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上市公司回购社会公众股份管理办法(试行) Administration of Repurchase of Public Shares by Listed Companies Procedures (Trial Implementation)

2006-05-12 17:16   我要纠错 | 打印 | 收藏 | | |

证监发[2005]51号

(Promulgated by the China Securities Regulatory Commission on 16 June 2005 and effective as of date of promulgation.)

颁布日期:20050616  实施日期:20050616  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, the Administration of the Issuing and Trading of Shares Tentative Regulations and other relevant laws and administrative regulations in order to standardize the acts of repurchase of public shares by listed companies.

  Article 2 For the purposes of these Procedures, the term “repurchase of public shares by listed companies” means the act whereby a listed company purchases its own public shares (hereafter, “shares”) and cancel such shares in accordance with the law in order to reduce its registered capital.

  Article 3 To repurchase shares, a listed company shall submit record filing materials to the China Securities Regulatory Commission (hereafter, “CSRC”) in accordance with the provisions hereof.

  Article 4 Share repurchase by a listed company shall be conducive to the sustainable development of the company and may not prejudice the lawful rights and interests of its shareholders and creditors.

  The directors, supervisors and senior management personnel shall act in good faith with due diligence in share repurchase.

  Article 5 When repurchasing shares, a listed company shall perform its information disclosure obligations in accordance with the provisions hereof.

  The listed company and its directors shall guarantee that the information disclosed is truthful, accurate and complete without false record, misleading representation or major omission.

  Article 6 The listed company shall engage an independent financial advisor and a law firm to issue professional opinions on the matters of share repurchase.

  The aforementioned professional institutions shall act in good faith with due diligence, conduct due diligence investigation on the relevant matters of share repurchase, verify the record filing materials and guarantee the truthfulness, accuracy and completeness of the documents they issue.

  Article 7 No one shall carry out insider trading, manipulate the trading prices of securities or engage in securities fraud through a listed company‘s share repurchase.

  PART TWO GENERAL PROVISIONS FOR SHARE REPURCHASE

  Article 8 To repurchase shares, a listed company shall meet the following conditions:

  (1) the shares of the company have been listed for at least one year;

  (2) the company has not committed any illegal act in the most recent year;

  (3) the listed company shall have the ability of continuing operation after the share repurchase;

  (4) the equity distribution of the listed company following the share repurchase shall, in principle, meet the conditions for listing; if the company intends to terminate the listing and trading of its shares through share repurchase, it shall comply with the relevant provisions and obtain the approval of the stock exchange; and

  (5) other conditions specified by the CSRC.

  Article 9 Share repurchase by a listed company may be conducted by any of the following means:

  (1) centralized price competition at the stock exchange;

  (2) offer; or

  (3) other means approved by the CSRC.

  Article 10 The rights attached to the repurchased shares shall be lost on the date of ownership transfer to the special repurchase account of the listed company. The listed company shall deduct the number of the repurchased shares from its total share capital when calculating the relevant indicators.

  Article 11 The listed company may not issue new shares during the period of share repurchase.

  The listed company shall not repurchase shares through centralized price competition during the five working days before disclosure of its annual report or interim report or disclosure of information having major impact on the share price.

  Article 12 If, as a result of share repurchase by the listed company, the shares held or controlled by a shareholder exceeds 30% of the issued shares of that company, such shareholder shall not be obliged to perform the obligation of takeover by offer.

  PART THREE PROCEDURE AND INFORMATION DISCLOSURE OF SHARE REPURCHASE

  Article 13 The board of directors of the listed company shall, within two working days after a resolution on share repurchase is adopted, announce the resolution and the share repurchase proposal and issue a notice of convening of a shareholders‘ general meeting.

  The share repurchase proposal shall include at least the following contents:

  (1) the purpose of the share repurchase;

  (2) the share repurchase method;

  (3) the price or price range and the pricing principle for the share repurchase;

  (4) the class and number of shares to be repurchased and the percentage of the total share capital for which they account;

  (5) the total amount and source of the funds to be used for the repurchase;

  (6) the time period for the share repurchase;

  (7) the anticipated change in the equity structure of the company following the repurchase; and

  (8) an analysis by the management of the impact of the share repurchase on the operation, finance and future development of the company.

  Article 14 The listed company shall, three days before convening the shareholders‘ general meeting, publish on the website of the stock exchange the names of the top ten shareholders of its public shares, the number of shares they hold and their shareholding percentage on the register of the company on the trading day immediately prior to the announcement of its share repurchase resolution by the board of directors and on the equity registration date of the shareholders’ general meeting.

  Article 15 The independent financial advisor shall conduct due diligence investigation on the matters of share repurchase by the listed company, issue an independent financial advisor‘s report, and announce the report in the newspapers and periodicals designated by the CSRC five days prior to the convening of the shareholders’ general meeting.

  The independent financial advisor‘s report shall include the following particulars:

  (1) whether the company‘s share repurchase is in compliance with the provisions hereof;

  (2) a statement on the necessity of the repurchase by taking into account such factors as the purpose of the share repurchase, share price performance, an analysis of the estimated value of the company, etc.;

  (3) an analysis on the impact of the share repurchase on the day-to-day operation, profitability and debt repayment capability of the company to illustrate the feasibility of the repurchase plan, taking into account such factors as the funds required for the share repurchase, the source of such funds, etc.; and

  (4) other matters that shall be stated.

  Article 16 The shareholders‘ general meeting of the listed company shall vote on each of the following matters:

  (1) the share repurchase method;

  (2) the price or price range and the pricing principle for the share repurchase;

  (3) the class, number and percentage of the shares to be repurchased;

  (4) the total amount of funds to be used for the repurchase;

  (5) the time period of the share repurchase;

  (6) the authorization to the board of directors for the implementation of the repurchase plan; and

  (7) other relevant matters.

  When announcing the resolution of the shareholders‘ general meeting, the listed company shall state that “this repurchase plan may only be implemented after record filing with the CSRC without objection”。

  Article 17 A resolution on share repurchase of the shareholders‘ general meeting of the listed company must be adopted by two-thirds or more of the voting rights held by the shareholders attending the meeting.

  Article 18 The listed company shall notify its creditors in accordance with the law after adopting a resolution on share repurchase.

  Article 19 After notifying its creditors in accordance with the law, the listed company may submit its share repurchase record filing materials to the CSRC and copy such materials to the local agency of the CSRC at the place of the listed company.

  Article 20 The share repurchase record filing materials of the listed company shall include the following documents:

  (1) an application for share repurchase;

  (2) the resolution of the board of directors;

  (3) the resolution of the shareholders‘ general meeting;

  (4) the repurchase report of the listed company;

  (5) the independent financial advisor‘s report;

  (6) the legal opinion;

  (7) the most recent audited financial and accounting reports of the listed company;

  (8) the self-inspection report on the sale and purchase of the shares of the listed company by the directors, supervisors and senior management personnel of the listed company and the intermediaries participating in the repurchase during the six months prior to the adoption of the resolution by the shareholders‘ general meeting; and

  (9) other documents specified by the CSRC.

  Article 21 The repurchase report of the listed company shall include the following particulars:

  (1) the matters listed in the share repurchase proposal under Article 13 hereof;

  (2) a statement on whether the directors, supervisors and senior management personnel of the listed company sold or purchased the shares of the listed company during the six months prior to the announcement of the resolution on repurchase of the shareholders‘ general meeting and whether they have, independently or jointly with other parties, engaged in insider trading or market manipulation;

  (3) the conclusive opinion issued by the independent financial advisor on the share repurchase;

  (4) the conclusive opinion issued by the law firm on the share repurchase; and

  (5) other matters that shall be stated.

  If the share repurchase is conducted by means of an offer, the method and procedure for preliminary acceptance of the offer by the shareholders, the method and procedure for withdrawal of preliminary acceptance of the offer by the shareholders, and the name and contact details of the securities company that is entrusted by the shareholders with matters such as making and withdrawal of preliminary acceptance, settlement, transfer of ownership and registration of the repurchase by offer shall also be disclosed.

  Article 22 The legal opinion issued by a law firm on the share repurchase of the listed company shall include the following particulars:

  (1) whether the share repurchase of the company meets the conditions stipulated herein;

  (2) whether the company has completed the statutory procedures for the share repurchase; where the share repurchase involves the approval of other competent authorities, whether such approval has been obtained;

  (3) whether the company has performed the relevant information disclosure obligations in connection with the share repurchase in accordance with the provisions hereof;

  (4) whether the source of funds of the company for the share repurchase is in compliance with laws and regulations; and

  (5) other matters that shall be stated.

  Article 23 If the CSRC has not raised any objection within 10 working days of acceptance of the share repurchase record filing materials of the listed company, the listed company may implement the repurchase plan.

  If the share repurchase is conducted by means of centralized price competition, the listed company shall announce the repurchase report within five working days of receipt of the no-objection letter from the CSRC. If the repurchase is conducted by means of an offer, the listed company shall announce the repurchase within two working days of receipt of the no-objection letter and announce the repurchase report before implementing the repurchase plan.

  The listed company shall, at the time of announcement of the repurchase report, announce the legal opinion together.

  Article 24 The listed company shall, before implementing the repurchase plan, open with the securities registration and clearing institution a special repurchase account monitored by the stock exchange. Such account may only be used in repurchasing the shares of the company. The repurchased shares shall be locked and may not be sold.

  Article 25 The listed company shall implement the repurchase plan within the validity of the repurchase period.

  If the listed company fails to implement the repurchase plan three months before the expiration of the repurchase period, the board of directors shall make an announcement of the reasons therefor.

  Article 26 If the repurchase period has expired or the implementation of the repurchase plan has been completed, the company shall stop the repurchase, cancel the special repurchase account, make an announcement of the change in the shares of the company within two working days, and shall cancel the repurchased shares in accordance with the law within ten days and complete the procedures for change in industry and commercial registration.

  PART FOUR: SPECIAL PROVISIONS FOR SHARE REPURCHASE BY WAY OF CENTRALIZED PRICE COMPETITION

  Article 27 Listed companies shall, in accordance with the relevant provisions of the stock exchange and the securities registration and clearing institution, entrust a securities company with securities brokerage business qualification to handle the relevant matters of share repurchase.

  Article 28 During the period of share repurchase, the listed company shall, within the first three trading days of each month, announce the progress of the repurchase as at the end of the preceding month, including the total number of shares repurchased, the highest and lowest purchase prices and the total amount paid.

  Whenever the shares repurchased by the listed company by way of centralized price competition increases by 1% in the percentage of the total share capital of the listed company, the listed company shall make an announcement within two trading days of the occurrence thereof.

  Article 29 If the repurchase period has expired or the implementation of the repurchase plan has been completed, the listed company shall disclose in the share change report the total number of shares repurchased, the highest and lowest purchase prices and the total amount paid.

  PART FIVE SPECIAL PROVISIONS FOR SHARE REPURCHASE BY WAY OF OFFER

  Article 30 If a listed company repurchases shares by way of an offer, the offer price may not be lower than the arithmetic mean of the daily weighted average price of that class of shares in the 30 trading days prior to the announcement of the repurchase report.

  Article 31 If the listed company repurchases shares by way of an offer, it shall, at the same time of announcement of the repurchase report, deposit the total funds required for the repurchase into the bank account designated by the securities registration and clearing institution.

  The offer period may not be less than 30 days or more than 60 days.

  Article 32 If the listed company repurchases shares by way of an offer and the number of shares tendered by shareholders during preliminary acceptance is greater than the number of shares proposed to be repurchased, the listed company shall repurchase the shares tendered by the shareholders during preliminary acceptance in the same proportion. If the number of shares tendered by shareholders during preliminary acceptance is less than the number of shares proposed to be repurchased, the listed company shall repurchase all of the shares tendered by shareholders during preliminary acceptance.

  Article 33 If a listed company repurchases domestically listed foreign shares by way of an offer, it shall comply with the relevant provisions of the business rules of the stock exchange and the securities registration and clearing institution.

  PART SIX REGULATORY MEASURES AND LEGAL LIABILITY

  Article 34 If a listed company fails to carry out record filing in accordance with the provisions hereof, the CSRC has the power to demand suspension or termination of its share repurchase activities, and shall impose penalty on the company and its relevant responsible persons in accordance with the law.

  Article 35 If the listed company makes any false record, misleading representation or major omission in the share repurchase, the CSRC shall order rectification and impose penalty on the company and its relevant responsible persons in accordance with the law.

  Article 36 If anyone engages in fraud, market manipulation or insider trading through share repurchase by listed companies, the CSRC shall impose penalty in accordance with the law. If the case constitutes a criminal offence, it shall be handed over to the judicial authority for investigation and handling in accordance with the law.

  Article 37 If a relevant professional institution that issues opinion on the share repurchase by a listed company fails to perform its due diligence obligations, and the professional opinion issued by it contains false record, misleading representation or major omission, the CSRC shall adopt such measures as regulatory discussion, issuance of warning letter and order of rectification on the relevant professional institution and the signatories. If the case is serious, the CSRC may suspend or revoke their business qualification.

  PART SEVEN SUPPLEMENTARY PROVISIONS

  Article 38 These Procedures shall be effective as of the date of promulgation.

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