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

中国证券监督管理委员会令第2号
(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 pre

judice 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 re

gulations, 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

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