证监会上市公司并购重组审核委员会工作规程.doc

NOTICE ON DISSEMINATION OF THE REGULATIONS ON LISTCO M&A AND RESTRUCTURING REVIEW COMMITTEE OFCHINA SECURITIES REGULATORY COMMISSIONZheng Jian Fa 2007 No. 94Various Listing Companies: In order to guarantee the publicity, equitability and justice of the work relating to the verification review of the merger, acquisition and restructuring of the listing companies, improve the quality and transparency of the MA & Restructuring Review, China Securities Regulatory Commission hereby set up the Listco MA & Restructuring Review Committee within the Issuance Review Committee and formulated and promulgate this Regulations on Listco M&A and Restructuring Review Committee of China Securities Regulatory Commission.July 17, 2007 REGULATIONS ON LISTCO M&A AND RESTRUCTURING REVIEW COMMITTEE OF CHINA SECURITIES REGULATORY COMMISSIONCHAPTER I. GENERAL PRINCIPLEArticle 1. In order to guarantee the adherence to the principles of publicity, equitability and justice throughout the work relating to the verification review of the merger, acquisition and restructuring of the listing companies, improve the quality and transparency of the MA & restructuring review, these Regulations are hereby formulated in accordance with the relevant provisions on merger, acquisition and restructuring of listing companies.Article 2. China Securities Regulatory Commission (hereinafter referred to as “CSRC”) hereby set up the Listco MA & Restructuring Review Committee (hereinafter referred to as “MA & Restructuring Committe”) within the Issuance Review Committee.These Regulations shall apply to the following MA and restructuring matters under review by the MA & Restructuring Committee: (1) that constitutes a material asset restructuring under the relevant provisions of CSRC; (2) that the Listco uses newly increased shares to purchase asset from a particular seller; (3) that the Listco implements merger or division; (4) Other MA and restructuring matters set forth by CSRC.Article 3. MA & Restructuring Committee shall review the application documents submitted by the applicant for MA and restructuring and the preliminary review report of the relevant functionary departments of CSRC in accordance with the laws and administrative regulations including the Company Law of the Peoples Republic of China, Securities Law of the Peoples Republic of China, as well as the regulations of CSRC.MA & Restructuring Committee shall vote on the application for MA and restructuring by casting ballots so as to issue the review conclusion.CSRC shall make decisions on granting or not granting approval to the application for MA and restructuring in accordance with the statutory terms and procedures.Article 4. MA & Restructuring Committee shall perform its duties through the Work Meeting of MA & Restructuring Committee (“MA & Restructuring Committee Meeting”).Article 5. CSRC shall undertake the daily administration of the affairs of MA & Restructuring Committee and the appraisal and supervision of the members of the MA & Restructuring Committee. CHAPTER II. COMPOSITION OF MA & RESTRUCTURING COMMITTEEArticle 6. MA & Restructuring Committee shall be composed of the professional personnel of CSRC and relevant experts outside of CSRC that are retained by CSRC.MA & Restructuring Committee shall have 25members. Of which there are 5 CSRC personnel and 20 non-CSRC personnel.MA & Restructuring Committee shall have 5 meeting convening members.Article 7. The members of the MA & Restructuring Committee shall have a term of office for one (1) year for each and every tenure and may serve consecutive terms if reelected, for a maximum up to 3 consecutive tenures.Article 8. Members of MA & Restructuring Committee shall meet the following conditions: (1) Adhering to principle, square and clean, loyal to ones duty and strictly abiding by the laws, administrative regulations and by-laws of the State; (2) Being familiar with the MA and restructuring business of the Listco and the related laws, administrative regulations and by-laws; (3) Being at home with the professional knowledge of the industry in which it engages and having esteemed reputation in its particular professional field; (4) Having no record for violation of laws and disciplines; (5) Other conditions deemed necessary by CSRC.Article 9. Members of MA & Restructuring Committee that have committed any one of the following acts shall be dismissed by CSRC: (1) The member who has violated laws, administrative regulations and by-laws and the review work disciplines of the MA & Restructuring Committee; (2) The member who has failed to perform ones duty of diligence according to the provisions of CSRC; (3) The member who has personally submitted resignation; (4) The member who has failed to attend the MA & Restructuring Committee Meeting without reason on more than two occasions; (5) Other circumstances in which the member is deemed by CSRC as not suitable for the office of a member of MA & Restructuring Committee.The dismissal of members of MA & Restructuring Committee shall not be subject to the factors whether the tenure is expired. After having dismissed a member of MA & Restructuring Committee, CSRC shall timely appoint new members of MA & Restructuring Committee.CHAPTER III. MA & Restructuring Committee and Duties of MembersArticle 10. The duties of the MA & Restructuring Committee are: Carry out examination and review of the Listco application for MA and restructuring in accordance with the relevant laws, administrative regulations and relevant provisions of CSRC in order to determine whether the application meets the related conditions; carry out examination and review of the relevant materials and opinions issued by securities service institutions such as financial advisor, accounting firm, law firm and asset valuation institution and related personnel; carry out examination and review of the preliminary review report issued by the relevant functional departments of CSRC; propose review opinion in respect of the application for MA and restructuring according to law.Article 11. Members of MA & Restructuring Committee shall participate in the MA & Restructuring Committee Meeting in their personal capacity, perform their duties according to law, independently issue review opinion and exercise voting right.Article 12. Members of MA & Restructuring Committee may solicit the materials related to the applicant for MA and restructuring necessary for performing their duties via the relevant functional departments of CSRC.Article 13. Members of MA & Restructuring Committee shall comply with the following provisions: (1) Attend the MA & Restructuring Committee Meeting according to the requirements and perform duty of diligence in the review practice; (2) Keep the secrets of the State and the trade secrets of the parties involved in MA and restructuring confidential; (3) Not to disclose the discussions, voting results and other relevant information of the MA & Restructuring Committee Meeting; (4) Not to seek direct or indirect interest for oneself or others by using the capacity of a member of MA & Restructuring Committee or non-public information obtained in the performance of ones duty; (5) Not to maintain any interest relationship with the applicant for MA and restructuring, not to accept fund, articles and other interests directly or indirectly from the parties involved in MA and restructuring and relevant units or individuals, not to hold any shares of Listco under review, not to contact the above units or personnel in private; (6) Not to commit any acts pertaining to colluding with other members of MA & Restructuring Committee or enticing other members of MA & Restructuring Committee to fabricate voting result; (7) Other relevant regulations of CSRC.Article 14. Members of MA & Restructuring Committee shall be obliged to report to CSRC any Parties involved in MA and restructuring and other units or individuals that attempt to influence them through illicit means.Article 15. When carrying out review of the application documents for MA and restructuring, the members of MA & Restructuring Committee that fall into one of the following events shall timely propose for recusation: (1) The member himself (herself) or his (her) relative assuming the office of director, supervisor, manager or other officers of the party involved in MA and restructuring or the professional institution retained by that party (including independent director, ibid) ; (2) The member himself (herself) or his (her) relative or the employer of the member hold shares of the company under application for MA and restructuring and therefore may affect his or her impartial performance of public duties; (3) The member himself (herself) or his (her) relative or the employer of the member have provided sponsoring, underwriting, financial consulting, auditing, valuation, legal and advisory services to the parties involved in MA and restructuring in the past two years that may hinder the fair performance of their duties; (4) The company or organization in which the member himself (herself) or his (her) relative assume offices of director, supervisor, manager or other officers is in competition with the parties involved in MA and restructuring and the professional institution retained by them that may prevent the members from fair performance of their duties, if confirmed; (5) Prior to the convening of the MA & Restructuring Committee Meeting, the members have contacted with the parties involved in MA and restructuring and the professional institution retained by them and such contact may affect the fair performance of their duties; (6) Other circumstances deemed by CSRC that may give rise to conflict of interest or by the members that may affect the fair performance of their duties.The relative referred to above shall mean the spouse, parents, offspring, brothers and sisters, parents of spouse, spouses of offspring and spouses of brothers and sisters of the members of MA & Restructuring Committee.Article 16. If the applicant for MA and restructuring and other relevant units and individuals believe that the members of MA & Restructuring Committee have actual or potential interest conflict with the applicant, and such conflict of interest may affect the members of MA & Restructuring Committee from fair performance of their duties, when submitting the application documents for MA and restructuring to MA & Restructuring Committee Meeting for review, the applicant may submit to CSRC a written application demanding the recusation of the relevant members of MA & Restructuring Committee together with an explanation for justification.In view of the written application submitted by the applicant for MA and restructuring and other relevant units and individuals, CSRC shall decide on whether the relevant members of MA & Restructuring Committee shall be recusable.Article 17. After accepting appointment, the members of MA & Restructuring Committee shall undertake to comply with the relevant provisions and disciplinary requirements of CSRC to the members of MA & Restructuring Committee, seriously perform duties and accept the examination and supervision of CSRC. CHAPTER IV. MA & Restructuring Committee MeetingArticle 18. MA & Restructuring Committee shall conduct review by convening the MA & Restructuring Committee Meeting, Each time there should be 5 members of MA & Restructuring Committee to participate in MA & Restructuring Committee Meeting, and each meeting shall have 1 convener.Article 19. MA & Restructuring Committee Meeting shall vote through casting registered ballot.The voting shall have affirmative or negative votes, members of MA & Restructuring Committee shall not abstain. More than 3 affirmative votes shall suggest approval, affirmative votes less than 3 votes shall suggest non-approval.Members of MA & Restructuring Committee shall put down their reasoning on their votes when casting ballot.Article 20. When the MA & Restructuring Committee Meeting review the Listcos application matters for MA and restructuring, the relevant CSRC departments shall, three days prior to the convening of the MA & Restructuring Committee Meeting, deliver the meeting notice, application documents for MA and restructuring and the preliminary report of the relevant CSRC departments to the participating members for signature confirming their receipt, at the same time post the name list of the applicant for review at the MA & Restructuring Committee Meeting, meeting time, letter of commitment of the related parties and the name list of the participating members on the website of CSRC.Article 21. Prior to the commencement of the MA & Restructuring Committee Meeting, members shall execute the representation pertaining to their contacts with the applicant for MA and restructuring and the professional institutions retained by them or related personnel, and shall submit the same to CSRC for its record.Article 22. Members of MA & Restructuring Committee shall carry out review of the application matters related to MA and restructuring in an independent, objective and equitable manner in accordance with the laws and administrative regulations and the provisions of CSRC in conjunction with their own professional knowledge.Members of MA & Restructuring Committee shall carry out comprehensive review of the application for MA and restructuring submitted by the applicant and the preliminary review report issued by the relevant CSRC departments with an attitude of prudence and responsibilities. Upon doing review, members of MA & Restructuring Committee shall fill in the personal review opinion on the work manuscript: (1) If the member of MA & Restructuring Committee has objections to the issues and review opinions singled out from the preliminary report for attention, the member shall provide his or her well-grounded and definite review opinion in respect of the relevant contents in the work manuscript; (2) If the members of MA & Restructuring Committee deem that the applicant is involved in problems other than the issues singled out from the preliminary report for attention, the members shall provide well-grounded and definite review opinion in respect of the relevant contents in the work manuscript; (3) If the members of MA & Restructuring Committee deem that the applicant is involved in major problems pending investigation and verification that may affect a definite judgment, the members shall provide well-grounded and definite review opinion in respect of the relevant contents in the work manuscript.At the MA & Restructuring Committee Meeting, the members of MA & Restructuring Committee shall issue their personal review opinion based on their respective work manuscript and, in view of the discussions at the meeting, improve the personal review opinion and record the same on the work manuscript.On the basis of sufficient discussions, MA & Restructuring Committee Meeting shall work out its review opinion on the application for MA and restructuring submitted by the applicant, and hold voting on whether or not the application for MA and restructuring submitted by the applicant meets the required conditions.Article 23. Before MA & Restructuring Committee Meeting has worked out any review opinion to the application for MA and restructuring submitted by the applicant, it is allowed to invite the parties involved in MA and restructuring and the representatives of the professional institution retained by them to be present at the meeting to state their opinion and answer enquiries from the members of MA & Restructuring Committee.Without the consent of CSRC, parties involved in MA and restructuring and other units and individuals shall not disclose any enquiries, opinions and relevant representations made to the members of MA & Restructuring Committee.Article 24. In accordance with the needs of review work, MA & Restructuring Committee may invite the experts other than the members of MA & Restructuring Committee to provide their professional opinions, but the external experts shall have no voting right.Article 25. The conveners of the MA & Restructuring Committee Meeting shall undertake to convene the MA & Restructuring Committee Meeting in accordance with the relevant provisions of CSRC, organize the participating members to express their opinions and hold discussion, summarize the review opinions of the MA & Restructuring Committee Meeting, organize voting and declare the voting result.Upon conclusion of the MA & Restructuring Committee Meeting, members present at the meeting shall affix their signatures on the meeting records including the minutes of meeting, review opinion and voting result, etc. for confirmation, and submit their work manuscript.Article 26. After the MA & Restructuring Committee Meeting has voted on the application for MA and restructuring submitted by the applicant, CSRC shall issue the voting result on its website.After receiving the voting result and review opinion of the MA & Restructuring Committee Meeting in respect of the application for MA and restructuring, the CSRC departments shall provide written feedback to the applicant for MA and restructuring and the financial advisor retained by the applicant.Article 27. In the occurrence of apparent difference between the review opinion and the voting result or the circumstance that the voting result is obviously unfair at the MA & Restructuring Committee Meeting, CSRC may carry out investigation and make decisions on whether or not granting approval to the application matters for MA and restructuring.Article 28. During the period after the application form for MA & Restructuring has been cleared of review at the MA and restructuring Committee Meeting until CSRC makes decision o