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  • 上市公司收购管理办法 Administration of the Takeover of Listed Companies Procedures

    中国证券监督管理委员会令第10号

    (Issued by the China Securities Regulatory Commission on 28 September 2002 and effective as of 1 December 2002.)

    颁布日期:20020928  实施日期:20021201  颁布单位:中国证券监督管理委员会

      PART ONE GENERAL PROVISIONS

      Article 1 These Procedures have been formulated in accordance with the Company Law, the Securities Law and other laws and relevant administrative regulations in order to regulate activities related to the takeover of listed companies, promote optimized allocation of securities market resources, protect the lawful rights and interests of investors and safeguard the normal order of the securities market.

      Article 2 For the purposes of these Procedures, the term “takeover of listed companies” refers to a purchaser's gaining or possibly gaining actual control of a listed company by virtue of having obtained a certain percentage of shares in such company through securities transactions conducted on a stock exchange or by having obtained a certain degree of control of the company's shares through lawful activities other than securities transactions conducted on a stock exchange.

      Article 3 The purchaser may carry out the takeover of a listed company, and gain the power to actually control the same, by means of takeover by agreement, takeover by offer or centralized trading at competing prices on a stock exchange.

      When engaging in the takeover of listed companies, purchasers shall observe the provisions hereof regarding the rules for takeover and perform reporting and announcement obligations in accordance with these Procedures in a timely manner.

      Article 4 Activities related to the takeover of listed companies shall comply with the principles of transparency, equitability and fairness. The relevant parties shall act in good faith and, on their own initiative, safeguard the order of the securities market.

      Article 5 The information reported and announced by the relevant parties involved in activities related to the takeover of a listed company must be true, accurate and complete and may not contain falsehoods, misleading statements or major omissions.

      No person shall use the takeover of a listed company to disseminate false information, disturb the market order or engage in any other fraudulent activities.

      Article 6 The takeover of listed companies may be performed using cash, legally negotiable securities and other payment methods provided for by laws or administrative regulations.

      Article 7 The purchaser may not use the takeover of the listed company to prejudice the lawful rights and interests of the target company or its shareholders.

      Purchasers lacking the ability to actually perform on takeover obligations are prohibited from engaging in the takeover of listed companies. Takeover targets may not provide any financial assistance to their purchasers.

      Article 8 The controlling shareholders and other persons with actual control of listed companies owe a fiduciary duty to the company they control and the other shareholders thereof.

      Purchasers owe a fiduciary duty to the listed target company and its shareholders and shall provide an adequate and effective performance bond in respect of their specific undertakings.

      Article 9 The directors, supervisors and senior management of listed companies owe a fiduciary duty to the company they serve and the shareholders thereof.

      If one or more of the directors of a target company is replaced or resigns during the takeover, the company shall explain the reason therefor and make an announcement thereof.

      Article 10 The China Securities Regulatory Commission (CSRC) will oversee the activities relating to the takeover of listed companies in accordance with the law.

      Stock exchanges and securities registration and clearing institutions shall carry out routine oversight o

    f activities related to the takeover of listed companies in accordance with the duties delegated by the CSRC and their rules for operation.

      Article 11 The CSRC may establish a special committee comprised of professionals to put forward opinions on whether a specific transaction constitutes takeover of a listed company, how parties should perform their relevant obligations, whether the specific particulars of a transaction prejudice the target company's continued listing, and other relevant substantive and procedural matters.

      PART TWO RULES FOR TAKEOVER BY AGREEMENT

      Article 12 A purchaser engaging in takeover of a listed company by agreement shall, on the day following the arrival at the takeover agreement, submit a listed company takeover report to the CSRC, submit duplicates thereof to the CSRC agency of the place where the listed company is located and the stock exchange, notify the target company and publish a warning containing a summary of the takeover report.

      If the CSRC has not raised objections to the takeover report within 15 days of the receipt thereof, the purchaser may announce the takeover report and perform the takeover agreement.

      Article 13 For takeovers by agreement, if the percentage of the listed company's shares held or controlled by the purchaser has reached 30% of the company's issued shares and the purchaser wishes to continue increasing its shareholding or control, it shall use the takeover-by-offer method and tender an offer to all shareholders of such company offering to acquire their entire shareholdings. In circumstances conforming to those set out in Part Four hereof, the purchaser may apply to the CSRC for exemption. If an exemption is obtained, the purchaser may employ the takeover-by-agreement method.

      Article 14 For takeovers by agreement, if the percentage of the listed company's shares that the purchaser intends to hold or control exceeds 30% of the company's issued shares, it shall use the takeover-by-offer method and tender an offer to all shareholders of such company offering to acquire their entire shareholdings. In circumstances conforming to those set out in Part Four hereof, the purchaser may apply to the CSRC for exemption. If an exemption is obtained, the purchaser may employ the takeover-by-agreement method.

      Article 15 After the target company receives the purchaser's notice, the board of directors of the target company shall express an opinion, in a timely manner, on the effects on the company that the takeover might create. While participating in the formulation of the opinion of the board of directors, independent directors shall also express their individual opinions. If the board of directors considers it necessary, it may engage an independent financial consultant or other such professional organization to provide a consultative opinion. The opinions of the board of directors and the independent directors of the target company, as well as the opinion of the professional organization, shall be announced together.

      In the case of takeover of a listed company by its management and staff, the independent directors of the target company shall express their opinions on the effects on the company that the takeover might create. The independent directors shall require that the company engage an independent financial consultant or other such professional organization to provide a consultative opinion. The consultative opinion and opinions of the independent directors shall be announced together. The financial consultant's fee shall be borne by the target company.

      Article 16 For transactions involving the transfer of shares held by State-authorized organizations or shares the transfer of which is subject to administrative approval, the relevant parties in the takeover by agreement shall obtain approval from the relevant competent department prior to performing the takeover agreement.

      Article

    17 The relevant parties involved in a takeover by agreement shall apply for share transfer and registration of the change in ownership in accordance with the business rules and requirements of the stock exchange and securities registration and clearing institution.

      If reporting and announcement obligations have not been performed or application has not been submitted in accordance with provisions, the stock exchange and the securities registration and clearing institution shall not process the share transfer and registration of the change in ownership.

      Article 18 For takeovers of listed companies by agreement, the relevant parties shall entrust the securities registration and clearing organization to take temporary custody of the shares to be transferred and shall deposit the cash to be used for payment in the bank account designated by the securities registration and clearing institution.

      Article 19 If the listed shares of a listed company are to be transferred by the method of takeover by agreement, resulting in the transferee gaining or possibly gaining actual control of such company, the following procedures shall be carried out:

      1. after announcement of the listed company takeover report, the relevant parties shall entrust a securities company to apply for share transfer and registration of change in ownership; the entrusted securities company shall apply to the stock exchange and the securities registration and clearing institution to suspend trading in the shares to be transferred and for temporary custody thereof. If trading is suspended and temporary custody effected, an announcement shall be made thereof;

      the stock exchange may decide to suspend trading in the target company's listed shares based on market administration needs;

      2. the transferee s

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