares under the names of nominal shareholders according to the provisions of the laws of the place where the list of foreign capital stockholders is kept or the place where the stocks are listed.

The list of foreign capital stockholders is the full evidence testifying the holding of the company's foreign capital stocks, except otherwise testified by evidence to the contrary.

A company may keep the original list of its foreign capital stockholders abroad and entrust a foreign agency for its safekeeping according to the understanding and agreement referred to in Article 4 of this set of provisions. The company shall keep the copy of the list of foreign capital stockholders made by the foreign agency at the residence of the company. The entrusted foreign agency shall ensure the all-time identity of the original and copy of the list of foreign capital stockholders.

If an alteration of the list of foreign capital stockholders needs to be made according to judicial rulings, the ruling may be made by the court exercising the jurisdiction over the place where the original of the list is kept.

If a holder of foreign capital stocks lost his or her shares and applies for re-issue, the case may be handled according to the law where the list of the foreign capital stockholders is kept, the rules of the stock exchange and other relevant regulations.

In calling shareholders meetings, a company shall issue a written notice 45 days in advance to all the listed shareholders, specifying the matters to be examined and discussed, the date and place of the meeting.

The shareholders planning to attend the shareholders meeting shall send back the reply in writing to the company 20 days before the convocation of the meeting.

The specific format of the written notice and written reply shall be specified in the articles of association of a company.

In its annual meeting of shareholders, the shareholders holding more than 5% of the voting stocks have the right to put forward new bills in writing and the company should list the matters falling within the scope of the functions of the shareholders meeting into the agenda of the meeting.

A company shall count the number of voting stocks represented by shareholders according to the number of written replies received on 20th day away from the shareholders meeting. If the number of voting stocks represented by shareholders planning to attend the meeting has reached half of the total number of voting stocks, the company may call the shareholders meeting. If the number has not reached half of the total number of voting stocks, the company should, within five days, inform the shareholders in the form of an announcement of the matters to be discussed and the date and place of the meeting. After the announcement is made, the company may call the shareholders meeting.

The directors, supervisors, managers and other senior management personnel of a company have the obligations of being honest, trustworthy and industrious to the company.

The people listed in the preceding paragraph shall observe the articles of association of the company, faithfully perform their duties and protect the interests of the company. They are not allowed to seek personal gains by abusing the positions and powers they hold in the company.

A company shall appoint an independent certified accountants office that conforms to the relevant regulations of the State to audit its annual report and cross check other financial reports of the company.

The company shall provide relevant materials to the certified accountant's office it has appointed and answer its enquiries.

The period of appointment of a certified accountants office starts from the date when the first annual shareholders meeting ends to the date when the next annual shareholders meeting ends.

In dismissing or discontinuing the appointment of a certified accountant’s office, a company shall notify the said accountant’s office in advance and the said accountant’s office has the right to make its statement to the shareholders meeting.

If a certified accountant’s office quits, it shall state to the shareholders meeting whether or not there is anything improper in the company.

The decision to appoint, dismiss or discontinue to appoint a certified accountants office shall be taken by the shareholders meeting and the decision shall be submitted to the China Securities Supervision and Management Committee for the record.

The dividends on foreign capital stocks and other relevant payments made to shareholders abroad shall be priced and announced in Renminbi and paid in foreign currencies. The settlement of the capital raised by the company in foreign currencies and the foreign exchange needed by a company to pay the stock dividends and make other payments to shareholders shall be handled according to the provisions concerning the foreign exchange control of the State.

If the articles of association provide that the said payments shall be converted into foreign currencies and paid to shareholders by other organizations, the provisions of the articles of association shall apply.

The documents of information compiled by a company for revelation at home and abroad shall not be self-contradictory in contents.

If there are disparities between the information revealed at home, abroad or in different countries according to the domestic and foreign laws and regulations and rules of stock exchanges, the company shall reveal the differences simultaneously at relevant stock exchanges.

The disputes arising from the matters relating to the contents of the articles of association and other affairs of the company between foreign capital stockholders and the company, between foreign capital stockholders and the directors, supervisors and managers of the company and between foreign capital stockholders and domestic capital stockholders shall be settled in the way provided for in the articles of association.

The law of the People's Republic of China shall apply in settling the disputes mentioned in the preceding paragraph.

This set of provisions shall be implemented starting from the date of promulgation.