中国证券监督管理委员会关于规范上市公司实际控制权转移行为有关

证监公司字[2004]1号

（Issued by the China Securities Regulatory Commission on 7 January 2004 and effective as of the date of issue.）

颁布日期：20040107 　实施日期：20040107 　颁布单位：中国证券监督管理委员会

Zheng Jian Gong Si Zi [2004] No. 1

To all listed companies：

Since the promulgation of the Administration of the Takeover of Listed Companies Procedures （the Takeover Procedures）， the market of the controlling power of listed companies have been furthered developed； and the takeover of listed companies has become more transparent and standardized， thereby promoting the innovation of the merger and acquisition market. Since the transfer of actual controlling power of a listed company affects the stable operation and continued development of the company， and the rights and interests of a vast number of medium and small shareholders， thereby affecting the normal order of the securities market， the Takeover Procedures therefore stipulate that the controlling shareholder（s） （including other persons with actual control） and the purchaser（s） shall owe a fiduciary duty to the listed company and other shareholders， and may not use the takeover of the listed company to prejudice the lawful rights and interests of the target company and other shareholders.

However during the recent period， some of the controlling shareholders of listed companies， in violation of statutory procedures， transfer voting rights of the shares they hold in the name of “equity custody” or “company custody” in advance through conclusion of agreement with the purchaser or other means， leading to actual control of the listed company by the purchaser before becoming a shareholder of the company through the voting rights of the relevant shares it controls. In such a situation， where the controlling shareholder does not fulfil its duties of a controlling shareholder； and the purchaser does not assume its responsibilities of a controlling shareholder despite in actual control of the listed company， the operation and management of the listed company is in an uncertain state， which provides the conditions for the purchaser to maliciously infringe upon the rights and interests of the listed company and other shareholders. Such acts violate the relevant provisions of the Company Law， the Takeover Procedures and the Listed Company Governance Guidelines on the takeover of listed companies.

In order to regulate the acts of transfer of actual controlling power of listed companies， to protect the rights and interests of listed companies and medium and small investors， and to safeguard the normal order of the securities market， we hereby notify you of the relevant issues， as follows：

1. The transfer of controlling power of listed companies shall be regulated and carried out according to the Takeover Procedures. Beginning from the date of issue of this Circular， the controlling shareholder of a listed company may not， in violation of statutory procedures or in avoidance of legal obligations， transfer the controlling power of the listed company in a disguised form by way of any means such as the so-called “equity custody” and “company custody”。

2. Where the takeover of a listed company is carried out by means of agreement， the controlling shareholder and the purchaser shall clearly stipulate in the takeover agreement their respective rights and obligations during the transition period from the conclusion of the takeover agreement to the change in ownership of the relevant shares， and shall adopt effective measures to ensure the stable transition of the operation and management of the listed company during the transfer of controlling power.

During the transition period， the controlling shareholder or the purchaser may not use the takeover to prejudice the rights and interests of the listed company or the medium and small shareholders， and shall abide by the following provisions：

（1） The controlling shareholder and the purchaser shall maintain the independence of the listed company and improve corporate governance in strict compliance with the requirements of the Listed Company Governance Guidelines. Prior to the change in ownership of the relevant shares， the controlling shareholder shall fulfil the duties of a controlling shareholder； and the purchaser shall fully fulfil the fiduciary duty to the target company and other shareholders in accordance with the provisions of the Takeover Procedures.

（2） During the transition period， the purchaser shall not in principle propose a re-election of the board of directors of the listed company through the controlling shareholder. Where there are indeed adequate reasons for re-electing the board of directors， the number of directors from the purchaser may not exceed one-third of the board of directors.

（3） During the transition period， the controlling shareholder and the purchaser shall ensure that the normal production and operation of the listed company is not affected. The purchaser shall not use the listed company as pledge. The listed company shall not carry out refinancing， major purchase or sale of assets or other major investment acts， except in circumstances where the purchaser is so doing to rescue the listed company that faces serious financial difficulties.

（4） The listed company and its controlling shareholder， and the purchaser shall strictly abide by the provisions of the Several Issues Concerning the Regulation of Transactions of Funds Between Listed Companies and Their Affiliates and the Provision of Security to External Parties by Listed Companies Circular （Zheng Jian Fa [2003] No. 56）。 The listed company shall not provide security to the purchaser or its affiliates. The purchaser and its affiliates shall not appropriate the funds or assets of the listed company.

（5） After the takeover is completed， the purchaser shall conduct a self-examination to state the details on the adjustment of assets， personnel， business， and operation and management of the listed company during the transition period， the standardization of operation of the listed company during the transition period， and whether there are circumstances that prejudice the interests of the listed company， such as provision of security or loans by the listed company to the purchaser or its affiliates.

The board of directors of the listed company shall issue a clear opinion on the self-examination report of the purchaser， employ a certified accounting firm or financial consultants with securities business qualifications to conduct a special examination of the operation of the company during the transition period， and shall issue an opinion on a comparison of the business performance of the company before and after the transfer of actual controlling power， on whether the purchaser has discharged its liabilities to the company and whether the security provided to it by the company has been released， or on other circumstances that prejudice the interests of the company. If the afore-mentioned circumstances exist， the board of directors of the listed company shall adopt effective measures to safeguard the interests of the listed company.

The self-examination report of the purchaser and the opinion of the board of directors shall be published， and shall be submitted to the agency of the China Securities Regulatory Commission of the place where the listed company is located.

3. Acts of transfer of actual controlling power of listed companies by controlling shareholders in violation of statutory procedures that occurred before the issue of this Circular shall be rectified within six months of the issue of this Circular. Where the takeover of the listed company is continued by means of agreement， it shall be standardized in accordance with Article 2 hereof. Where the board of directors has been re-elected， the directors of the listed company shall fully fulfil their fiduciary duty and prudentially handle the relevant motions. All motions of the board of directors shall be regarded as special motions， and shall be consented to by at least two-thirds of the directors. Independent directors shall express their opinions independently.

Where a purchaser has not disclosed the Listed Company Takeover Report in accordance with the provisions of the Takeover Procedures， it shall carry out supplementary information disclosure within two months of the issue of this Circular， and shall state in detail the details of the purpose of the takeover， its adjustment of the assets， business and personnel of the listed company， the follow-up plan and handling of the procedures for transfer of equity， etc.

After rectification or standardization has been carried out in accordance with the provisions of this Circular， the purchaser and the board of directors of the target company shall separately issue a self-examination report and an examination opinion by reference to Item （5） of Article 2 hereof， and shall submit the same to the agency of the China Securities Regulatory Commission of the place where the listed company is located and make a public announcement thereof.

4. In the case of an act of transfer of actual controlling power of a listed company by a controlling shareholder in violation of statutory procedures that occurred before the issue of this Circular， and the controlling shareholder of the listed company and the purchaser have not carried out rectification or standardization in accordance with this Circular， the China Securities Regulatory Commission shall order rectification in accordance with the relevant provisions of the Takeover Procedures and Zheng Jian Fa [2003] Document No. 56.

5. The provisions of this Circular shall not apply to the administration of State-owned equity of listed companies by State-owned assets business units upon entrustment by State-owned assets administration departments.

6. This Circular shall be effective as of the date of issue.