上市公司发行可转换公司债券实施办法 Issue of Convertible Bonds By Listed Companies Implementing Procedures
(Issued by the China Securities Regulatory Commission on, and effective as of, 26 April 2001.)
颁布日期：20010426 实施日期：20010426 颁布单位：中国证券监督管理委员会
PART ONE GENERAL PROVISIONS
Article 1 These Procedures have been formulated pursuant to the Company Law, the Securities Law, the Administration of Convertible Company Bonds Tentative Procedures and other relevant laws and regulations, in order to regulate the issue of convertible bonds by listed companies and protect the lawful interests of investors.
Article 2 These Procedures shall apply to applications by companies listed in China (Issuers) for the issue in China of convertible bonds to be subscribed to in Renminbi and the listing and trading of such bonds on the stock market.
Article 3 The China Securities Regulatory Commission (CSRC) exercises supervision and administration over the issue and listing, etc. of convertible bonds by listed companies in accordance with the law.
PART TWO CONDITIONS OF ISSUE
Article 4 To issue convertible bonds an Issuer shall meet the conditions of the Administration of Convertible Company Bonds Tentative Procedures.
Article 5 The securities company acting as lead distributor shall focus its examination of the Issuer on the matters set forth below and give an explanation of the same in its sponsorship letter and its opinion upon examination:
1. whether during the most recent three years and particularly the most recent year the Issuer distributed cash dividends; what percentage of the company's distributable profits were accounted for by the cash dividends; and the explanation on the distribution of cash dividends of the company's board of directors;
2. whether the Issuer's average distributable profits for the most recent three years would be sufficient to cover one year's interest on the convertible bonds;
3. whether the Issuer has made sufficient arrangements to discharge its due debts with cash;
4. whether the Issuer's core business is outstanding; whether the Issuer is competitive in its industry; whether its demonstrates relatively strong growth; and whether it has clear business development objectives for the foreseeable future;
5. whether the purpose for the proceeds is forecast to offer a relatively favourable return on investment; whether use of the proceeds from the previous issue was consistent with the original issue plan and, if the purpose of the proceeds from the previous issue was modified, whether the modification was in compliance with the relevant laws and regulations; and (unless the Issuer is a listed finance company) whether proceeds from the previous issue were invested in a financial institution such as a commercial bank or a securities company;
6. whether the Issuer's corporate governance is sound; whether operations during the last three years were in accordance with standards; whether the company's articles of association and amendments thereto comply with the Company Law and the relevant regulations of the CSRC; whether there were any serious irregularities in the shareholders' general meeting, board of directors, supervisory board or major decisions during the last three years; and whether the Issuer's senior management has been stable during the most recent three years;
7. whether the Issuer operates independently; whether it is independent in terms of its business, assets, personnel, financial affairs and organization, etc.; whether it has the ability to operate autonomously in a market-oriented fashion; and, if it produces or deals in goods, whether it has independent production, supply and sales systems;
8. whether the Issuer's assets are in the possession of the individual or legal person with actual control or in the possession of another affiliated party; and whether there are any other major affiliated transactions that prejudice the interests of the company;
9. whether the Issuer has undergone a major asset restructuring or carried out a major capital increase or reduction during the previous year and if so, whether the same was in compliance with the relevant regulations of the CSRC;
10. whether the Issuer's information disclosures during the previous three years were in compliance with relevant regulations; and whether there have been instances of penalties imposed for falsehoods, misleading statements or major omissions; and
11. other matters specified by the CSRC.
Article 6 The CSRC will not approve an Issuer's issue application if:
1. the Issuer has committed a major violation of laws or regulations during the most recent three years;
2. the purpose of the proceeds from the previous issue was changed without authorization and was not rectified in accordance with regulations;
3. the Issuer's information disclosures contain falsehoods, misleading statements or major omissions;
4. irregularities in the company's operations have resulted in serious consequences;
5. the Issuer's growth has been poor and there are material latent risks; or
6. another circumstance determined by the CSRC to seriously prejudice the interests of investors has arisen.
PART THREE SUBMISSION, EXAMINATION AND APPROVAL PROCEDURES
Article 7 Before an Issuer applies to issue convertible bonds, the shareholders' general meeting shall adopt a resolution to that effect. The resolution adopted by the shareholders' general meeting shall include at least such matters as the scale of the issue, the principles for determining and adjusting the conversion price, the coupon rate, the conversion period, the term and method for repaying the principal and paying the coupon, call and put terms, arrangements for a rights issue with existing shareholders, and the purpose of the proceeds.
Article 8 The Issuer and the relevant intermediary organizations shall prepare the application documents in accordance with the relevant regulations of the CSRC.
Article 9 The lead distributor shall be responsible for sponsoring the Issuer with the CSRC and issuing a sponsorship opinion, and for submitting the issue application documents.
Article 10 Intermediary organizations that provide services for an Issuer's issue of convertible bonds shall conscientiously perform their obligations and assume the corresponding legal liability. The lead distributor shall additionally examine the application documents for the issue of the convertible bonds. The relevant examination procedures and principles shall be handled with reference to the regulations relevant to internal audits for the issue of shares. The lead distributor shall report any major problems encountered during, and submit its conclusions from, the examination to the CSRC.
Article 11 Before submitting the application documents, the lead distributor and the other intermediary organizations shall issue a sponsorship letter with reference to the regulations relevant to the issue of shares and on the basis of the due diligence investigation. The sponsorship letter shall contain at least a clear sponsorship opinion and the grounds therefor, an assessment of the Issuer's growth prospects, a statement as to whether the Issuer meets the conditions for issuing and listing convertible bonds and complies with other relevant regulations, an indication of the Issuer's main problems and risks, a brief description of the securities company's internal auditing procedures and the internal audit opinion reached (together with a check list of the application documents). The sponsorship letter shall be accompanied by a list of the persons involved in the forthcoming issue and their relevant experience, etc.
Article 12 In their legal opinion and legal work report issued in accordance with the relevant regulations, the Issuer's lawyers shall, in addition to satisfying the general requirements of regulations, examine, verify and issue an unambiguous opinion on such matters as the substantive conditions, issue plan, issue terms, security, creditworthiness, etc. associated with the issue and listing of the convertible bonds, in the light of the special characteristics of an issue of convertible bonds.
Article 13 If registered accountants have issued audit reports with standard clean opinions on each of the Issuer's financial and accounting reports for the most recent three years, the Issuer shall provide the audited financial and accounting reports for the most recent three years as part of its application documents. If the issue application is submitted during the second half of the year, the interim financial and accounting reports for the year of application shall also be submitted.
If registered accountants have issued audit reports without standard clean opinions on each of the financial and accounting statements for the most recent three years, the matters involved shall not have a material effect on the Issuer or the effect shall already have been eliminated, and anything unlawful, unfair or inconsistent shall have been rectified. The Issuer shall provide as part of its application documents its audited financial and accounting statements for the most recent three years and a supplementary opinion issued by a registered accountant stating whether the matters raised in the audit reports without standard clean opinions have been eliminated or rectified. If the issue application is submitted during the second half of the year, the Issuer shall also submit its audited interim financial and accounting reports for the year of application. If the issue application is submitted in the first half of the year, but the issue is expected to take place during the second half of the year, the Issuer shall, after the publication of its interim reports, supplement its application by submitting its audited interim financial and accounting reports for the year concerned.
Listed companies that have been listed for less than three years and those that have undergone a major restructuring less than one year before the forthcoming issue shall submit their financial and accounting statements in accordance with the provisions of the preceding paragraph.
Article 14 Examinations and approvals for the issue of convertible bonds shall be handled with reference to the regulations of the CSRC for the examination and approval of the issue of shares.
PART FOUR TERMS OF ISSUE
Article 15 The Issuer shall stipulate the terms and basis for the issue of the convertible bonds in its application documents.
Article 16 The scale of the convertible bond issue shall be determined by the Issuer on the basis of its investment plan and financial position.
Article 17 Convertible bonds shall be issued at par with each bond having a par value of Rmb 100. The trading unit shall be Rmb 1,000 par value.
Article 18 The minimum term for convertible bonds shall be three years whereas the maximum term shall be five years. The term shall be determined through discussions between the Issuer and the lead distributor based on the specific circumstances of the Issuer.
Article 19 The conversion price for convertible bonds shall be specified in the prospectus. The price shall be determined on the basis of the average closing price of the company's shares for the 30 trading days preceding the publication of the prospectus with a certain premium margin. The specific margin for the premium shall be determined in discussions between the Issuer and the lead distributor.
Article 20 Convertible bonds may not be converted into company shares for six months from the date of issue. The specific conversion period for the convertible bonds shall be determined by the Issuer depending on the life of the convertible bonds and the company's financial circumstances.
Article 21 The Issuer shall expressly stipulate the specific method and procedures for converting its convertible bonds.
Article 22 The coupon rate of convertible bonds and the adjustment thereof shall be determined by the Issuer on the basis of the market conditions at the time of the issue and the issue terms for the convertible bonds.
Article 23 Convertible bonds shall accrue interest from the first day of issue thereof.
Article 24 The coupon on convertible bonds shall be paid semi-annually or annually. The principal of the bonds that were not converted shall be refunded and the last coupon payment shall be made within five working days of the maturity of the bonds. The specific times for the payment of the coupon, the rules for calculating the coupon, etc. shall be specified by the Issuer.
Article 25 The coupon and dividends payable for the year in which convertible bonds are converted into shares and the method for handling conversions that are less than the amount of one share shall be specified by the Issuer.
Article 26 If an Issuer establishes call terms, put terms or terms for adjustment of the conversion price, it shall expressly stipulate the conditions, method and process, etc. for applying such terms. The aforementioned stipulations shall embody the principle of the equitability of rights and obligations and may not prejudice the interests of the holders of the convertible bonds.
Article 27 If a change occurs to the Issuer's shares due to a rights issue, issue of new shares, distribution of bonus shares, share split or other reason after the issue of the convertible bonds, the Issuer shall also adjust the conversion price and make an announcement to that effect. The principles and method for adjusting the conversion price shall be specified in advance.
Article 28 If the conversion price adjustment date is on or after the conversion application date and before the date of registration of the converted shares, the conversion application shall be handled in accordance with the adjusted conversion price.
Article 29 The Issuer may specify other terms for the issue of convertible bonds.
Article 30 The Issuer shall enter into a security contract with a security provider in accordance with the law. The issue shall be fully secured. The security may take the form of a guarantee, mortgage or pledge. If security is provided in the form of a guarantee, it shall be joint and several security. The security shall cover the principal and interest of the convertible bonds, liquidated damages, damages and the expenses for realizing the claims.
If the CSRC has provided otherwise on the exemption of security, such provisions shall prevail.
Article 31 The Issuer may engage a qualified credit rating institution to assess the credit rating of the convertible bonds to be issued or of the Issuer itself, and the results of the credit assessment may be used as a basis for determining the relevant terms of the issue and may be disclosed.
PART FIVE ISSUE AND DISTRIBUTION
Article 32 When an Issuer applies to issue convertible bonds, the shareholders' general meeting shall decide whether to make a preferential rights issue to the existing shareholders. If a preferential rights issue is decided upon, the quantity, method and relevant principles of the issue shall be specified.
Purchases of convertible bonds shall be subscribed to in cash.
Article 33 The convertible bonds unsold after the expiration of the distribution period shall be dealt with according to the method of underwriting or placement as an agent, as agreed upon in the distribution agreement.
Article 34 If the placement as an agent method of distribution was selected and less than Rmb 100 million is raised by the deadline specified in the prospectus, the Issuer shall refund the subscription amount plus interest calculated at the bank deposit rate for the same period to the subscribers of the convertible bonds within three working days after the deadline.
Article 35 If convertible bonds are to be issued by way of a public offering, the method of issue shall be determined through consultations between the Issuer and the lead distributor with reference to the relevant regulations for methods of share issues. If the CSRC has provided otherwise, such provisions shall prevail.
Article 36 Commissions, expenses and interest for the distribution of convertible bonds shall be handled with reference to the regulations relevant to the issue of shares.
PART SIX CALL, PUT AND CONVERSION
Article 37 An Issuer may exercise its call option once per year in accordance with the specified conditions. Each year, on the first occasion when the call conditions are satisfied, the Issuer may redeem all or part of the convertible bonds that have not been converted. However, if it does not exercise the call at the first opportunity, it shall not again exercise its call option during the year concerned.
Article 38 When an Issuer exercises its call option, it shall publish a minimum of three successive call announcements in the publication(s) and on the website(s) designated by the CSRC within five working days after the call conditions have been satisfied. The call announcement shall specify such details as the redemption process, price, method of payment and time. The call decision may not be revoked after the call announcement has been published. After the termination of the call period, the results of the call and its impact on the Issuer shall be announced.
Article 39 A holder of convertible bonds may exercise his put option once per year in accordance with the specified conditions. Each year, on the first occasion when the put conditions are satisfied, the holder may sell back part or all of his unconverted convertible bonds to the Issuer. If he does not put his bonds on the first occasion he shall not again exercise his put option during the year concerned.
Article 40 Each year, within five working days after the first occasion on which the put conditions have been satisfied, the Issuer shall publish a minimum of three successive put announcements in the publication(s) and on the website(s) designated by the CSRC. The put announcement shall specify such details as the redemption process, price, method of payment and time. The holders of convertible bonds who wish to exercise their put option shall submit a put declaration through the stock exchange's trading system within five working days after the expiration of the term for publication of the put announcement. Within five working days after the termination of the time limit for put declarations, the Issuer shall pay the appropriate amounts at the pre-determined price in accordance with the pre-determined payment method. After the termination of the put period, the results of the put and its impact on the Issuer shall be announced.
Article 41 A holder of convertible bonds may convert the bonds at any time during the specified conversion period in accordance with the specified conditions and become a shareholder in the Issuer on the first day after the completion of the conversion.
Article 42 When an Issuer makes a rights issue or issues new shares, its share capital shall be determined by the method set forth in relevant CSRC regulations.
PART SEVEN INFORMATION DISCLOSURE
Article 43 The Issuer shall disclose in a timely manner any information with a major impact on investors in its convertible bonds.
Article 44 All the directors of an Issuer shall undertake and warrant that the contents of the convertible bond application documents and information disclosures are truthful, authentic and complete and do not contain any falsehoods, misleading statements or major omissions, and they shall assume the corresponding legal liability therefor.
Article 45 The Issuer and intermediary organizations such as the lead distributor shall undertake to maintain the confidentiality of information until the publication of the prospectus for the convertible bond issue and may not use unpublished information to seek gain.
Article 46 Information disclosure documents relating to convertible bond issues shall include the board of directors and shareholder general meeting announcements made prior to the bond issue, the prospectus, the listing announcement and continuing information disclosure documents (including periodic reports, interim reports, etc.).
Article 47 The convertible bond prospectus and listing announcement shall be prepared and disclosed in accordance with the relevant regulations of the CSRC.
Article 48 In addition to meeting the general requirements of the CSRC concerning the form and substance of annual and interim reports, the periodic reports shall contain the following:
1. the history of conversion price adjustments, and the conversion price as most recently adjusted;
2. the aggregate of the conversions effected following the issue of the convertible bonds;
3. the names and holdings of the ten largest convertible bondholders;
4. major changes in respect of the security provider;
5. information on the liabilities of the Issuer and changes in its creditworthiness; and
6. other particulars specified by the CSRC.
Article 49 Interim reports shall meet the general requirements of the CSRC and the stock exchange concerning interim reports of listed companies and, in addition, the Issuer shall announce the following circumstances if they should occur:
1. a change in its shares resulting from the issue of new shares, the distribution of bonus shares or otherwise prompts an adjustment of the conversion price;
2. the aggregate number of convertible bonds converted into shares accounts for 10% of the company's issued shares;
3. a material change in the creditworthiness of the Issuer may affect the timely payment of the coupon and repayment of principal;
4. a material change occurs in the assets of the provider of security for the convertible bonds, or the said provider is merged or divided, etc.;
5. other circumstances specified by the CSRC.
Article 50 When, through securities trading on the stock exchange, an investor's holding of an Issuer's issued convertible bonds reaches 20% of such Issuer's total issued convertible bonds, he shall report such fact in writing to the CSRC and the stock exchange, notify the Issuer and make an announcement within three days after the fact occurs. During the above-mentioned time limit, the said investor may not effect further purchases or sales of the Issuer's convertible bonds or buy or sell shares in the Issuer.
After an investor's holding of an Issuer's issued convertible bonds has reached 20% of such Issuer's total issued convertible bonds, he shall make a written report and an announcement whenever the ratio of his holding of the Issuer's issued convertible bonds increases or decreases by 10%. During the reporting time limit and within two days after making the report and the announcement, the said investor may not effect further purchases or sales of the Issuer's convertible bonds or buy or sell shares in the Issuer.
Article 51 Written reports and announcements made pursuant to the preceding article shall at least contain the following particulars:
1. the name and domicile of the holder;
2. the description and quantity of the convertible bonds held; and
3. the date on which his holding of convertible bonds, or the increase or decrease therein, reached the specified ratio.
Article 52 If the sum of (i) the equity that an investor holding a company's convertible bonds would obtain by converting his entire holding of convertible bonds and (ii) the shares held in that company by such investor accounts for 5% of more of the sum of (i) the company's issued shares and (ii) the equity that would result from the conversion of all its convertible bonds, then the investor shall perform his information disclosure obligations in accordance with relevant CSRC regulations whenever there is a 1% increase or decrease or when the said ratio becomes 30% or more.
PART EIGHT LEGAL LIABILITY
Article 53 If an intermediary organization providing services for the issue of convertible bonds fails to perform its obligation of due diligence according to law, the CSRC will publicly criticize the intermediary organization and its main responsible personnel, and impose a time limit for rectification. During such time limit, the CSRC will suspend its acceptance of documents issued by the intermediary organization.
Article 54 If the Issuer or any of its intermediary organizations divulges relevant information prior to the publication of the issue information, the CSRC will publicly criticize it and order it to publish an explanatory announcement. If the case is serious, punishment will be imposed in accordance with relevant laws and regulations.
Article 55 If the Issuer or the distributor provides financial assistance or compensation to an institutional investor participating in a placement, the CSRC will publicly criticize it and order it to rectify the matter within a specific time limit.
Article 56 If an Issuer other than a listed finance company invests the proceeds of the issue in a financial institution such as a commercial bank or securities company, the CSRC will publicly criticize it and order it to rectify the matter within a specific time limit.
Article 57 If the Issuer has disclosed anticipated earnings and the actual amount of profit realized following the issue fails to reach the amount of earnings anticipated, and if such failure was not due to a cause that the Issuer's management could not have foreseen and that it could not control after the fact, then the Issuer's chairman of the board, the registered accountant engaged for the issue and the legal representative, business manager and project manager of the lead distributor shall give a public explanation before a shareholders' general meeting and in the designated publication(s). If the actual amount of profit realized is less than 80% of the earnings anticipated and there is no reasonable explanation therefor, the above-mentioned persons shall publish a public apology in the designated publication(s). If the actual amount of profit realized is less than 50% of the earnings anticipated, the CSRC will publicly criticize the Issuer. If the Issuer suffers a loss in the year that the convertible bonds are issued, the CSRC will not accept applications for convertible bond issues from the Issuer for two years from the date of the public criticism.
PART NINE SUPPLEMENTARY PROVISIONS
Article 58 Acts such as the listing, trading, clearing, custody and conversion into shares of, and the making of coupon payments on, convertible bonds shall be handled in accordance with the convertible bond regulations of the stock exchange and the registration and clearing company.
Article 59 These Procedures shall be implemented as of the date of issue.