Category: Money tips Release Date: 2007-04-19
Comrade Zhou:
In the stock restructuring program, a variety of non-tradable shareholders made a commitment. As a small circulating shares, the commitments to be honored inevitably some concern, we would like to know if the non-tradable shareholders against the pledge is not a violation? If the rights of investors generate abuse, the legal basis for investors to safeguard their rights What? How should the prosecution?
Hebei Luk Luk:
For the share reform program in various commitments, can be divided into two categories, one category is not a commitment to a class is a commitment. Not as a commitment to include commitment to holding lock-up period, prohibiting the sale price undertakings, holding lock period, the proportion of reduction commitments, but as a commitment to raise the cash dividend mainly related to the proportion of commitment and additional arrangements on the price / Major Holders commitment.
In the current share reform program, all dealing with the commitment issue, which shows non-tradable shareholders are more willing to use on future expectations and commitment to express the wishes of the reform, but the non-tradable shareholders only if the breach is the need to take responsibility, and this triggered the compliance issues, regulatory issues and promise to guarantee the issue. On compliance
According to China's "Contract Law" and relevant provisions of the commitment to act as a contract once made, commitments of the real meaning of that set up, and it should comply with the corresponding contractual obligations, if the breach of contractual obligations shall bear the corresponding legal consequences.
In the stock restructuring, the commitment to the meaning of that is actually a non-tradable shares to tradable shareholders, the shareholders make a binding unilateral contractual obligations, commitments were against this as a unilateral commitment to a voluntary basis, it constitutes a breach of contract , breach of contract by the breach should bear the corresponding breach of contract.
The main responsibility for this breach of contract are: (1) breach of contract continues to be asked after the performance, which should not act as, and will be asked to turn up to give up act, should be rather than as, and will be asked to continue; (2) post-default damages, despite being requested to continue performance, but the consequences have occurred may be required to make consequential damages. At this time, faced liability for breach of the outstanding shares of shareholders who could bring breach of contract for breach of contract complaint, the relevant people's courts should also be accepted. At the same time, due to the commitments made constitutes a part of stock market information disclosure, therefore, committed person to the commitment, once it has been disclosure of information, it becomes a part of their true statements, if its made to be false said that in practice they constitutes a false statement of its acts, acts of false statements occurred after a determined, according to our "Securities Law", undermining the interests of investors in securities can also bring a civil compensation in accordance with law v.. So, occurring in the future non-tradable shareholders (commitments person) acts of breach of promise, investors can be the most advantageous from the perspective of their own, or select liability for breach of the complaint, or select a v. tort compensation (for example, constitutes a false statement). With regard to regulatory issues
Commitment is not only a breach of contract and damages issues, regulators and exchanges need to establish an effective monitoring mechanism. This mechanism is not only focused on present, but also looking to the future.
It should be said, although some stock restructuring program shows the commitment of breach of contract damages, but the expression is rather vague, intentionally or unintentionally, the abstract losses and damages, if the company only that "sell funds" proceeds will be submitted to listed companies, of which, and there is no penalty formulation. Thus, the expression of the relatively poor operational. Therefore, the regulatory approach through administrative regulations or stock exchange through the "memorandum" means to bring all kinds of promises and its responsibility for possible damages for breach of contract specific, requires a clear statement, and draw the boundaries of various types of liability . For example, the Shenzhen Stock Exchange has been in the "split share structure reform of the Memorandum No. 3" in specific commitments matters.
Through practice concluded, stocks were firm commitments to reform promised in the matter, at least provides some of the following conditions and limits: (1) compliance risk, that commitment, the commitment to fully expects the securities market and listed companies, the future environmental trends to assess the performance risk; (2) compliance in good faith, ie letter of commitment should be a commitment to people and their ability to adapt to the actual performance reflects the commitment of the meaning expressed by the sincerity of people; (3) compliance compliance, that commitment that must comply with relevant laws, the requirements of laws and regulations; (4) performance operability, that is, the stock exchange and securities registration and settlement company's systems, technical support and to achieve this performance; (5) performance guarantee, which means that commitment to people right there is a big commitment of uncertainty, such as overweight, put rights, there should be a good financial credit to other organizations or individuals to provide the necessary guarantees of performance, the current shares of Wuhan Iron and Steel to allow innovative companies to set up qualified securities covered warrants is an example ; (6) the authenticity of the disclosure of performance, namely, non-tradable shareholders should be made by letter of commitment with the instructions in the split share structure reform commitments disclosed the contents of consistency here, has been elevated to the status of the letter of commitment to a high degree of information disclosure , raised to the height of the nature of the information disclosure is also a commitment to act as a constraint, once the violation of both may be held liability for breach of a false statement can also be held accountable. On the commitments to the issue of security
Promise to guarantee the formulation and implementation, are stock reform to protect the interests of small investors, an important measure. How accordance with "Guarantee Law", "Securities Law" the relevant provisions of the commitment to implement security measures is the need to carefully consider the content, it relates to future commitments to protect the interests of investors cashed.
On the commitment to guarantee itself, although it is only promised to add, but this supplement is needed to safeguard their rights, but also about the credibility of the share reform. Therefore, the promise to guarantee with the same weight as important as liquidated damages, so the backup mechanism and to ensure the security mechanisms in the share reform program to honor that should be clearly reflected. Specific indications were: (1) commitment to issues of uncertainty should be clearly the responsibility of the guarantor and the guarantee that the necessary and sufficient to provide performance guarantees; (2) performance guarantee program should include at least introduce a guarantor, guarantee qualification, by way of security, guarantee the main provisions of the agreement, the security responsibilities of the content; (3) sponsor organizations should be made clear distribution of responsibilities and obligations, such as the split share structure reform of listed companies after the implementation of the sponsor organizations and sponsors committed to the performance of representatives shall supervise the development of commitment, supervisory period will last to the commitment of people who have to fulfill their commitments only, while the commitment of the sponsor institutions should express their views on human performance capabilities, in the preparation of split share structure reform, the sponsor submission, it should perform due diligence and careful verification of the obligations, for the commitment of the matter, opinions issued by the sponsor . (Newspaper investor activism volunteer corps, members of the Shanghai New Hope Wen-da law firm partner Yan Song a lawyer)
