关于到香港上市的公司执行《股份有限公司规范意见》的补充规定
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体改生[1993]91号 Article 1 These Supplementary Provisions to the Standards for Companies Limited by Shares Opinion are made in order to meet the needs of companies limited by shares established within the PRC in connection with the issue and listed trading of shares directly in Hong Kong. Article 2 Companies limited by shares that issue shares， and whose shares are listed and traded， directly in Hong Kong （Companies） must implement the Standards for Companies Limited by Shares Opinion （Standard Opinion） and these Supplementary Provisions， and formulate or amend their articles of association in accordance with the Standard Opinion， these Supplementary Provisions and the Articles of Association of Companies to be Listed in Hong Kong Prerequisite Clauses. Company articles of association are the codes of conduct of companies. They are legally binding documents that standardize the rights and obligations between companies and shareholders and between shareholders and shareholders. Except as otherwise provided by company law and relevant administrative laws and regulations， the provisions of company articles of association specified in accordance with the Articles of Association of Companies to be Listed in Hong Kong Prerequisite Clauses may not be amended or stricken. Article 3 Company articles of association must specify the term of operation of the company. Existence in perpetuity shall be deemed a term of operation. Article 4 Companies may issue Renminbi dominated shares （A Shares） and special Renminbi dominated shares. In addition to B shares listed and traded at securities trading places within the PRC as referred to in Article 29 of the Standard Opinion， special Renminbi dominated shares shall include shares dominated in Renminbi that are subscribed for， and traded in， foreign currency and are approved for listing by the Stock Exchange of Hong Kong Limited （H Shares）。 The issue of H Shares by companies shall be examined and approved by the State Council Securities Commission， in accordance with the relevant provisions of the Administration of the Issuing and Trading of Shares Tentative Regulations. With the exception of companies， which redeem or repurchase H Shares in accordance with the methods provided in their articles of association， non-foreign investors and investors that are not from China's areas of Hong Kong， Macao and Taiwan may not sell and purchase H Shares. Article 5 The total number of shares stipulated in a company's articles of association may be issued in instalments within 15 months after the establishment of the company. However， the first issue of shares may not be less than 40% of the company's total number of shares. A company that within its total number of shares， issue shares by instalment， shall carry out examination and approval formalities in accordance with the procedure provided by the State authority in charge of securities， and observe the following provisions： 1. the H Shares a company intends to issue as part of its total shares shall be issued in one instalment. However， if the underwriting agreement requires that in the plan for the current instalment a portion of the shares be reserved for further issue， the issue of the shares reserved may be deemed part of the current instalment； and 2. a company issuing shares in instalments within its total number of shares must make a detailed and full disclosure in the share issue prospectus （including the H Share issue prospectus） for each instalment. Within the scope of the plan disclosed， the company's issue of shares shall be decided on by the board of directors and shall not require additional approval at a shareholders' meeting or similar meeting. However， if shares are issued other than as part of any plan disclosed by a share issue prospectus， the issue must be handled in accordance with the provisions concerning increase of shares in the Standard Opinion and the Articles of Association of Companies to be Listed in Hong Kong Prerequisite Clauses. When a company's shares are issued in instalments， the company's registered capital shall be the paid-up capital from shares already issued. Article 6 If a large State-owned enterprise is to be restructured as a company， it may， following special approval， be established by means of promotion， and the promoter may be the large enterprise. After the company has been established by means of promotion， the capital and the number of shares may be increased， converting it into a public company. Article 7 A company's total investment in other profit-seeking organizations may exceed 50% if its net assets and shall not be subject to the restriction of Paragraph Two of Article 4 of the Standard Opinion concerning the ratio of companies investments in other economic organizations. Article 8 The interval between a company's increases of shares may be less than 12 months and shall not be subject to restriction of Article 36 of the Standard Opinion concerning the interval between share issues. Article 9 A company's increase in new shares shall be determined by the company in accordance with the procedure provided in its articles of association， and shall not be subject to the restrictions on new shares at the time of share increase of Article 37 of the Standard Opinion. Article 10 Company shareholders shall be persons that agree to become shareholders， hold company shares and whose names are registered in the register of shareholders. Article 11 A company may keep the register of Hong Kong H Share holders in Hong Kong， and appoint an agency to administer it. In addition， the agency appointed shall make a duplicate of the register of H Share holders to be kept at the company's domicile. The beneficial owner of a company's H Shares shall have his shares registered in another's name， in accordance with the law of the place where the register of H Share holders is kept. In such case， the provisions of Paragraph Two， Three and Four of Article 26 of the Standard Opinion concerning measures for the registration of share certificates shall not apply to the company's H Shares. The assignment of a company's H Shares shall be handled in accordance with the law of the place where they are listed. When a ruling is required on correction of the register of a company's H Share holders， a ruling shall be given by a competent court of the place where the register is kept， in accordance with the law of the place where the register is kept. Article 12 When a holder of a company's H Shares wished to acquire 10% or more of the company's H Shares， he shall not be required to report the same to the People's Bank of China and the State Commission for the Restructuring of the Economic System in accordance with Article 31 of the Standard Opinion. However， he must make a disclosure and notify the company in accordance with the Administration of the Issuing and Trading of Shares Tentative Regulations and the relevant Hong Kong regulations. Article 13 For company restructuring outside the scope provided in Items （3） to （8） of Article 83 and Part Nine of the Standard Opinion， as long as the company is able to settle its debts， application for approval shall still be made to the government-authorized department provided for in Article 83 of the Standard Opinion. Article 14 When the relevant government-authorized department carries out an investigation in accordance with Items （3） to （8） of Article 83 and Part Nine of the Standard Opinion and Article 13 of these Supplementary Provisions， it shall proceed in accordance with the following principles： 1. the approval principles applied by the relevant government-authorized department shall be consistent with the basic spirit of the Standard Opinion； it shall be considered whether shareholders have obtained the materials and information that they should obtain； whether the relevant resolutions gained sufficient votes； whether the controlling shareholder has fairly and appropriately exercised its powers； whether the company's relevant proposals and plans are fair and reasonable， etc.； 2. the relevant government-authorized department may at its discretion require the company to purchase the shares of shareholders opposed to the proposed restructuring at the price assessed by an independent appraisal organization appointed by the government-authorized department， etc.， as a precondition for approval； 3. the relevant government-authorized department shall notify the company of its decision， and specify the ground for the decision in writing； and 4. persons holding opinions different to the decision may apply for review or institute administrative proceedings in accordance with the PRC， Administrative Review Regulations or the PRC， Administrative Litigation Law. Article 15 A company shall disclose in its share issue prospectus the differences between the provisions of the current Hong Kong law and Item （1） of Article 46 of the Standard Opinion under which “ordinary resolutions shall be passed by more than half of the voting rights of the shareholders attending a meeting， and the shareholders attending such meeting representing more than half of the total shares” and Item （2） of Article 46 of the Standard Opinion under which “special resolutions shall be passed by more than two-thirds of the voting rights of the shareholders attending a meeting， and the shareholders attending such meeting representing more than two-thirds of the total shares”。 Article 16 A company must engage one or more firms of accountants at every shareholders' general meeting to be responsible for verifying the company's annual accounting report and re-checking other accounting reports of the company. The term of engagement of the firm（s） of accountants shall be from the end of a shareholders' annual meeting to the end of the next shareholders' annual meeting. The remuneration of the firm（s） of accountants engaged by the company， as well as the dismissal or replacement of the firm（s） of accountants shall be decided at a shareholders' meeting by means of an ordinary resolution. Resolutions adopted at company shareholders' meetings concerning the engagement， dismissal or replacement of firms of accountants as well as the written notice given to a company by a firm of accountants when it resigns of its own accord， shall be submitted to the relevant department in charge for the record. Article 17 Firms of accountants engaged by companies must be independent and be qualified to a certain degree. If a shareholders' meeting intends to dismiss or not to re-engage a firm of accountants， it shall give such firm of accountants advance notice. The firm of accountants shall have the right to make an appeal to the shareholders' meeting， putting forward its own opinion. If a firm of accountants resigns of its own accord， it shall have an obligation to state at a shareholders' meeting whether there are any irregularities in respect of the company. Article 18 A firm of accountants engaged by a company shall have the right to obtain all information of the company and its subsidiaries in connection with the verification of the company's annual accounting report， and the re-checking of other accounting reports， and shall have the right to request the company's directors and senior management personnel to provide information and answer questions. Article 19 A company's statutory surplus common reserve and capital common reserve shall be used to make up losses and for increase of capital by conversion， in accordance with Items （1） and （2） of Article 72 of the Standard Opinion. However， Item （3） of Article 72 of the Standard Opinion concerning “other purposes stipulated by the State”， shall not apply. Article 20 Dividends and all other sums paid by companies to H Share holders shall be calculated in Renminbi and paid in foreign currency. The conversion formula for payment in foreign currency shall be： Converted value Of dividend or other sum =Renminbi amount of dividend or other sum/Average closing rate of one foreign currency unit at the Shenzhen Swap Centre during the week immediately preceding the declaration of the dividend or other sum The assignment of a company's H Shares shall be cleared and settled in Hong Kong. Matters involved in the assignment shall not be handled in accordance with Article 116 and Article 117 of the Standard Opinion. Article 21 When a company is closed down according to law due to its violation of State laws， regulations or the Standard Opinion and its harming of the public interest， such closure may be carried out in accordance with the provisions of Part Ten of the Standard Opinion， provided that the following provisions are observed： 1. the candidates for and functions of the company's liquidation committee must be submitted to the authority that decided to close the company for approval； if the authority that decided to close the company considers it necessary， it may designate the members of the liquidation committee； 2. the liquidation plan formulated by the liquidation committee may not be contrary to the relevant provisions of the law and must be submitted to the authority that decided to close the company for the record； and 3. the fine， compensation or other related expenses determined according to law by the authority that decided to close the company on the basis of the grounds for such closure， shall be settled after Item （2） and prior to Item （3） of the settlement sequence set forth in Article 100 of the Standard Opinion. Article 22 These Supplementary Provisions shall be applicable to companies that have been approved by the relevant authorized department of the State Council， and that have gained approval to be listed on the Stock Exchange of Hong Kong Limited or to be listed simultaneously on a securities trading place within the PRC and the Stock Exchange of Hong Kong Limited. In the event that laws， regulations and relevant documents promulgated by local governments conflicted with the Standard Opinion and these Supplementary Provisions， the Standard Opinion and these Supplementary Provisions shall prevail. Article 23 The State Commission for the Restructuring of the Economic System shall be responsible for interpreting these Supplementary Provisions. Article 24 These Supplementary Provisions shall be implemented as of the date of promulgation. |
