Case playback:

 

　　A Limited by Share Ltd was founded in 1987 March, May 29, 1998 in Shenzhen stock exchange. Due to poor management, 2003, 2004, 2005 for 3 consecutive years of losses, in 2006 May to suspend the listing. In 2006 September, the A company 29.45% equity transfer of limited company B to C investment. In 2009 January, A released the share-trading reform scheme. In March, the announcement "suspected of violating securities laws and regulations" to be investigated by the securities regulatory bureau. In 2009 August, A company intends directed the purchase of additional D real estate development company the equity of 100%, D company will account for A company issued 60% of the total share capital. The real estate regulatory policy impact, the Commission will defer to accept real estate development enterprises reorganization of the application, the issuance of notes on the stranded, released in November 10, 2010 notice of termination. In 2011 April, A company and E company planning a major asset reorganization matters, and reached a preliminary intention. Because E company has not obtained the approval document of the competent department, in July 27, 2011 issued a notice of termination.

 

　　Intensive analysis:

 

　　As a common way of industry upgrade listing Corporation reorganization and resources integration, F has become a very important economic phenomenon in western developed countries. Since the nineteen ninties beginning, since the establishment of the securities market of China's listing Corporation began restructuring, then booming. Restructuring can keep the listing Corporation listing qualifications and rights to a certain extent, from ST, PT and delisting, related party debt liquidation, for the expansion of business scale, the adjustment of product structure of enterprises, improve the quality of assets, spread the investment risks, and improve business performance has important role. But in reality, there are also some listing Corporation using recombinant for speculation, and even false reorganization, vicious reorganization, seek two class market profits. Corporate restructuring is a complex economic phenomena, clear legal characteristics and, involves all aspects of the adjustment of interests, conflicts of interest and potential risk will produce a variety of forms. If the requirements of internal relation and law between regardless of business and factors, one-sided pursuit of scale and short-term interests, easy to induce chaos in business management, business, core business ability of desalination. Restructuring can only reasonable and legitimate to bring new development opportunities for enterprises, and blind recombination may ruin the future of enterprises.

　　A. asset restructuring risk

　　1, illegal procedure

　　(1) the listing Corporation without approval for the implementation of a major reorganization of assets, it shall be ordered to make corrections, can take supervision conversation, issuing a letter of warning of such regulatory measures; if the circumstances are serious, shall be given a warning, fines, and may take from entering the market for the relevant responsible persons of the measures;

　　(2) the listing Corporation, the state-owned shareholder violates the provisions of relevant laws and regulations, the transfer of shares and caused the loss of state-owned assets, the state-owned assets supervision and administration institution may order the state-owned shareholders to take measures to correct within a time limit; listing Corporation, the state-owned shareholder of the responsible person and other responsible persons shall be liable for compensation, and the given disciplinary sanctions in accordance with law; suspected of a crime, transferred to the judicial organ for handling according to law.

　　2, illegal disclosure

　　(1) the listing Corporation or other information disclosure obligor fails to submit the report of a major reorganization of assets, or submit the report have false records, misleading statements or major omissions, it shall be ordered to make corrections, in accordance with the "Securities Law" article 193rd shall be punished; if the circumstances are serious, shall be ordered to stop the restructuring activities, and can take on the market. The relevant responsible persons of the measures.

　　(2) the listing Corporation or any other obligor of information disclosure did not disclose significant assets reorganization information in accordance with the relevant provisions, or the information disclosed false records, misleading statements or major omissions, it shall be ordered to make corrections, in accordance with the "Securities Law" provisions of article 193rd shall be punished; if the circumstances are serious, shall be ordered to stop the restructuring activities, and can take the market. The measures for the relevant responsible persons; suspected of a crime, shall be transferred to the judicial organ for investigation of criminal responsibility.

　　(3) any knowledge of a major reorganization of assets information personnel in the relevant information in accordance with the law before the public, leak the information, or suggest others to buy and sell, sale of a major reorganization of assets securities, listing Corporation by spreading false information, manipulation of the securities market or engage in fraudulent activities, in accordance with the "Securities Law" article 202nd, article 203rd, article 207th shall be punished; suspected of a crime, shall be transferred to the judicial organ for investigation of criminal responsibility.

　　3, perform properly

　　A major reorganization of assets for the first time after the announcement of the resolutions of the board of directors, and other non fully legitimate reasons for trading director of listing Corporation, revocation, suspension of the restructuring plan or make a substantial modification of the restructuring plan (including but not limited to change the main trading partners, change the main target assets), the China Securities Regulatory Commission will be based on the relevant provisions of the listing Corporation, the opposing party in the trading, securities service institutions and other units and related personnel to take regulatory measures, and shall be investigated for legal responsibility according to law.

　　B. debt restructuring risk

　　Debt restructuring is conducive to the listing Corporation from the loss, the reorganization of resources, sustainable and stable development of company. However, the listing Corporation in order to avoid delisting shell protection, transfer profit objective, blindly to whitewash financial report, make a profit, but can not improve the financial condition, profitability, investors, creditors will eventually be abandoned, and get the proper legal sanctions.

　　1, forge, alter accounting vouchers, accounting books, false financial and accounting reports are prepared, which constitutes a crime, shall be investigated for criminal responsibility according to law. With the conduct, does not constitute a crime, be informed by the financial department of the people's government at or above the county level, the unit can be a fine of five thousand yuan to one hundred thousand yuan fine; the directly responsible persons in charge and other persons directly responsible, and may be imposed a fine of three thousand yuan of above fifty thousand yuan of the following; belonging to national staff, also shall by their units or the relevant units shall be given the administrative sanction of removal from office or even dismissal; the accounting personnel, and the financial department of the people's government at or above the county level shall revoke the certificate of accounting professional.

　　2, incite, instigate, compels accounting offices, accounting personnel and other personnel to forge, alter accounting vouchers, accounting books, false financial and accounting reports are prepared or conceal, intentional destruction shall be kept in accordance with the accounting vouchers, accounting books, accounting statements, which constitutes a crime, shall be investigated for criminal responsibility according to law; if no crime is constituted, and may be imposed a fine of five thousand yuan of above fifty thousand yuan of the following; belonging to national staff, should also be given administrative punishment of demotion, removal from office, expelled by the unit or units concerned according to law.

　　C. share repurchase risk

　　Listing Corporation through repurchase shares to control the stock, to optimize the capital structure, dividend, instead of increase or stabilize the stock price, but also easy to induce the manipulation of stock prices, misleading investors, damage the interests of creditors and other illegal behavior. Countries (regions) of share repurchases are made more stringent requirements, the existing laws, regulations, China has put forward the general principles and provisions.

　　1, listing Corporation repurchase of public shares, not in accordance with the provisions of the China Securities Regulatory Commission for the record, have the right to request it to suspend or terminate the repurchase of shares, the company and the relevant responsible persons shall be punished according to law;

　　2, listing Corporation repurchase shares in existence false records, misleading statements or major omissions, the China Securities Regulatory Commission shall order it to rectify the matter, on the company and the relevant responsible person will be punished according to law;

　　3, the listing Corporation repurchase shares fraud, market manipulation and insider trading, the China Securities Regulatory Commission will be punished according to law; constitute a crime, shall be transferred to the judicial organ to investigate.

　　D. equity transfer risk

　　Limited by Share Ltd is a typical Capital company, to the free transfer of shares is the basis of existence. Because of the different types of shares, transfer of shares has simplified the procedure, but without the consent of the company or other shareholders agreed agency. But because of the asymmetric information and principal-agent, easy to damage the legitimate rights and interests of the company or other shareholders in equity transfer process. But the state-owned equity multi-level principal-agent, moral hazard is more important to the agent. Therefore, the law in support of the free transfer of shares at the same time, made many restrictions and penalties.

　　1, the board of directors of the listing Corporation fails to perform the obligations of faithfulness and diligence, using acquisitions to seek the improper benefit, the China Securities Regulatory Commission to take supervision conversation, issuing a letter of warning of such regulatory measures, can be identified as improper candidates. Articles of association of the listing Corporation involved in corporate control rights in violation of laws, administrative regulations and the provisions of the provisions of the CSRC shall order it to correct, china.

　　2, the listing Corporation of controlling shareholders and actual controllers in the transfer of control of the company, the company's outstanding debt, not to lift the company to provide guarantee, other circumstances or not to damage the interests of the company to make corrections, the China Securities Regulatory Commission shall be ordered to make corrections, shall be ordered to suspend or stop the acquisition activities. The target board of directors of the enterprise fails to take effective measures to promote the company's controlling shareholder, actual controller to correct, or after the completion of the acquisition have failed to push the acquirer commitments, arrangement or guarantee, the China Securities Regulatory Commission related directors can be identified as improper candidates.

　　3, in state-owned shareholders to transfer the shares of listing Corporation, listing Corporation and the transferor, transferee commits any of the following acts, the state-owned assets supervision and administration authority shall require the transferor to terminate the listing Corporation shares transfer activity, when necessary, bring a lawsuit to the people's Court: the transferor, listing Corporation does not fulfill the corresponding internal decision-making procedures, approval procedures or beyond the transfer of the shares of the listing Corporation permission, unauthorized; to the transferee fails in the commitment period of time for a major reorganization of assets of the listing Corporation. Persons in charge directly responsible for the above behavior of the transferor, the listing Corporation and other directly responsible personnel, by the state-owned assets supervision and administration institutions or enterprises shall be given disciplinary sanctions according to authority, resulting in the loss of state-owned assets, shall be liable for compensation; due to the transferee, resulting in the loss of state-owned assets, the transferee shall indemnify the transferor the economic loss according to law; suspected of a crime, shall be transferred to the judicial organ.

　　In this case, A hopes to improve the operating conditions through reorganization, keep the "shell resources". But illegal information disclosure by the Commission's investigation, a plurality of the restructuring plan will also due to various reasons stranded. Factors in addition to relative party, A company's main business is unknown, excessive debt, method is wrong is the main cause of failure of the restructuring.

 

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