China: 原来这就是"闭环原则"

Last Updated: 21 October 2019
Article by He Xinyu and Dong Chen
Most Read Contributor in China, October 2019

随着科创板的如火如荼,针对员工持股计划的"闭环原则"被提及的次数越来越多,那么我们就来简单聊一聊到底什么是"闭环原则"。

一、"闭环原则"的出处

"闭环原则"证监会在2018年6月6日颁布的《关于试点创新企业实施员工持股计划和期权激励的指引》就已经提及,《科创板股票发行上市审核问答》中进行了援引。

为什么是创新企业和科创板?当然是跟这类企业为了实现其利益对科技创新人才的需求密不可分了。

二、"闭环原则"的内容

员工持股计划不在公司首次公开发行股票时转让股份,并承诺自上市之日起至少36个月的锁定期。发行人上市前及上市后的锁定期内,员工所持相关权益拟转让退出的,只能向员工持股计划内员工或其他符合条件的员工转让。锁定期后,员工所持相关权益拟转让退出的,按照员工持股计划章程或有关协议的约定处理。

三、遵循"闭环原则"的结果

员工持股计划遵循"闭环原则",在计算公司股东人数时,按一名股东计算,否则要穿透计算持股计划的权益持有人数。这一原则也是对《非上市公众公司监管指引第4号——股东人数超过200人的未上市股份有限公司申请行政许可有关问题的审核指引》关于股份公司中通过"持股平台"间接持股需要还原成直接持股这一规定的补充和修改。

在实践中,"闭环原则"当然并不是员工持股计划必须要遵守的,如果员工持股计划由员工持有,依法设立、规范运行,并且已经在基金业协会依法依规备案,那么也可以将员工持股计划按一名股东计算,否则的话就只能穿透计算了。

所以说,"闭环原则"是针对于员工持股计划而言,特定的主体在特定期限满足转让限制的要求,形成相对稳定的闭环结构,在计算股东人数时可被认定为一名股东原则。怎么样,现在的你明白了吧,是的,没错,原来这就是"闭环原则"。

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