上市公司新股发行管理办法
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中国证券监督管理委员会令第1号 PART ONE GENERAL PROVISIONS Article 1 These Procedures have been formulated pursuant to the Company Law, the Securities Law and other related laws and administrative regulations, in order to regulate the offering of new shares by listed companies, protect the lawful rights and interests of investors and safeguard the public interest. Article 2 These Procedures shall apply to the offering of new shares to the public by listed companies. For the purposes of these Procedures, the term "offerings of new shares to the public by listed companies" means a rights issue of shares to the original shareholders (Rights Issue) and the offering of shares to the general public (Additional Offering). Article 3 When a listed company issues new shares as mentioned in the preceding article, it shall do so by means of cash subscription. Shares of the same class shall be offered at the same price. Article 4 With the exception of listed financial companies, listed companies may not invest the proceeds obtained from the offering of new shares in financial institutions such as commercial banks, securities companies, etc. Article 5 When listed companies apply to offer new shares, securities companies with lead distributor qualifications shall act as issue sponsors and lead distributors. Article 6 The China Securities Regulatory Commission (CSRC) shall carry out the supervision and administration of the offering of new shares by listed companies in accordance with the law. Article 7 The specific procedures for the administration of applications by listed companies to offer new shares by other methods shall be formulated separately. PART TWO CONDITIONS FOR AND POINTS TO BE NOTED IN THE OFFERING OF NEW SHARES Article 8 When a listed company applies to offer new shares, it shall comply with the conditions stipulated in the Company Law and the Securities Law. Article 9 When a listed company applies to offer new shares, it shall also comply with the following specific requirements: 1. it has a sound legal person governance structure, its personnel, assets and financial affairs are separate from those of the legal person(s) or other organization(s) with actual control over it and those of other affiliated enterprises and it ensures the independence of its personnel and financial affairs and the integrity of its assets; 2. the company's articles of association comply with the Company Law and the Listed Companies' Articles of Association Guidelines; 3. the notification for, the method of convening, the voting method at, and the substance of the resolutions of, the shareholders' general meeting comply with the Company Law and relevant provisions; 4. the purpose of the proceeds from the intended offering of new shares complies with State industrial policy; 5. the proceeds from the intended offering of new shares will not in principle exceed the amount of funds required for the proposed investment project approved by the shareholders' general meeting; 6. none of the company's funds or assets are held by an individual, legal person or other organization with actual control over it or persons associated therewith and there are no major inter-affiliate transactions which prejudice the company's interests; 7. any major purchase or sale of assets by the company is in compliance with the relevant provisions of the CSRC; and 8. other requirements stipulated by the CSRC. Article 10 The CSRC shall not approve a listed company's offer application in the following circumstances: 1. the company has committed a serious violation of laws or regulations during the most recent three years; 2. the company has changed, without authorization, the purpose of the proceeds stated in the prospectus and failed to rectify the same, or failed to submit the change to the shareholders' general meeting for approval; 3. the company's accounting and/or financial documents for the most recent three years contain(s) false entries or misleading statements or there are material omissions therein; the financial and/or accounting documentation on the relevant assets which were injected into the company during restructuring or the post-restructuring financial and/or accounting documentation contain(s) false entries or misleading statements or there are material omissions therein; 4. the offer documents contain false entries or misleading statements or there are material omissions therein; 5. the company has provided security for the debts of a shareholder, a shareholder's company or an individual; or 6. another circumstance recognized by the CSRC occurs. Article 11 The securities company acting as lead distributor shall pay particular attention to the matters set forth below and provide an explanation of the same in the due diligence report: 1. inter-affiliate transactions that have a material impact on the operational capabilities and revenue of the company; 2. in comparison with other companies in the same industry, there are aberrations in such of the company's important financial indicators as its accounts receivable turnover rate and inventory turnover rate which may constitute a material risk; 3. the net increase in the company's cash flow and the net cash flow generated from business activities are negative and may give rise to payment difficulties; 4. the company has previously experienced a discrepancy between the pace of applying the proceeds from an offering and the undertaking it made in the original offer documents, the company has repeatedly changed the investment orientation of the proceeds or the effectiveness of its use of the proceeds did not attain the level disclosed by the company; 5. the company's financing plan for the intended offering, the funding requirements for the project in which the proceeds from the offering are to be invested and the application cycle therefor are at mutual variance and the investment project lacks an adequate rational; 6. after the completion of the previous offering, the listed company's performance declined markedly or its profit realization failed to reach 80% of the profit forecast; 7. the company did not distribute any dividends or bonuses during the most recent three years and the board of directors failed to provide a reasonable explanation of the same; 8. the company lacks sound accounting policies; 9. a large amount of the company's funds are idle, there are no secure and effective controls over the deposit and release of funds or the company entrusts a third party to manage a large amount of its funds; 10. the company's debt-asset ratio is unduly low and equity financing would cause the company's financial structure to become even more untenable or the company lacks a clear investment strategy which could lead to a surplus of funds; 11. the company's contingent debts are very large and pose a relatively high risk; 12. the company has a pending major arbitration or court case; 13. there are relatively large flaws in the company's internal control systems; 14. the company may not have the capacity for sustainable growth or there are major uncertainties in its operations; 15. the company has been publicly criticized by the CSRC or censured by the stock exchange during the past year for violation of information disclosure regulations or failure to perform reporting obligations; 16. the company's board of directors has failed to perform its undertakings to all the shareholders; or 17. the company has failed to complete rectification within the time limit set in a notice to that effect issued by the CSRC or an office thereof. PART THREE OFFER PROCEDURE AND PARTICULARS TO BE EXAMINED Article 12 The board of directors of a listed company shall decide on the engagement of the lead distributor. After the lead distributor has completed the due diligence investigation it shall reach a consensus with the board of directors on the proposal for the offering of new shares and agree to recommend the listed company's offering of new shares to the CSRC. Article 13 When a listed company applies to offer new shares it shall lawfully adopt resolutions on the matters set forth below in accordance with the requirements hereof: 1. the board of directors shall pass resolutions on whether the intended offering complies herewith, the specific offer proposal, the feasibility of the use of the proceeds and the use of the proceeds from the preceding offering and submit the same to the shareholders' general meeting for its approval; and 2. the shareholders' general meeting shall conduct an item by item vote on such matters as the number of shares to be issued, the pricing method or price (including the price range) and the targeted subscribers for, the purpose and amount of the proceeds from, the effective term of the resolutions concerning, and the authorization of the board of directors to handle the specific matters connected with, the intended offering, etc. Article 14 If one of the major events stipulated in Article 62 of the Securities Law or one of the points for attention stipulated in Article 11 hereof occurs between the submission of the offer application and the offering of the new shares, the listed company shall notify the lead distributor in a timely manner, report the aforementioned circumstance to the CSRC and the stock exchange within two working days, and also amend the offer application documents. If the amendment requires the approval of the shareholders' general meeting, the board of directors shall convene a meeting of the same in a timely manner. Article 15 When a listed company applies to offer new shares, it shall prepare and submit the offer application documents in accordance with the provisions of the CSRC. Article 16 If a registered accountant has issued an audit report with a standard clean opinion on the listed company's financial and accounting reports for the most recent three years, the company shall submit such audited financial and accounting reports as part of its application documents. If the offer application is submitted in the second half of the year, the interim financial and accounting reports published by the company during the application year shall also be submitted. If the registered accountant issues an audit report with an opinion on the financial and accounting reports for the most recent three years that is not a standard clean opinion, the matters raised therein must not materially affect the company or the effect thereof must already have been eliminated and any breach of lawfulness, fairness or consistency must have been rectified. In such event, the company shall submit, as part of its application documents, its audited financial and accounting reports for the most recent three years and the supplementary opinion issued by the registered accountant at the time the company makes its application on whether the matters raised in his audit report with an opinion that is not a standard clean opinion have been eliminated or rectified. If the offer application is submitted in the second half of the year, audited interim financial and accounting reports for the application year shall also be submitted. If the offer application is submitted in the first half of the year but the offering is anticipated for the second half of the year, the audited interim financial and accounting reports for the application year shall be submitted after the publication of the said interim reports. If a listed company has been listed for less than three years or if it underwent a major restructuring less than one fiscal year before the intended offering, it shall submit its financial and accounting reports in accordance with the second paragraph of this article. Article 17 The Listing Review Committee (the Listing Committee) shall examine listed companies' applications to offer new shares in accordance with the law, and the CSRC shall render its decision on whether to approve such applications on the basis of the opinions upon examination of the Listing Committee. Article 18 Once its offer application has been approved by the CSRC, a listed company shall consult with the stock market to determine such specific matters as the issue date and listing of the new shares, the registration of the shares, etc. Article 19 The specific operational procedures for Additional Offerings by listed companies shall be carried out in accordance with the relevant regulations of the CSRC. Before the offer price is set, a listed company may issue to investors a letter of intent to offer shares, which shall state that: "The entire contents of this letter of intent to offer shares shall constitute an irrevocable and integral part of the prospectus and shall have the same legal validity and effect as the prospectus". After the lead distributor and the listed company have set the offer price in accordance with investors' subscription intent, they shall prepare the prospectus and submit the same to the CSRC for the record. Article 20 A listed company whose offer application has not been approved may not submit another application to offer new shares for six months from the date on which the CSRC rendered its decision not to approve the application. Article 21 Among the application documents, the listed company and the lead distributor shall issue an undertaking to guarantee that they will keep the Additional Offering confidential before news of the same is made public and will not provide any financial assistance or compensation to organizations participating in the rights issue portion of the forthcoming Additional Offering. PART FOUR INFORMATION DISCLOSURE Article 22 After a listed company makes a decision to offer new shares, it shall disclose the relevant information in accordance with the following requirements: 1. Within two working days after the proposal for the forthcoming offering has been voted on and adopted by the board of directors, the same shall be reported to the stock exchange and a notice convening a meeting of the shareholders' general meeting shall be published: The notice convening the meeting of the shareholders' general meeting shall include the resolution of the board of directors, the specific offer proposal to be voted on by the shareholders' general meeting, the explanation of the board of directors on the use of the proceeds from the previous offering and the special report of the registered accountant on the use of the proceeds from the previous offering. The notice shall also include the words "After an affirmative vote by the shareholders' general meeting, the said resolution must be submitted to the China Securities Regulatory Commission for its approval." 2. The board of directors shall, by means of an announcement, notify the shareholders concerning the matters set forth below at least five working days before the date of convening the shareholders' general meeting: (i) if the proceeds are to be used to acquire assets (including equity), the board of directors shall publish the appraisal report on the assets to be acquired; (ii) if after the completion of the acquisition the listed company will have actual control over the enterprise being acquired or will require consolidation of its statements with those of the acquired enterprise, the board of directors shall publish the audited financial and accounting reports of the enterprise to be acquired for the most recent fiscal year and the most recent period and shall undertake that the aforementioned acquisition will not cause the company to become less independent. The company's board of directors shall guarantee in the announcement that inter-affiliate transactions related to the forthcoming offering are in the company's best interest and will not prejudice the interests of unaffiliated shareholders or generate competition from entities in the same industry. 3. The Company shall publish the resolution of the shareholders' general meeting within two working days after the said meeting approves the proposal for the forthcoming offering. The announcement shall include the words "The proposal must still be submitted to the China Securities Regulatory Commission for its approval". If the shareholders' general meeting amends the board of directors' offer proposal, the amendments shall also be published. Article 23 Within two working days after receipt of a notice of the approval of its offering from the CSRC, a listed company shall issue an announcement stating that it has received such approval. A listed company whose offer application has not been approved shall issue, within two working days of the date of receipt of the notice from the CSRC, an announcement stating that its offering of new shares was not approved. Article 24 After receipt of the approval to offer new shares from the CSRC, a listed company may publish its Rights Issue prospectus or a letter of intent to offer shares. A listed company that receives approval for a Rights Issue shall publish the prospectus therefor at least five working days before the date for the registration of equity. Between the publication of the prospectus and the payment deadline, the listed company shall issue at least one reminder concerning the prospectus. The reminder shall indicate the place(s) where the prospectus is available and the internet address designated by the CSRC. A listed company that receives approval for an Additional Offering shall, after the offer price has been set, announce the offer results. This announcement shall indicate the place(s) where the prospectus is available for review by investors and the internet address designated by the CSRC. Article 25 The contents of the Rights Issue prospectus or letter of intent to offer shares published by a listed company shall be consistent with the version submitted to the CSRC for its approval. If there truly is a need to amend the prospectus or letter of intent, the consent of the CSRC shall be obtained before the same is published. Article 26 If a listed company making an Additional Offering discloses its profit outlook, it shall make a careful profit forecast and have the same reviewed by a registered accountant with securities qualifications. If there are indeterminate factors influencing the profit forecast, an analysis and explanation of the indeterminate factors shall be provided. If a listed company making an Additional Offering does not make a profit forecast, it shall print a special risk warning in a prominent place in the letter of intent to offer shares, the offer announcement and the prospectus. Article 27 In its annual reports for the three years following the offering of new shares, a listed company shall continue disclosure on the profitability of the project in which the proceeds from the current offering have been invested. PART FIVE LEGAL LIABILITY Article 28 If an intermediary organization that provides services to a listed company offering new shares fails to perform its due diligence obligations, the CSRC shall criticize it publicly and order rectification within a specified period of time. During the period of rectification, the CSRC shall defer the acceptance of the documents issued by the said intermediary organization. Article 29 If a securities company fails to establish internal controls in accordance with the Internal Controls of Securities Companies Guidelines and is ordered by the CSRC to rectify the matter within a specific period of time, during the said period of rectification, the CSRC shall defer the acceptance of its recommendation opinions for listed companies offering new shares. Article 30 If a listed company or its lead distributor discloses news of an offering before such news is made public, the CSRC shall criticize it publicly and order the listed company to publish a clarification announcement. Article 31 If a listed company or its lead distributor provides financial assistance or compensation to institutional investors participating in the rights issue portion of an Additional Offering, the CSRC shall criticize it publicly and order it to promptly rectify the matter. Article 32 If after the completion of an Additional Offering the realized profits of a listed company fail to match its profit forecast for a reason other than one that was unforeseeable by management before the offering and beyond the control of management after the offering, the listed company's chairman of the board, the registered accountant engaged by the company and the legal representative, business supervisor and project supervisor of the securities company that acted as lead distributor shall give a public explanation at a meeting of the shareholders' general meeting and in the designated newspaper(s). If the realized profits fail to reach 80% of the profit forecast and no reasonable explanation is forthcoming, the aforementioned persons shall issue a public apology in the designated newspaper(s). If the realized profits fail to reach 50% of the profit forecast, the CSRC shall publicly criticize the relevant listed company and shall not accept applications from the said company for offerings of new shares for a period of two years from the date on which it issued the public criticism. Article 33 If during the year after the completion of its Rights Issue, a listed company's weighted average net return on assets fails to match the bank deposit interest rate for the same period, the listed company's chairman of the board and the legal representative, business supervisor and project supervisor of the securities company that acted as lead distributor shall give a public explanation at a meeting of the shareholders' general meeting and in the designated newspaper(s). If no reasonable explanation is forthcoming, the aforementioned persons shall issue a public apology in the designated newspaper(s) and the CSRC shall publicly criticize the listed company. If a listed company posts a loss for the year of its Rights Issue, the CSRC shall publicly criticize the said company and shall not accept applications therefrom for offerings of new shares for a period of two years from the date on which it issued the public criticism. Article 34 If a non-financial listed company invests the proceeds from its offering in a financial institution such as a commercial bank, securities company, etc., the CSRC shall criticize it publicly and order it to promptly rectify the matter. PART SIX SUPPLEMENTARY PROVISIONS Article 35 When companies with domestically listed foreign investment shares (B shares) offer B shares, they shall in principle handle matters in accordance with these Procedures. Article 36 These Procedures shall enter into effect on the date of promulgation. The Relevant Questions Concerning Rights Issues by Listed Companies Circular (Zheng Jian Fa [1999] No. 12), the Relevant Questions Concerning Rights Issues by Listed Companies Supplementary Circular (Zheng Jian Gong Si Zi [2000] No. 21), the Public Share Offerings by Listed Companies Tentative Procedures (Zheng Jian Gong Si Zi [2000] No. 42) and the Issue of B-shares for Capital Increase by Foreign Investment Share (B-share) Companies Listed Inside China Tentative Procedures (Zheng Wei Fa [1999] No. 17) are simultaneously repealed. |
