从公司治理视角看上市公司并购（中英文版）

公司治理结构
《公司法》第四章从立法层面确立了股份有限公司和上市公司的公司治理中股东大会、董事会和高管层、监事会之间三权分立、相互制衡的模式。
股东组成股东大会作为公司的权力机构行使《公司法》和公司章程赋予的职权；股东大会选举的董事组成董事会对股东大会负责，代表公司运营公司的财产并委任高级管理人员执行。股东大会和职工民主选举产生的监事组成监事会，监督董事会和高级管理人员行使职权。
由此可见，上市公司股东对公司的影响力主要体现在股东对股东大会、董事会和高管层三个层面可施加的影响。
万科分析
从股东大会层面分析，在主要股东安邦表态支持万科管理层后，万科方（包括华润集团、安邦和万科管理层）所持万科股份比例与宝能系势均力敌。宝能系以其所持股份所享有的表决权还不足以对万科股东大会的决议产生重大影响。
从董事会层面来看，由于每一名董事享有一票表决权，董事会作出决议应至少经全体董事的过半数通过，股东对董事会决策的影响力通过争取董事席位实现。根据《公司法》和万科的公司章程，与公司经营相关的事项中只有十分重大的资产处置和对外担保才需要股东大会审批，万科的主要经营管理决策权还是在董事会手中，例如聘任和解聘包括总裁在内的高级管理人员。因此，宝能系如希望对万科经营管理施加影响力，则需要通过争取董事席位来实现。
万科现任董事的任期均将于2017年3月届满。在本届董事会任期届满前，宝能系如希望获取董事席位，从现任董事辞职到董事会通过其提名的董事候选人再到召开股东大会补选董事等各个环节，均需要万科董事会的配合。在万科高管层明确表态宝能系不受欢迎的情况下，万科董事会尽可以通过各种合法、合规的方式不予配合。宝能系若希望成功提名董事还需依赖《公司法》和万科章程赋予公司股东的自行召集股东大会和提案权。
根据《公司法》第101条第二款，董事会与监事会不履行召集股东大会会议职责的，连续90日以上单独或者合计持有公司10%以上股份的股东可以自行召集和主持。根据《公司法》第102条第二款，单独或者合计持有公司3%以上股份的股东可以在股东大会召开十日前提出临时提案。据此，理论上在万科董事会未能积极作为的情况下，宝能系作为持有万科10%以上股份的股东可以请求召集临时股东大会，提出有关罢免或补选董事的提案。
但在实际操作中，宝能系无论是在罢免董事环节还是将其提名的董事候选人提交临时股东大会选举环节均面临困难重重。首先，万科章程规定，董事在任期届满前，股东大会不得无故解除其职务，罢免任期未满的董事需要股东大会普通决议通过。因此，在万科本届董事会任期届满前，宝能系除需要提供罢免某些董事的合适理由之外，尚需联合其他股东确保掌握出席股东大会过半票数才能实现目的。
其次，即使可以形成董事席位空缺的局面，如果没有董事会的配合，宝能系也很难实现补选其提名的董事候选人的目标。根据万科章程的规定，董事候选人被提交到股东大会选举之前尚需履行的程序包括：经薪酬与提名委员会审查，审查通过后向董事会推荐，经董事会审议通过同意提交股东大会。若上市公司董事会不配合，宝能系提名的董事候选人未必能顺利履行章程规定的前述程序而最终提交股东大会进行选举。
结论
从公司治理角度分析，上市公司第一大股东的变更并不必然导致上市公司经营管理方面决策的变更，新的第一大股东如欲通过上市公司董事会参与上市公司的经营管理决策的，通常首先要获得上市公司董事会的配合。此外，在新任第一大股东持股比例占绝对优势的情况下，上市公司还可通过采用累积投票制选举董事的方式防止第一大股东利用简单的“一股一票”的优势控制董事选举。
Corporate governance in M&As of listed companies
In the past year of 2015, the M&A transaction that attracts the most attention must have been the case between Baoneng and Vanke. Starting from July last year, Baoneng Group has continued to increase its shares of Vanke via public market transactions. As of 24 December, Baoneng has already held 24.26% shares of Vanke and replaced the China Resources Group as the largest shareholder of Vanke. Under these circumstances, the senior management of Vanke has publicly expressed their unwelcoming attitude towards Baoneng in December. This article aims to analyze the impact of changes in the largest shareholder to a listed company from the perspective of corporate governance under the Company Law.
Structure of corporate governance
Chapter 4 of the Company Law has defined the separation and mutual monitoring of powers among the Shareholders Meeting, the Board of Directors and senior management, and the Board of Supervisors of listed companies and joint stock limited companies.
The shareholders together form the Shareholders Meeting as the company's authority to exercise powers given by the Company Law and the company’s Articles of Association; the Directors elected by the Shareholders Meeting would form the Board of Directors and are held responsible for the Shareholders Meeting to operate and manage the company’s assets and appoint senior management to execute the Board’s resolutions. Supervisors elected democratically by the Shareholders Meeting and employees will form the Board of Supervisors to monitor the exercise of powers by the Board of Directors and senior management.
Accordingly, a shareholder’s influence on a listed company is mainly reflected in the how such shareholder may have influence on the company’s Shareholders Meeting, Board of Directors and senior management.
Analysis of Vanke
Analyzing from the perspective of Shareholders Meeting, we can see that after Anbang Group, as the major shareholder of Vanke, has expressed its support for the senior management of Vanke, Vanke’s side (including China Resources Group, Anbang Group and Vanke senior management) holds about the same amount of shares in Vanke as that held by Baoneng. With this amount of shares and voting rights held, Baoneng is not able to make a significant impact on any decisions made by the Vanke Shareholders Meeting.
From the perspective of the Board of Directors, because each director is entitled with one vote and any decision made by the Board of Directors would have to be approved by at least half of the Directors, shareholders can make an impact on strategic decisions made by the Board of Directors through getting a seat in the Board of Directors. According to the Company Law and the Article of Associate of Vanke, only decisions regarding significant disposal of assets and external guarantee would need the approval of the Shareholders Meeting. Other major decisions in respect of management and operation, including the hiring and firing of senior management such as the CEO, are still held by the Board of Directors. Therefore, if Baoneng wishes to have a say in the management and operations of Vanke, it should try to accomplish that by getting a seat in the Board of Directors.
The term of Vanke’s current directors will expire in March 2017. If Baoneng wishes to get a seat among the Board of Directors before the term of the current Board of Directors expires, it needs to be aware that the resignation of current directors, nomination of candidates and the election of directors for the Shareholders Meeting would all need the co-operation of the Board of Directors. As Vanke’s senior management team has expressed their unwelcoming attitude towards Baoneng, Vanke’s Board of Directors may choose not to co-operate through various legal and compliant means. If Baoneng wishes to successfully nominate a director, it will need to rely on the right to hold the shareholders meeting and the right of proposal given by the Company Law and the Article of Association of Vanke.
According to second Paragraph of Article 101 of the Company Law, in the case where the Board of Directors and the Board of Supervisors fail to perform their duties in holding a Shareholders Meeting, a shareholder who holds or shareholders who together hold 10% or more shares for more than 90 consecutive days can convene and preside over the Shareholders Meeting. According to the second Paragraph of Article 102 of the Company Law, any shareholder who holds or shareholders who hold 3% or more of the shares may put forward an interim proposal 10 days before the Shareholders Meeting. Under these clauses, theoretically, Baoneng, as the shareholder holding more than 10% of Vanke shares, can demand to convene an interim Shareholders Meeting and propose to remove current directors or elect replacements when the Vanke Board of Directors fails to act actively in response to Baoneng’s request.
However, in practice, Baoneng would face many difficulties either in the part of removing the current director or in the part of having its candidates for directors be submitted to the shareholders meeting for election. First, the Article of Association of Vanke states that the Shareholders Meeting without any valid reasons cannot remove directors before their term expires. To remove a director before his term expires would need to be approved by the Shareholders Meeting by ordinary majority votes. Therefore, to remove directors before their terms become expired, Baoneng would have to provide proper reasons and ally with other shareholders to secure majority votes in the Shareholders Meeting.
Secondly, even though Baoneng can vacate a seat of the directors, it will still encounter much difficulty in nominating a candidate for the byelection without cooperation of the Board of Directors. According to the Article Association of Vanke, the nomination committee will screen the candidate for directors before the nomination. After screening, the candidate will be recommended to the Board of Directors to seek their approval. Upon its approval of the candidate, the Board of Directors will then submit the matter to the Shareholders Meeting for a by-election. If the Board of Directors does not wish to cooperate, the candidates nominated by Baoneng may mostly likely fail to complete these procedures to proceed to the Shareholders Meeting for election.
Conclusion
From the perspective of corporate governance, change of the largest shareholder of a listed company may not necessarily lead to changes in its decision-making power in operations and management. If the new major shareholder wishes to get involved with the management and operations of listed companies via the Board of Directors, it would first need to seek the cooperation of the current Board of Directors. In addition to that, even in the case when the new largest shareholder holds an absolute advantage in the number of shares held, the listed company can still use the cumulative voting system to elect the directors to avoid the major shareholder in controlling the election of directors based on the simple ‘one share, one vote’ method.