Opinions on Further Regulating the Restructuring of Provincial State-owned Enterprises

In order to implement the "Notice of the General Office of the State Council forwarding the Opinions of the State-owned Assets Supervision and Administration Commission of the State Council on Regulating the Restructuring of State-owned Enterprises" ( Guobanfa (2003) No. 96) and the "Notice of the General Office of the State Council forwarding the Opinions of the State-owned Assets Supervision and Administration Commission on Further Regulating the Implementation of State-owned Enterprise Restructuring Work" (Guobanfa (2005) No. 60) to further promote the healthy restructuring of provincial state-owned enterprises , orderly and standardized, and based on the actual situation of our province, the following opinions are hereby put forward.

1. Basic procedures for restructuring

The basic procedures for restructuring provincial state-owned enterprises are as follows:

(1) Submit an application for restructuring. Enterprise restructuring must first submit a restructuring application. Supervised enterprises submit a restructuring application to the provincial government's State-owned Assets Supervision and Administration Commission, and other enterprises submit a restructuring application to their competent authorities. The restructuring application must be accompanied by a restructuring plan (including the basic situation of the enterprise, the necessity and feasibility of the restructuring, a brief idea, the direction and form of the restructuring, etc.).

(2) Review and approve restructuring applications. The State-owned Assets Supervision and Administration Commission of the provincial government conducts a preliminary review of the restructuring applications and restructuring plans submitted by the regulated enterprises; the enterprise competent departments conduct a preliminary review of the restructuring applications and restructuring plans submitted by the enterprises under its supervision. If the preliminary review meets the policy requirements, the provincial government's State-owned Assets Supervision and Administration Commission or the enterprise management department will issue an approval document agreeing to the enterprise's preparatory work for restructuring, and clarify the direction, form, formulation and approval body of the restructuring plan, etc.

(3) Formulate a restructuring plan. The enterprise restructuring plan can be formulated by the state-owned property rights holder of the restructured enterprise, or it can entrust an intermediary agency or the restructured enterprise (an enterprise that transfers state-owned property rights to the business manager of the enterprise, the enterprise's management plans to hold the equity of the restructured enterprise through capital increase and share expansion) (Except enterprises and state-owned enterprises).

(4) Conduct asset clearance, financial audit and asset evaluation. After the enterprise restructuring application is approved, the assets and capital verification, financial audit and asset evaluation of the restructured enterprise shall be carried out in accordance with relevant laws, regulations and policies.

(5) Implementation of claims and debts. The restructuring plan must clearly protect financial claims, implement financial debts in accordance with the law, and obtain the consent of the financial institution's creditors.

(6) Deliberation and approval by the Workers’ Congress. The enterprise restructuring plan (including employee resettlement plan) must be submitted to the enterprise's employee representative conference or workers' conference for review. The employee resettlement plan must be reviewed and approved by the employees' congress or workers' conference.

(7) Declaration and approval of restructuring plan. After the enterprise restructuring plan is basically mature and the attachments are complete, it will be formally submitted to the plan approval department. The department that approves the restructuring plan must organize the Provincial Department of Finance, the Provincial Department of Labor and Social Security, the Provincial Department of Land and Resources, the Provincial Administration for Industry and Commerce, the Gansu Banking Regulatory Bureau, the Provincial Federation of Trade Unions and other relevant departments to demonstrate the restructuring plan; the unit that formulates the restructuring plan will evaluate the restructuring plan based on the demonstration opinions. The plan will be modified and improved; the restructuring plan approval department will give a reply.

(8) Organization and implementation. After the enterprise restructuring plan is approved, the supervisory enterprise or other enterprise competent departments shall organize its implementation.

2. Contents of the restructuring plan

(1) Basic situation of the enterprise. Including the name, organizational structure and equity structure of the enterprise headquarters and its wholly-owned and controlled subsidiaries, ownership and asset and liability status, main business and production and operation status, financial situation in the past three years, external investments and guarantees before the restructuring or at the end of the previous year Situation etc.

(2) Basic ideas for restructuring. Including the guiding ideology and goals of the restructuring, the purpose, necessity, and feasibility analysis of the restructuring, the form of the restructuring, operating procedures, organizational leadership, etc.

(3) Employee placement plan. Including the basic information of employees, personnel structure, employment position arrangements, diversion of surplus personnel, economic compensation standards and compensation methods for employees whose labor contracts are terminated, sources and settlement channels of economic compensation, settlement of unpaid social insurance premiums, management methods for retired personnel, etc. .

(4) Asset disposal plan. Opinions on the disposal and subsequent management of corporate assets (including intangible assets, land use rights, and non-operating assets).

(5) Implementation and disposal of financial and other claims and debts.

(6) Disposal plan for proceeds from the transfer of state-owned assets of enterprises.

(7) Company equity setting and legal person governance structure.

Including the equity structure of the enterprise after restructuring and the increase or decrease ratio of state-owned capital.

(8) Calculation and sources of restructuring expenses.

(9) Enterprise development plan after restructuring.

(10) Attachments. Mainly include asset clearance, financial audit and asset assessment reports and confirmation, approval and filing documents; audit reports on the departure of legal representatives of enterprises that are restructured into state-owned enterprises without controlling or equity participation; credit certification documents and basic information of all parties involved in the reorganization; Draft agreements related to restructuring; resolutions of the workers’ congress (or workers’ conference) reviewing the enterprise’s restructuring plan and resolutions of the workers’ congress (or workers’ conference) approving the employee resettlement plan; legal opinions on the restructuring plan, etc.

3. Approval of restructuring plans

The restructuring plans of state-owned enterprises must go through the decision or approval procedures and shall not be implemented without decision or approval.

(1) Approval of restructuring applications

The restructuring applications of supervised enterprises and their subsidiaries shall be submitted to the State-owned Assets Supervision and Administration Commission of the provincial government for approval by the supervised enterprises; the restructuring applications of other enterprises shall be examined and approved by their competent departments .

(2) Approval of restructuring plans

1. The restructuring plans of large and extra-large supervised enterprises shall be submitted by the supervised enterprises to the State-owned Assets Supervision and Administration Commission of the provincial government for review, and then submitted to the provincial government for approval, or by the provincial government. The government agrees and the provincial government’s State-owned Assets Supervision and Administration Commission approves. The restructuring plan of the subsidiaries of the supervised enterprise shall be reviewed by the supervised enterprise and then submitted to the State-owned Assets Supervision and Administration Commission of the provincial government for approval.

The plans for the separation of main and auxiliary businesses and the restructuring of auxiliary businesses of large and medium-sized state-owned enterprises shall be reviewed and approved in accordance with relevant national and provincial policies and regulations.

2. The restructuring plans of other enterprises shall be reviewed by the competent departments of the enterprises and then submitted to the Provincial Government’s State-owned Assets Supervision and Administration Commission for approval; the restructuring plans of other enterprises into enterprises with no state-owned shares controlling or not participating in the shares shall be reviewed by their competent departments and then submitted to the provincial government for approval. . The restructuring plans of subsidiaries of other enterprises shall be reviewed and approved by the competent departments of the enterprises and submitted to the State-owned Assets Supervision and Administration Commission of the provincial government for review and filing.

3. Enterprise restructuring involves finance, labor and social security, land and resources and other matters. In order to improve the efficiency of approval, the restructuring plan will be approved by the approval department after organizing a joint review and demonstration by relevant departments. If the enterprise restructuring involves government public affairs management approval matters, it shall be reported to the relevant departments of the provincial government for approval in accordance with relevant national laws and regulations.

4. If the enterprise restructuring involves public listing and issuance of stocks, it shall be implemented in accordance with the "Securities Law of the People's Republic of China" and other relevant laws and regulations.

IV. Asset and capital verification, financial audit and asset evaluation

(1) After the enterprise restructuring application is approved, the restructuring enterprise must strictly follow the "further regulations forwarded by the General Office of the State Council to the State-owned Assets Supervision and Administration Commission" According to the "Notice on the Implementation Opinions on the Restructuring of State-owned Enterprises" (Guobanfa (2005) No. 60), asset liquidation, financial audit and asset evaluation shall be carried out. Asset clearance, financial audit and asset evaluation should be entrusted to an intermediary agency. The selection and recruitment of intermediary agencies shall be handled in accordance with the "Notice of the State-owned Assets Supervision and Administration Commission of the People's Government of Gansu Province on Issues Concerning Intermediary Services for the Supervision and Administration of State-owned Assets of Provincial Enterprises" (Gan Guo Ziquan (2005) No. 115); it involves land use rights and exploration rights. , Mining rights appraisal and valuation must be conducted by an intermediary agency with land or mining rights appraisal qualifications. When selecting intermediaries, accounting firms and certified public accountants that have records of violations of laws and regulations in corporate financial audits within two years before restructuring are not allowed to be hired; intermediaries and registered asset appraisers that participated in the company's last asset appraisal are not allowed to be hired; The same intermediary agency conducts financial audits and asset valuations.

(2) The results of asset clearance, financial audit and asset evaluation must be reported to the relevant functional departments of the Provincial Government’s State-owned Assets Supervision and Administration Commission for review, confirmation, approval and filing (reporting of land use rights, exploration rights and mining rights evaluation results Filing with the land and resources authorities). The results of asset liquidation and capital verification are valid for two years, that is, they are valid within two years from the base date of asset liquidation and capital verification, but a special financial audit is still required; if it exceeds two years, a new asset liquidation and capital verification will be required. The asset appraisal results are valid for one year, that is, within one year from the asset appraisal base date. If it exceeds one year, the asset appraisal must be re-assessed.

(3) Enterprises that are restructured into state-owned shares without controlling or participating shares must conduct a departure audit on the legal representative of the enterprise in accordance with relevant national regulations. Managers responsible for the decline in enterprise performance or even losses must not Participated in the acquisition of state-owned property rights of the company. A financial audit may not be used in place of a departure audit. The financial audit and outgoing audit work should be undertaken by two accounting firms respectively, and audit reports should be issued separately.

(4) When an enterprise is restructured, the real assets and intangible assets such as patents, non-patented technologies, trademark rights, goodwill, franchise rights, and land use rights that have not entered the restructured enterprise shall be transferred to the restructured enterprise. There is a fee to use.

5. Pricing, Transaction and Transfer Price Management of State-owned Property Rights Transfer

(1) Enterprise restructuring involving the transfer of state-owned property rights must enter the property rights trading market determined by the Provincial Government’s State-owned Assets Supervision and Administration Commission , and in accordance with relevant national regulations, disclose information and conduct bidding transfers. Specific transfer methods may include auction, bidding, agreement transfer, and other methods stipulated by national laws and regulations. If the transfer of land use rights, exploration rights, and mining rights is involved in enterprise restructuring, it shall be handled in accordance with relevant national laws, regulations, and regulations.

(2) The base price for transferring state-owned property rights during enterprise restructuring shall be determined by the state-owned property rights holder based on the asset evaluation results, taking into account the supply and demand situation in the property rights trading market, the market price of similar assets, employee placement, and the introduction of advanced Determined by technical and other factors.

(3) When two or more investors or strategic partners are generated through bidding, the state-owned property rights holder shall comprehensively consider various factors such as industrial affiliation, corporate strength, technical level, and funds, and follow legal procedures. Identify the final partner.

(4) If only one transferee is produced after public solicitation, there are special requirements for the transferee in key industries and fields, and the enterprise transfers the state-owned property rights of the enterprise to its holding company during the asset reorganization , in accordance with relevant regulations, transfer by agreement can be adopted with the approval of the state-owned property holding unit.

(5) In principle, the price for transferring state-owned property rights or increasing capital and shares should be paid in full. If it is really difficult to pay off the property in one lump sum, after negotiation between the transferor and the transferee, and with the approval of the state-owned property rights holder, installment payment can be adopted. The first installment shall not be less than 30% of the total price, and the remaining price shall be borne by the transferee. The transferor provides a legal guarantee and pays deferred payment interest to the transferor based on the bank loan interest rate for the same period. The deferred payment period shall not exceed one year.

(6) The net income obtained from the transfer of state-owned property rights shall be managed and used in accordance with relevant national and provincial regulations.

6. Employee Resettlement

(1) When an enterprise is restructuring, it must handle and adjust the labor relationship with its employees, formulate an employee diversion and resettlement plan, and submit it to the labor and social security department for review and filing. The employee diversion and resettlement plan mainly includes the following contents: the enterprise's personnel status and diversion and resettlement opinions; methods for changing, canceling, and re-signing employee labor contracts and collective contracts; methods for payment of economic compensation for employees whose labor contracts are terminated; continuation of social insurance relationships; Measures to deal with debts such as wages owed to employees and social insurance premiums owed by enterprises.

(2) The employee diversion and resettlement plan must be reviewed and approved by the employees’ congress or workers’ conference. Before deliberation, the plan must be sent to employees or employee representatives in advance; when making resolutions, voting shall be conducted by secret ballot. In accordance with the relevant provisions of the "Regulations on the Workers' Congress of Industrial Enterprises Under Public Ownership", the workers' congress or workers' conference must be attended by more than two-thirds of the workers' representatives or workers, and the plan must be approved by one-half of the number of workers' representatives or workers present at the meeting. Only with the above consent can the approval be passed. The employee diversion and resettlement plan after review and approval, as well as basic information such as the employee's age, length of service, years of service in the company, average monthly salary of the company, and economic compensation for employees whose labor contracts are terminated, should be made public in accordance with relevant regulations.

(3) Implement employee resettlement expenses. The economic compensation for employees whose labor contracts are terminated, the social insurance premiums of employees transferred to the social security agency for management, the repayment of debts owed to employees and the social insurance premiums owed by the enterprise shall be retained from the net assets of the restructured enterprise or the price of the transfer of state-owned property rights shall be given priority Pay.

(4) If it is restructured into a state-owned holding enterprise, the enterprise after the reorganization will continue to perform the labor contract signed between the enterprise and the retained employees before the reorganization; the working years of the retained employees in the enterprise before the reorganization shall be calculated together as the number of employees who have been retained during the reorganization. The number of years of service in the new enterprise shall be extended; the original enterprise shall not pay economic compensation to the employees who continue to be retained. If a non-state-owned enterprise is restructured, the labor relations between the restructured enterprise and its employees must be handled strictly in accordance with relevant laws, regulations and policies. Economic compensation must be paid to employees whose labor contracts are terminated during enterprise restructuring and are no longer retained. The unit that holds the state-owned property rights of the enterprise shall not force employees to use economic compensation and other expenses for investment in the restructured enterprise or lend it to the restructured enterprise (including investors of the restructured enterprise) for use.

(5) Effectively safeguard the legitimate rights and interests of employees.

In principle, the confirmed arrears of wages, fund-raising funds, medical expenses and misappropriated employee housing provident funds, as well as the enterprise's arrears of social insurance premiums, must be paid in one lump sum. After restructuring, enterprises must, in accordance with relevant regulations, promptly renew various social insurances for employees such as basic pension, unemployment, basic medical care, work injury, maternity, etc., and pay various social insurance premiums for employees in full and on time.

7. Equity Setting

(1) The equity setting must be conducive to the transformation of the enterprise's operating mechanism and the diversification of investment entities. Except where there are provisions to implement sole state-owned ownership and laws and regulations otherwise stipulate In addition, we encourage preferred companies to acquire first shares and strengthen corporate holdings.

(2) The state-owned property rights of large state-owned and state-controlled large enterprises and their important wholly-owned or controlled subsidiaries engaged in the main business of the large enterprise and the state-owned equity of listed companies will not be transferred to the management. The form of transferring state-owned property rights to management of small and medium-sized state-owned and state-controlled enterprises can be explored.

(3) When state-owned and state-controlled large-scale enterprises implement restructuring, strictly control the management to directly or indirectly hold the equity of the enterprise in various ways through capital increase and share expansion. In order to explore and implement the incentive and restraint mechanism, with the approval of the State-owned Assets Supervision and Administration Commission of the provincial government, all management members who compete for positions through open recruitment, internal competition for positions, or make significant contributions to the development of the company can hold the company through capital increase and share expansion. equity, but the management’s total shareholding generally does not exceed the holding or relative holding amount.

(4) If a supervisory enterprise or other enterprise directly or indirectly holds the state-owned property rights of a subsidiary enterprise after restructuring, its management shall not participate in the sale and acquisition of assets, increase or decrease of investment, or transactions between the enterprise and its subsidiaries. Business pricing and other behaviors and decisions.

(5) For important industries and key areas related to the province’s economic development, key state-owned enterprises that need to maintain a certain degree of influence and control are encouraged to introduce strategic investors to increase capital and shareholdings, or transfer part of their equity Carry out restructuring and reorganization through other methods to introduce increments to enlarge the total volume, enhance strength and improve competitiveness.

8. Supervision and Inspection

(1) In order to ensure the standardized operation of enterprise restructuring, prevent the loss of state-owned assets, and safeguard the legitimate rights and interests of employees, the State-owned Assets Supervision and Administration Commission of the provincial government will work with relevant departments to strengthen the supervision of enterprise restructuring supervision and inspection. The focus of supervision and inspection is: whether the transfer of state-owned property rights is open and transparent, checking the relevant procedures of property rights transactions and transfer agreements and contracts; whether the asset disposal is standardized, checking the arrival of transfer funds and new capital, the registration of changes in housing and land rights certificates, and the state-owned shares. Principal confirmation, divestiture and write-off asset handover management; whether employee labor relations are adjusted in place, inspection of termination, change, and re-signing of labor contracts, payment or implementation of various expenses, management of retained expenses, and employment placement of employees; To check whether financial claims have been implemented, check the creditor's rights and debt disposal agreement signed between the enterprise and the financial claims department; for state-controlled enterprises after restructuring, check the improvement of the company's corporate governance structure, internal supporting reforms, and transformation of operating mechanisms, etc.

(2) Transferring, misappropriating, concealing state-owned assets during restructuring, providing false accounting information, malicious collusion between buyers and sellers to transfer state-owned property rights at low prices, causing the loss of state-owned assets and damaging the legitimate rights and interests of employees and other illegal and disciplinary behaviors , the State-owned Assets Supervision and Administration Commission of the provincial government will seriously investigate and deal with the relevant departments, and those suspected of committing crimes will be transferred to judicial organs for processing.

(3) For intermediaries that engage in illegal practices when participating in formulating enterprise restructuring plans, conducting asset clearance and verification, financial audits, asset evaluations and legal services, the provincial government’s State-owned Assets Supervision and Administration Commission must work together with supervisory agencies and industry authorities. Conduct investigations and impose penalties; intermediaries that issue false reports shall not be entrusted with intermediary services for the restructuring of state-owned enterprises within three years from the date of discovery, and shall be held accountable accordingly.

Matters not covered by this opinion shall be implemented in accordance with relevant national and provincial regulations. State-owned enterprises in various cities and states can refer to and implement this.

Provincial Government State-owned Assets Supervision and Administration Commission