中国证券监督管理委员会关于规范上市公司实际控制权转移行为有关
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证监公司字[2004]1号

(Issued by the China Securities Regulatory Commission on 7 January 2004 and effective as of the date of issue.)

颁布日期:20040107  实施日期:20040107  颁布单位:中国证券监督管理委员会

  Zheng Jian Gong Si Zi [2004] No. 1

  To all listed companies:

  Since the promulgation1 of the Administration of the Takeover of Listed Companies Procedures (the Takeover Procedures), the market of the controlling power of listed companies have been furthered developed; and the takeover of listed companies has become more transparent2 and standardized3thereby4 promoting the innovation of the merger5 and acquisition market. Since the transfer of actual controlling power of a listed company affects the stable operation and continued development of the company, and the rights and interests of a vast number of medium and small shareholders7, thereby affecting the normal order of the securities market, the Takeover Procedures therefore stipulate8 that the controlling shareholder6(s) (including other persons with actual control) and the purchaser(s) shall owe a fiduciary9 duty to the listed company and other shareholders, and may not use the takeover of the listed company to prejudice the lawful10 rights and interests of the target company and other shareholders.

  However during the recent period, some of the controlling shareholders of listed companies, in violation11 of statutory procedures, transfer voting rights of the shares they hold in the name of “equity12 custody” or “company custody” in advance through conclusion of agreement with the purchaser or other means, leading to actual control of the listed company by the purchaser before becoming a shareholder of the company through the voting rights of the relevant shares it controls. In such a situation, where the controlling shareholder does not fulfil its duties of a controlling shareholder; and the purchaser does not assume its responsibilities of a controlling shareholder despite in actual control of the listed company, the operation and management of the listed company is in an uncertain state, which provides the conditions for the purchaser to maliciously13 infringe14 upon the rights and interests of the listed company and other shareholders. Such acts violate the relevant provisions of the Company Law, the Takeover Procedures and the Listed Company Governance Guidelines on the takeover of listed companies.

  In order to regulate the acts of transfer of actual controlling power of listed companies, to protect the rights and interests of listed companies and medium and small investors15, and to safeguard the normal order of the securities market, we hereby notify you of the relevant issues, as follows:

  1. The transfer of controlling power of listed companies shall be regulated and carried out according to the Takeover Procedures. Beginning from the date of issue of this Circular, the controlling shareholder of a listed company may not, in violation of statutory procedures or in avoidance of legal obligations, transfer the controlling power of the listed company in a disguised form by way of any means such as the so-called “equity custody” and “company custody”。

  2. Where the takeover of a listed company is carried out by means of agreement, the controlling shareholder and the purchaser shall clearly stipulate in the takeover agreement their respective rights and obligations during the transition period from the conclusion of the takeover agreement to the change in ownership of the relevant shares, and shall adopt effective measures to ensure the stable transition of the operation and management of the listed company during the transfer of controlling power.

  During the transition period, the controlling shareholder or the purchaser may not use the takeover to prejudice the rights and interests of the listed company or the medium and small shareholders, and shall abide16 by the following provisions:

  (1) The controlling shareholder and the purchaser shall maintain the independence of the listed company and improve corporate17 governance in strict compliance18 with the requirements of the Listed Company Governance Guidelines. Prior to the change in ownership of the relevant shares, the controlling shareholder shall fulfil the duties of a controlling shareholder; and the purchaser shall fully19 fulfil the fiduciary duty to the target company and other shareholders in accordance with the provisions of the Takeover Procedures.

  (2) During the transition period, the purchaser shall not in principle propose a re-election of the board of directors of the listed company through the controlling shareholder. Where there are indeed adequate reasons for re-electing the board of directors, the number of directors from the purchaser may not exceed one-third of the board of directors.

  (3) During the transition period, the controlling shareholder and the purchaser shall ensure that the normal production and operation of the listed company is not affected20. The purchaser shall not use the listed company as pledge. The listed company shall not carry out refinancing, major purchase or sale of assets or other major investment acts, except in circumstances where the purchaser is so doing to rescue the listed company that faces serious financial difficulties.

  (4) The listed company and its controlling shareholder, and the purchaser shall strictly21 abide by the provisions of the Several Issues Concerning the Regulation of Transactions of Funds Between Listed Companies and Their Affiliates22 and the Provision of Security to External Parties by Listed Companies Circular (Zheng Jian Fa [2003] No. 56)。 The listed company shall not provide security to the purchaser or its affiliates. The purchaser and its affiliates shall not appropriate the funds or assets of the listed company.

  (5) After the takeover is completed, the purchaser shall conduct a self-examination to state the details on the adjustment of assets, personnel, business, and operation and management of the listed company during the transition period, the standardization23 of operation of the listed company during the transition period, and whether there are circumstances that prejudice the interests of the listed company, such as provision of security or loans by the listed company to the purchaser or its affiliates.

  The board of directors of the listed company shall issue a clear opinion on the self-examination report of the purchaser, employ a certified24 accounting25 firm or financial consultants26 with securities business qualifications to conduct a special examination of the operation of the company during the transition period, and shall issue an opinion on a comparison of the business performance of the company before and after the transfer of actual controlling power, on whether the purchaser has discharged its liabilities to the company and whether the security provided to it by the company has been released, or on other circumstances that prejudice the interests of the company. If the afore-mentioned circumstances exist, the board of directors of the listed company shall adopt effective measures to safeguard the interests of the listed company.

  The self-examination report of the purchaser and the opinion of the board of directors shall be published, and shall be submitted to the agency of the China Securities Regulatory Commission of the place where the listed company is located.

  3. Acts of transfer of actual controlling power of listed companies by controlling shareholders in violation of statutory procedures that occurred before the issue of this Circular shall be rectified27 within six months of the issue of this Circular. Where the takeover of the listed company is continued by means of agreement, it shall be standardized in accordance with Article 2 hereof. Where the board of directors has been re-elected, the directors of the listed company shall fully fulfil their fiduciary duty and prudentially handle the relevant motions. All motions of the board of directors shall be regarded as special motions, and shall be consented to by at least two-thirds of the directors. Independent directors shall express their opinions independently.

  Where a purchaser has not disclosed the Listed Company Takeover Report in accordance with the provisions of the Takeover Procedures, it shall carry out supplementary28 information disclosure within two months of the issue of this Circular, and shall state in detail the details of the purpose of the takeover, its adjustment of the assets, business and personnel of the listed company, the follow-up plan and handling of the procedures for transfer of equity, etc.

  After rectification29 or standardization has been carried out in accordance with the provisions of this Circular, the purchaser and the board of directors of the target company shall separately issue a self-examination report and an examination opinion by reference to Item (5) of Article 2 hereof, and shall submit the same to the agency of the China Securities Regulatory Commission of the place where the listed company is located and make a public announcement thereof.

  4. In the case of an act of transfer of actual controlling power of a listed company by a controlling shareholder in violation of statutory procedures that occurred before the issue of this Circular, and the controlling shareholder of the listed company and the purchaser have not carried out rectification or standardization in accordance with this Circular, the China Securities Regulatory Commission shall order rectification in accordance with the relevant provisions of the Takeover Procedures and Zheng Jian Fa [2003] Document No. 56.

  5. The provisions of this Circular shall not apply to the administration of State-owned equity of listed companies by State-owned assets business units upon entrustment30 by State-owned assets administration departments.

  6. This Circular shall be effective as of the date of issue.



点击收听单词发音收听单词发音  

1 promulgation d84236859225737e91fa286907f9879f     
n.颁布
参考例句:
  • The new law comes into force from the day of its promulgation. 新法律自公布之日起生效。 来自《简明英汉词典》
  • Article 118 These Regulations shall come into effect from the day of their promulgation. 第一百一十八条本条例自公布之日起实施。 来自经济法规部分
2 transparent Smhwx     
adj.明显的,无疑的;透明的
参考例句:
  • The water is so transparent that we can see the fishes swimming.水清澈透明,可以看到鱼儿游来游去。
  • The window glass is transparent.窗玻璃是透明的。
3 standardized 8hHzgs     
adj.标准化的
参考例句:
  • We use standardized tests to measure scholastic achievement. 我们用标准化考试来衡量学生的学业成绩。
  • The parts of an automobile are standardized. 汽车零件是标准化了的。
4 thereby Sokwv     
adv.因此,从而
参考例句:
  • I have never been to that city,,ereby I don't know much about it.我从未去过那座城市,因此对它不怎么熟悉。
  • He became a British citizen,thereby gaining the right to vote.他成了英国公民,因而得到了投票权。
5 merger vCJxG     
n.企业合并,并吞
参考例句:
  • Acceptance of the offer is the first step to a merger.对这项提议的赞同是合并的第一步。
  • Shareholders will be voting on the merger of the companies.股东们将投票表决公司合并问题。
6 shareholder VzPwU     
n.股东,股票持有人
参考例句:
  • The account department have prepare a financial statement for the shareholder.财务部为股东准备了一份财务报表。
  • A shareholder may transfer his shares in accordance with the law.股东持有的股份可以依法转让。
7 shareholders 7d3b0484233cf39bc3f4e3ebf97e69fe     
n.股东( shareholder的名词复数 )
参考例句:
  • The meeting was attended by 90% of shareholders. 90%的股东出席了会议。
  • the company's fiduciary duty to its shareholders 公司对股东负有的受托责任
8 stipulate shhyP     
vt.规定,(作为条件)讲定,保证
参考例句:
  • International rules stipulate the number of foreign entrants.国际规则规定了外国参赛者的人数。
  • Some manufacturers stipulate the price at which their goods are to be sold.有些制造商规定出售他们生产的商品的价格。
9 fiduciary AkFxB     
adj.受托的,信托的
参考例句:
  • A company director owes a fiduciary duty to the company.公司董事应对公司负责受托人责任。
  • He was acting in a fiduciary capacity.他以受托人身份行为。
10 lawful ipKzCt     
adj.法律许可的,守法的,合法的
参考例句:
  • It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
  • We don't recognised him to be the lawful heir.我们不承认他为合法继承人。
11 violation lLBzJ     
n.违反(行为),违背(行为),侵犯
参考例句:
  • He roared that was a violation of the rules.他大声说,那是违反规则的。
  • He was fined 200 dollars for violation of traffic regulation.他因违反交通规则被罚款200美元。
12 equity ji8zp     
n.公正,公平,(无固定利息的)股票
参考例句:
  • They shared the work of the house with equity.他们公平地分担家务。
  • To capture his equity,Murphy must either sell or refinance.要获得资产净值,墨菲必须出售或者重新融资。
13 maliciously maliciously     
adv.有敌意地
参考例句:
  • He was charged with maliciously inflicting grievous bodily harm. 他被控蓄意严重伤害他人身体。 来自《简明英汉词典》
  • His enemies maliciously conspired to ruin him. 他的敌人恶毒地密谋搞垮他。 来自《现代汉英综合大词典》
14 infringe 0boz4     
v.违反,触犯,侵害
参考例句:
  • The jury ruled that he had infringed no rules.陪审团裁决他没有违反任何规定。
  • He occasionally infringe the law by parking near a junction.他因偶尔将车停放在交叉口附近而违反规定。
15 investors dffc64354445b947454450e472276b99     
n.投资者,出资者( investor的名词复数 )
参考例句:
  • a con man who bilked investors out of millions of dollars 诈取投资者几百万元的骗子
  • a cash bonanza for investors 投资者的赚钱机会
16 abide UfVyk     
vi.遵守;坚持;vt.忍受
参考例句:
  • You must abide by the results of your mistakes.你必须承担你的错误所造成的后果。
  • If you join the club,you have to abide by its rules.如果你参加俱乐部,你就得遵守它的规章。
17 corporate 7olzl     
adj.共同的,全体的;公司的,企业的
参考例句:
  • This is our corporate responsibility.这是我们共同的责任。
  • His corporate's life will be as short as a rabbit's tail.他的公司的寿命是兔子尾巴长不了。
18 compliance ZXyzX     
n.顺从;服从;附和;屈从
参考例句:
  • I was surprised by his compliance with these terms.我对他竟然依从了这些条件而感到吃惊。
  • She gave up the idea in compliance with his desire.她顺从他的愿望而放弃自己的主意。
19 fully Gfuzd     
adv.完全地,全部地,彻底地;充分地
参考例句:
  • The doctor asked me to breathe in,then to breathe out fully.医生让我先吸气,然后全部呼出。
  • They soon became fully integrated into the local community.他们很快就完全融入了当地人的圈子。
20 affected TzUzg0     
adj.不自然的,假装的
参考例句:
  • She showed an affected interest in our subject.她假装对我们的课题感到兴趣。
  • His manners are affected.他的态度不自然。
21 strictly GtNwe     
adv.严厉地,严格地;严密地
参考例句:
  • His doctor is dieting him strictly.他的医生严格规定他的饮食。
  • The guests were seated strictly in order of precedence.客人严格按照地位高低就座。
22 affiliates 8039227006b7ce850a1cb99be5471e50     
附属企业( affiliate的名词复数 )
参考例句:
  • She affiliates with an academic society. 她是某学术团体的成员。
  • For example, these security affiliates participated in the floating of 19,000,000,000 of issues in 1927. 例如,这些证券发行机构在1927年的流通证券中,就提供了一百九十亿美元的证券。
23 standardization nuPwl     
n.标准化
参考例句:
  • Standardization of counseling techniques is obviously impossible. 很清楚,要想使研讨方法标准化是不可能的。
  • In Britain, progress towards standardization was much slower. 在英国,向标准化进展要迟缓得多。
24 certified fw5zkU     
a.经证明合格的;具有证明文件的
参考例句:
  • Doctors certified him as insane. 医生证明他精神失常。
  • The planes were certified airworthy. 飞机被证明适于航行。
25 accounting nzSzsY     
n.会计,会计学,借贷对照表
参考例句:
  • A job fell vacant in the accounting department.财会部出现了一个空缺。
  • There's an accounting error in this entry.这笔账目里有差错。
26 consultants c6fbb5ca6219111731f9c4c4d2675810     
顾问( consultant的名词复数 ); 高级顾问医生,会诊医生
参考例句:
  • a firm of management consultants 管理咨询公司
  • There're many consultants in hospital. 医院里有很多会诊医生。
27 rectified 8714cd0fa53a5376ba66b0406599eb20     
[医]矫正的,调整的
参考例句:
  • I am hopeful this misunderstanding will be rectified very quickly. 我相信这个误会将很快得到纠正。
  • That mistake could have been rectified within 28 days. 那个错误原本可以在28天内得以纠正。
28 supplementary 0r6ws     
adj.补充的,附加的
参考例句:
  • There is a supplementary water supply in case the rain supply fails.万一主水源断了,我们另外有供水的地方。
  • A supplementary volume has been published containing the index.附有索引的增补卷已经出版。
29 rectification NUwx3     
n. 改正, 改订, 矫正
参考例句:
  • The process of producing a shift of the average value is called rectification. 产生平均值移动的过程叫做整流。
  • This effect, in analogy to its radiofrequency counterpart, is known as optical rectification. 同它的射频对应物相仿,这种现象称为光学整流。
30 entrustment 526b37b72a9ef9bd309909b523167da7     
[法]委托
参考例句:
  • The term of entrustment is divided into one-day five-day validity. 委托期限分为当日有效和五日有效。 来自互联网
  • Chapter three discusses the bureaucratic group and the congressional entrustment of legislation. 第三章讨论官僚集团与国会立法权的委托。 来自互联网
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