Category: Money tips Release Date: 2007-05-06
Introduction of Guangdong Jun CAO Health Law Law Firm
Listed in the enterprise restructuring in the employee stock ownership really know how to solve the problem? This is my provinces and cities across the country since 2004, corporate restructuring and listing courses taught, was the most frequently asked question. I think the focus is on how much stake the number of workers, simply because none of the old Company Law and Securities Law on the "public offering of securities" to this important legal concepts defined. The new "Securities Law" and "Company Law" and "Initial Public Offering and Listing Management Measures" (This article is referred to as "new" approach "") after the implementation of employee stock ownership whether the problem is there solution?
The new "Securities Act" the first distinction between "public offering" and "non-public offering" securities issued by two kinds of methods and define an extension of a very broad concept "public offering of securities." The new "Securities Law" Article of the public offering of securities is defined as: (1) to issue securities without a specific object. This is the point to the public issue of securities, issue of non-specific nature of the object, is one of the characteristics of the public offering. (2) accumulated more than 200 people to a specific object issuance of securities. The Law Committee of the NPC Standing Committee Li Fei, deputy director of the editor of the "Securities Law (Amendment) Interpretation (2005 edition)" pointed out that the "specific objects" includes the issuer's internal staff, such as shareholders, employees and their relatives, friends, etc. as well as the issuer-linked companies, institutions and personnel; the other is institutional investors such as fund management companies and insurance companies. On the number of people defined as "cumulative" The goal is to prevent the issuer by more than 200 people many times to no specific target issues securities regulatory authority to circumvent the approval and supervision. Commission Vice Chairman Gui Minjie editor of the "old and new company law provisions of the Securities Act of concise interpretation of control," said a trust or a principal-agent such means as an indirect holding of securities, will merge the actual number of clients in order to prevent circumvention of "more than two 100 people "issue. Related to this is that the new "Company Law" 79th article provides for the establishment Inc., there should be less than 200 for two or more sponsors, more than half of which shall be the sponsor of a residence in China. Law Committee of the NPC Standing Committee, editor of An Jian, deputy director of the "Company Law Interpretation (2005 edition)" noted that the new "Company Law" under Article 200 79th to below the maximum limit the number of sponsors, mainly in order to protect the public interests, to prevent some people through the establishment of the company to achieve the illegal fund-raising purposes. (3) laws, administrative regulations and other acts of distribution. This is a general provision. (4) non-public offering of securities shall be by advertisement, public and open manner, to induce and disguised. Ie less than 200 securities issued by a particular object may not use advertising, public persuasion and disguised open manner, otherwise they belong to public offering, which is to define means of distribution are from the public offering of the situation.
In view of public offering of securities with a wide range of public, involve the general interests of investors, the new "Securities Law", Article also provides that public offering of securities must comply with laws and administrative regulations of the conditions and according to the law reported to the State Council securities regulatory bodies authorized by the department or the State Council for approval; without legal approval, no unit or individual shall not issue public securities.
The new "Securities Law" and "Company Law" of the above requirements for the employee stock ownership problems identified ideas and direction. "Workers" can be understood as a new "Securities Law" of Article X of the so-called "specific objects." If the ESOP shares of shareholders of the Company led to no more than 200 people, then the areas are non-public offering of stock, employees can serve as a sponsor or a shareholder holding directly. If the ESOP shares of shareholders of the Company led to more than 200 people, whether through direct ownership means, or through indirect holding methods, such as trust, commission, holding company, ESOP Association, trade unions holding, etc., belongs to areas of public offering of shares must be reported to the Securities and Futures Commission approval, overt or covert unauthorized or constitute a public offering of stock behavior. In other words, as long as the report had been approved by the SFC, employee stock ownership led to the number of shares of company's shareholders can be more than 200 people. At this time, shares of the company is just part of a public offering of stock, but not publicly traded companies. At this point, Employee Stock Ownership issues in the law seem to be easily resolved.
But the question now is, how does it work? January 1, 2006 set up under the old Corporation Law of the shares in the company or its shareholders ESOP Shareholders with more than 200 people, the need to regulate extensively and how? According to media reports, the Commission is drafting "the first public offering of shares listed on the management and do not approach" and is ready to release two full-time is responsible for the establishment of such initial public offering of shares listed on the circumstances of the declaration without the approval and supervision. Perhaps, therefore, December 23, 2005, the State Council issued the SCS [2005] No. 62, the text "on the good implementation of the amended Company Law and Securities Law on the work of the notice" clearly pointed out that "in the relevant supporting requirements prior to release, to prevent the indiscriminate investments and junk securities. Securities and Futures Commission in addition to continuing a normal public offering of stock and accept the application publicly traded, the other public offering of stock temporarily accept an application for business registration authorities at all levels, is also temporarily accepted corresponding register to apply. "
New "approach" Article 25 provides that the issuer shall not be any of the following circumstances: Recently, within 36 months without the approval of the statutory authority to arbitrarily open or disguised public offering of the securities over; or related offenses, although committed in the 36 months ago, but the state is still continuing. "Public offering of securities to disclose the content and format of company information criterion No. 1 - a prospectus" (2006 Amendment) Article 38 requires the issuer trade unions that had existed shareholding, shareholding ESOP Association, trust holdings entrusted to hold the number of shares or shareholders, more than 200 people, and shall provide a detailed disclosure of the shares of the formation of the causes and evolution; conducted clean-up should indicate whether there are potential problems and potential risks, and related subjects such as accountability. It seems so far due to employee stock ownership in any way lead to the number of shareholders of companies with more than 200 at present to apply for an IPO and listing is still relatively difficult, could be expected according to the China Securities Regulatory Commission is to be enacted separately, "Initial Public Offering without market-based management "to regulate only after the official launch initial public offerings and listing process.
