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Investor Protection Case - combating illegal information disclosure

source:Original    time:2016-09-13     Pageviews:642

First, information disclosure violations Netac Technology Case
In accordance with relevant provisions of the "Securities Law of People's Republic of China" (hereinafter referred to as the "Securities Act"), the China Securities Regulatory Commission for the illegal disclosure of information Netac Technology conducted a case investigation, trial, and shall inform the parties of the facts to make administrative punishment, reason, according to the parties according to the law and rights. Netac Technology party submitted a written statement to defend himself, but did not request a hearing. Party into Xiaohua, Wang Quanxiang not made a statement to defend himself. The case has been investigation, trial end.
Identified, Netac Technology illegal the following facts:
First, the failure to require the disclosure of the signing of "international storage Netac Technology Industry Park construction agreement" matters
Netac Technology 2010, when the market, the presence of super-raised funds. Second half of 2010, Netac Technology and Beihai contacted in early 2011 to determine the municipal government to negotiate with the North Industrial Park investment in building storage issues. Communication-related matters, mainly by the Wang Quanxiang advance.
In late May 2011, Beihai city government Netac Technology Industrial Park in the North Sea Electronics Industry Park project investment and construction of storage drafted an agreement requiring Netac Technology signed. Wang Quanxiang the agreement into Xiaohua made a report to the content, the two agreed to set up a wholly owned subsidiary of Science and Technology, Guangxi Netac Netac Technology Co., Ltd., signed on its behalf by Wang Quanxiang Signature.
May 28, 2011, Beihai Guangxi Netac Technology Co., Ltd. signed the "International storage Netac Technology Industry Park Construction Agreement" (hereinafter referred to as the "Agreement"), on behalf of Beihai City Mayor Wang Quanxiang and signed by both parties. Netac Technology Co., Ltd. Guangxi due was not yet established in the agreement did not cover the official seal. Cheng Xiaohua attended the signing ceremony. "Agreement" the main content Guangxi Netac Technology Industrial Co. Ltd. plans to invest in the industrial park in the North Sea electronic storage Netac International Science and Technology Industrial Park, plans a total investment not less than 20 billion yuan, including fixed assets investment of not less than 1.6 billion yuan .
May 29, 2011, "Guangxi Daily" published "electronic information industry in North Bay add new army Netac Technology Three Connaught Electronics settled," news reports said Beihai and Netac Technology such as cooperation signing ceremony was held in the North Sea. The report by number of media outlets. For the signing of the "agreement" with the Beihai municipal government concerned, Netac Technology Failing to be disclosed.
Second, the failure to require the disclosure of the signing of "international storage Netac Technology Industry Park Construction Supplementary Agreement" matters
June 27, 2011, Netac Technology Board meeting, reviewed and approved the proposal for setting up a wholly-owned subsidiary companies in the Guangxi authorizing Wang Quanxiang as executive director of Netac Technology, assist the chairman of the Board to carry out the daily work of the project investment, external cooperation; using self funds $ 30 million to establish a wholly owned subsidiary of Guangxi, chaired by Wang Quanxiang legal representative. When the board meeting considered the original to be established "in Guangxi Netac Technology Co., Ltd." name changed to "Netac Technology Investment Co., Ltd. of Guangxi."
July 14, 2011, Netac Technology announced that Guangxi Netac Technology Investment Co., Ltd. (hereinafter referred to Guangxi Netac) was completed July 12, 2011 industrial and commercial registration, Wang Quanxiang any legal representative.
Since then, the name and Guangxi Netac coincide Beihai Beihai Industrial Park Administrative Committee recommendation in terms of the requirements of Netac Technology May 28, 2011 signed the "agreement" on the make up of the official seal. According to the "agreement" copy of Beihai Industrial Zone Management Committee to provide the contents of the original agreement with the "agreement" agreed, just amended clause No. Error contract subject to "Guangxi Netac Technology Investment Co., Ltd." and stamped its official seal, inscribed date remains May 28, 2011.
August 22, 2011, Netac and Guangxi Beihai municipal government signed the "International storage Netac Technology Industry Park Construction Supplemental Agreement" (hereinafter referred to as the "Supplementary Agreement"), plans a total investment not less than 20 billion yuan, the basic terms and 2011 "agreement" agreement on May 28, only a small number were fine-tune. Wang Quanxiang capacity as executive director and general manager of Guangxi Netac and mayor of Beihai City, representing the two sides signed.
The survey found that Cheng Xiaohua aware in September 2011 "Supplemental Agreement" signed circumstances. To sign a "Supplemental Agreement" with the issue of Beihai, Netac Technology Failing to be disclosed. The above facts, the Netac Technology interim announcement, involved asking evidence transcripts, text of the agreement and documents provided by relevant departments, media reports and other evidence, sufficient to establish.
The SFC believes that the behavior of Netac Technology and associated personnel constitute illegal information disclosure.
First, China's "Securities Act" Article 67 and I will be released "Corporate Disclosure management approach" Article 30 provides that the occurrence may have a greater impact on the company and its securities derivatives trading price of important events , investors are not yet available, the listed company should "immediately" to disclose, explain why it happened, the current status and potential impact. For specific information disclosure point, three "Corporate Disclosure management approach" Article 31, the following point earlier by: Board of Directors or Supervisory Board in respect of the formation of a major event when the resolution; the parties in relation to the signing of major events when the letter of intent or agreement; directors, supervisors or senior management is aware of the major incidents and reports. "Shenzhen Stock Exchange GEM Stock Listing Rules" 7.3 further provides that: "A listed company shall in major events related to the first interim report for the first time touched the timely fulfillment of disclosure obligations following any point after :( a) the board of directors, board of supervisors Decisions by ; (ii) signed a letter of intent or agreement (whether conditional or period) when; (iii) the company (including any director, supervisor or senior manager) knows or should have known to big events. "
The present case, although signed May 28, 2011 "agreement" drafted by the Beihai, Beihai city government only official seal, Guangxi Netac Technology Co., Limited was yet to be established, no official seal, but this does not affect the "Agreement book "signed constitutes a" letter of intent signed on major events, "Netac Technology duty to disclose immediately.
In practice, listed companies with a significant counterparty signed business cooperation issues during initial consultations, negotiations reached an agreement of intent stage are often not legally binding, and also whether the final contract is in uncertain state; if it is too early disclosure, may make a listed company at the time of commercial transactions or other stakeholders bargaining negotiations at a disadvantage, may also be competitors, "free riders." However, since this stage of the negotiations, due diligence and the signing of an agreement of intent information may be the transaction price and securities investors have decided to have a significant impact on the market of listed companies to investors want to disclose relevant information as soon as possible, so as to timely disclosure of information a certain conflict between the requirement of confidentiality principles listed companies. At this time, if the listed company has enough confidence and ability to take effective control measures to guarantee that the information will not be disclosed intention, it will not be improper to use, in order to facilitate the smooth business cooperation signed a formal agreement, and to prevent "premature release""frequently disclosure", "frequent disclosure" may lead to abnormal stock price volatility, the listed company after completing the necessary regulatory procedures, may temporarily intention to disclose information. However, if the listed company has no intention of confidentiality, or can not be done strictly confidential information has been leaked, it shall be disclosed immediately, without delay. The present case, although Wang Quanxiang surveyed said the inquiry had asked the parties not to disclose the matter, but did not take any substantive Netac Technology security control measures in the second day after signing the "Guangxi Daily" reported on the matter and by number of media outlets is, Netac Technology core management staff have also been concerned at the reported case, the failure to take remedial measures immediately, contrary to the timeliness of continuous disclosure requirements for listed companies of information.
Cheng Xiaohua directly involved in the signing of the "agreement" related work; Wang Quanxiang solely responsible for storing industrial park project negotiations, contract work; Cheng Xiaohua, Wang Quanxiang in Netac Technology May 28, 2011 signed the "agreement", the pair did not information disclosure to fulfill its obligation of diligence; this illegal matter, Cheng Xiaohua, Wang Quanxiang department directly responsible person in charge.
Second, the non-disclosure of Netac Technology August 22, 2011 signed the "Supplemental Agreement" matters acts constitute further violations of information disclosure. Hearing that, if disclosed above Netac Technology have signed the "Agreement" matter, given the "Supplemental Agreement" Basic Terms "agreement" consistent with the May 28, 2011, only a small amount has been fine-tune, according to information of listed companies the principle of "importance" of disclosure, disclosure may not Netac Technology signed a "supplemental agreement" situation. However, in this case, did not disclose in the Netac Technology signed the "Agreement" matter of circumstances, this can take advantage of the opportunity to sign "Supplemental Agreement", the behavior of previously undisclosed be remedied; its undisclosed signed the "Supplemental Agreement" matters related to the continuation of important matters belong behavior was not disclosed.
Cheng Xiaohua aware in September 2011 "Supplemental Agreement" signed matters; Wang Quanxiang solely responsible for the "Supplemental Agreement" negotiations and signing; Cheng Xiaohua, Wang Quanxiang Guangxi Netac signed the "Supplemental Agreement" August 22, 2011 after the company did not disclose the information to fulfill its obligation of diligence. For this illegal matter, Cheng Xiaohua, Wang Quanxiang is directly responsible person in charge.
Netac Technology in party statements, defense material on "administrative punishment prior notice book" that the company did not receive government support timely disclosure of financial matters through an explanation, request its discretion mitigate the punishment.
After review, the Netac Technology is the case. In view of this, no longer finds that fact illegal. Meanwhile, Netac Technology is not on the "administrative punishment prior notice book" finds its failure to require the disclosure of "agreement", "Supplemental Agreement" matters raised objections concerning punishment recommendation is the lower limit of the law, considering, for Netac Technology plead extenuating inadmissible.
According to the parties illegal facts, nature, circumstances and level of social harm, according to the provisions of the "Securities Act" Article 193, the Commission made the decision on punishment:
First, ordered Netac Technology correction, given a warning, impose a 30 million fine;
Second, Cheng Xiaohua, Wang Quanxiang given a warning, and were sentenced to a fine of 30,000 yuan.
Second, Yaxing Chemical Information disclosure violations cases
In accordance with relevant provisions of the "Securities Law of People's Republic of China" (hereinafter referred to as the "Securities Act"), the China Securities Regulatory Commission Yaxing Chemical Information disclosure violations case conducted an investigation, hearing, and shall inform the parties to make a market exclusion facts, reasons and basis for the parties legally entitled to rights.
Identified, Yaxing Chemical illegal the following facts:
First, the failure to require the disclosure of related party relationships
In June 2007, Yaxing Group holds a 91% stake in its arrangement of Weifang second thermoelectric limited liability company (hereinafter referred to as the second thermoelectric) by the loan contract and the Share Pledge Agreement, respectively, to Qingdao Ji Yongchang Decoration Engineering Company Limited ( hereinafter referred to as Qingdao Jiyong Chang), Shanghai Bao Ren Chemical Co., Ltd. (hereinafter referred to as Shanghai Bao Ren) both companies provide 2 million yuan and 800 million yuan, from the two companies to the loan funded the establishment of the Shanghai international Trade Co., bridges (hereinafter referred to as Shanghai bridges). In addition to the two loans have the second thermoelectric Ji Yongchang Qingdao, Shanghai Bao Ren without any financial dealings. By the end of the investigation, Ji Yongchang Qingdao, Shanghai Bao Ren has not yet returned to the second thermoelectric above loan, and has never had to pay interest on the loan in accordance with the second thermoelectric loan contract agreement.
Shanghai to set up bridges after completion of the investigation, there have been three financial officers, including two people to Shanghai corridor Yaxing Group accredited, wages have been issued by the Yaxing Group; bridges in Shanghai Industrial and Commercial Bank, Bank of China Embassy Weifang branches were opened an account, custody Shanghai Yaxing Group's financial seal bridges, bridges in Shanghai Weifang Yaxing Group's banking business by the finance staff to handle; in addition to the Yaxing Group, Yaxing chemical the presence of sales, purchasing and business subsidiary of Yaxing chemical Weifang Yaxing stone Lake chemical Co., Ltd. (hereinafter referred to as Yaxing stone Lake), the Shanghai Foreign bridges almost no business occurs; after Shanghai since the establishment of bridges not to Qingdao Ji Yongchang , Shanghai Bao Ren been the distribution of profits. In November 2010, Shanghai bridges can not get in touch with former legal representative when dealing with the annual industrial and commercial inspection. May 2011, the leading research Yaxing Group decided to found a company without any associated person temporarily as the legal representative with the company examined.
Yaxing Chemical, Yaxing Group and Shanghai bridges provide a written description of the investigation team recognition, from all aspects of Shanghai and other bridges and business people, the Shanghai corridor controlled by the Yaxing Group, Yaxing Group and the Department of Yaxing related parties chemistry. Related involved Chenhua Sen, Cao Xibo, Zhangfu Tao, Wang Zhifeng in the survey were asked to admit Shanghai corridor Yaxing Chemical is a related party.
Yaxing Chemical in 2009 annual report, the 2010 semi-annual report, the 2010 annual report and 2011 semi-annual report were the Shanghai corridor as related party disclosures.
Second, the failure to require the disclosure of related party transactions
2009-2010, Shanghai corridor Yaxing Chemical and there are a lot of business, mainly to Shanghai corridor Yaxing Chemical Sales chlorinated polyethylene (CPE), the procurement of polyethylene (PE) from Shanghai corridor; 2011, Yaxing chemical products between Shanghai and there were fewer bridges buying and selling business.
January 2009 to June 2011, according to the semi-annual report covered the annual reporting period, related party transactions Yaxing Chemical and Shanghai bridges and related parties balances as follows:
January to June 2009, buying and selling products and exchanges between Shanghai corridor Yaxing Chemical occurred amounted to 0. January-December 2009, the Shanghai corridor Yaxing Chemical product sales 367,041,966.77 yuan, purchase products from Shanghai bridges 29,371,581.19 yuan. As of December 31, 2009, between the account balance on the Shanghai corridor Yaxing Chemical is: 96,130,555.81 yuan notes receivable, prepayments 143,352,436.80 RMB 212,600,000.00 yuan notes payable, accounts receivable 10,159,524.90 yuan in advance.
January to June 2010, sales to the Shanghai corridor Yaxing Chemical products 99,478,461.54 yuan, purchase products from Shanghai bridges is $ 0. As of June 30, 2010, between the account balance on the Shanghai corridor Yaxing Chemical is: 10,049,959.77 yuan accounts receivable, notes receivable 6,031,702.60 yuan, prepayments 186,084,158.41 yuan notes payable 57,000,000.00 yuan.
January-December 2010, the Shanghai corridor Yaxing Chemical product sales 100,339,145.30 yuan, purchase products from Shanghai bridges 60,106,666.67 yuan. As of December 31, 2010, between the account balance on the Shanghai corridor Yaxing Chemical is: 3,764,095.07 yuan accounts receivable, prepayments 27,161,750.60 yuan notes payable 57,000,000.00 yuan. January to June 2011, the Shanghai corridor Yaxing Chemical product sales is $ 0, purchase products from Shanghai bridges 6,398,717.95 yuan. As of June 30, 2011, between the account balance on the Shanghai corridor Yaxing Chemical is: Accounts receivable 12,477,595.07 yuan, prepayments 27,161,750.60 yuan.
Cf. "Shanghai Stock Exchange Listing Rules (2008 Revision)," 10.2.4 "transaction amount listed companies and related corporate occurring in more than 3 million yuan, accounting for listed companies and the latest issue of the absolute value of the net assets audited 0.5% or more of related party transactions (except for listed companies to provide security) shall promptly disclose, "and the same principles regarding transactions with related legal person listed companies occur within twelve months shall be in accordance with the continuous cumulative section 10.2.11 Article application of Article 10.2.4 of the Constitution, after calculation, the above related party transactions Yaxing chemical and Shanghai bridges occur in multiple point reached provisional disclosure requirements, however, Yaxing chemical Failing to promptly disclose these related transactions .
Commission to develop a "public offering of securities of the company disclosure content and format guidelines No. 2 <Annual Report Content and Format> (revised in 2007)," Article 45 requirements, significant association in the reporting period, the company should disclose transactions. If for certain related parties, related party transactions during the reporting period the cumulative total of $ 30 million and above accounted for the company's latest audited net asset value of more than 5% shall disclose the details. The measure, related party transactions Yaxing Chemical and Shanghai occurrence bridges were more than $ 30 million, and accounting for the company's latest audited net asset value of more than 5%, but Yaxing Chemical Failing to disclose in the relevant periodic report related transactions.
Third, according to the specified non-disclosure and Yaxing Group's operating capital flow
January 2011, in order to solve the problems left over pre-Yaxing Yaxing Chemical Group with its 985 million shares held by the pledge and Jianghua Sen Cham Investment Co., Ltd. (hereinafter referred to Cham Jianghua Sen) signed a $ 72 million loan contract. Due to lack of funds Yaxing Group, Yaxing Chemical, respectively, in April 22, 2011, June 1, through its bank accounts to pay $ 24 million to $ 12 million Cham Jianghua Sen, instead of Yaxing Group's return on Cham Jianghua Sen arrears. Yaxing Chemical said the transfer of funds to non-compliance with the review process, as well as timely disclosure. November 29, 2011, Yaxing Group, Yaxing Chemical to pay 150 million, $ 36 million for repayment of debt and other payments on behalf of Yaxing Chemical said.
August 2011, Yaxing Group due to the return of the Agricultural Bank loans have a shortfall of $ 10 million; Yaxing Chemical transfer money through their bank account of $ 10 million to Weifang Rainbow far building services ltd (hereinafter referred to as the rainbow away construction), construction accounts transferred by the rainbow far to Yaxing Group. The money is no real business background, Yaxing Chemical said the transfer of funds to non-compliance with the review process, but also not be disclosed. October 2011, Yaxing Group to return 3.8 million yuan directly to the Yaxing Chemical, and the remaining 6.2 million yuan in November 2011 along with other amounts owed by the Yaxing Group of the Yaxing Chemical be returned. Cf. "Shanghai Stock Exchange Listing Rules (2008 Revision)," Article 10.2.4 and Article 10.2.10 article on "listed companies to provide financial assistance and other related party transactions, the amount should be calculated occurred as the disclosure standards, and the three pen non-operating capital transactions by deal category in the trailing twelve month cumulative "requirement, after calculation, and Yaxing Yaxing chemical Group during the interim disclosure requirements are up to, but not in accordance with Yaxing chemical timely disclosure provisions; $ 36 million in debt for April to June 2011 for reimbursement of Yaxing Group, Yaxing chemical has not disclosed in the 2011 semi-annual report.
Fourth, the 2011 semi-annual report false records
January to June 2011, Yaxing Chemical Yaxing Stone Lake and financial costs not timely recorded total 14,760,616.43 yuan, affects profit or loss, resulting in the 2011 semi-annual report of false records. By the end of October 2011, relating to the bank loan interest Yaxing Chemical has been recognized in profit or loss.
V. Other relevant matters
November 2010, due to concealment 2009 Yaxing Chemical, Yaxing Group in 2010 to provide huge amounts of money, provision of guarantees for the Yaxing Group, I would be a criminal investigation. May 2012, I made the decision.
December 2, 2011, Yaxing Chemical announced, said Yaxing Group was November 29 Yaxing Chemical will return $ 99 million, and the return of occupied fund interest 3.82 million yuan to solve the problem of non-operating funds used.
Yaxing Chemical, Yaxing Group to actively cooperate with this investigation.
The above facts, the Yaxing Chemical related financial information, periodic reports, the written description of the unit involved, the parties ask transcripts and other evidence, sufficient to establish.
Yaxing Chemical above acts of violation of the "Securities Act" provisions of Article 63, constitute the "Securities Act" Article 193 of the violations.
Chenhua Sen longtime chairman Yaxing Group, and in 2009, 2010, concurrently chairman of Yaxing Chemical, Yaxing Chemical did not disclose the primary responsibility relationship between Shanghai and bridges associated with the transaction, and is Yaxing Chemical information disclosure violations executives directly responsible.
After Cao Xibo took over as chairman at the end of 2010 Yaxing Group, Yaxing Chemical chairman and general manager, should lead this force listed companies in addition to long-standing, correct the error, but after he took office in Shanghai corridor is aware of the case of related parties not scheduled Yaxing chemical timely disclosure, more direct decision-making in 2011, organized a matter for Yaxing Yaxing chemical Group debt, the transfer of funds to the Yaxing Group, and acknowledge January-June 2011 Yaxing chemical and Yaxing stone Lake financial expenses presence is not timely recorded thus affecting the situation of 2011 semi-annual report profit and loss, is the person in charge of the Yaxing chemical related information disclosure violations directly responsible.
Chenhua Sen parties and their agents at the hearing and written comments presented in defense, the Commission had in May 2012 to make a deal Chenhua Sen, this process belongs to the "penalty incident again", contrary to the provisions of existing laws and regulations, Shichangjinru measures to be taken against Chenhua Sen unfounded.
After review, from the physical point of view, the Commission in May 2012 to Chenhua Sen made the administrative punishment, is based on Chenhua Sen as Yaxing Yaxing Chemical Group and chairman of the board, Yaxing Chemical conceal 2009, 2010, Yaxing Group to offer huge funds for Yaxing Group provides guarantees; this administrative penalty is based on Chenhua Sen as Yaxing Yaxing chemical Group and chairman of the board, Yaxing chemical did not disclose its relationship with the related party transactions with the Shanghai corridor. From the record for audit procedures and content, the matter of the two I would have said were filed, respectively inspection, the case before the inspection, after the end of the trial, the case was filed, Yaxing Chemical also has twice issued a notice to initiate an audit ; I will check in the first case, it does not cover Yaxing chemical did not disclose its bridges with Shanghai's related party relationships and related transactions. Therefore, matters involving the case with the previous case, not "issue", I will be based on the facts of the case identified Chenhua Sen give Shichangjinru, the problem does not involve the iterative process.
Cao Xibo parties in the written defense comments made, as chemical Yaxing Yaxing Group and chairman in dealing with business issues left over by history to grasp properly, resulting in information disclosure violations occur, but there is no subjective bad faith from the company's current business situation and to consider the future development of its waiver request process.
After review, Cao Xibo raised about the survival of enterprises during the crisis to defuse illegal information disclosure and other defense reason Shizhuwunai appear legally untenable.
To sum up, in view of the parties have not informed in advance about their illegal activities on the identification presented new facts and evidence, which in the survey and to make representations, to defend himself, did not submit sufficient evidence to prove its case diligence, their statements about , to defend himself against it.
According to the parties illegal facts, nature, circumstances and level of social harm, according to the provisions of Article 193 of the "Securities Act", I would have to Chenhua Sen, Cao Xibo made the decision. Meanwhile, in view Chenhua Sen, Cao Xibo illegal nature of the poor, the consequences of serious social harm, according to the "Securities Act" Article 233 and "security market regulations" the third to the fifth of the Constitution, the Commission made the penalty decision:
One, identified as Shichangjinru Chenhua Sen, self will announce the date of the decision, the 10 years shall not engage in securities business or as a listed company directors, supervisors and senior management positions;
Second, Cao Xibo identified as Shichangjinru self will announce the date of the decision of three years shall not engage in securities business or as a listed company directors, supervisors and senior management positions.
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