SEC指控兩位具有中國背景的公司高管從事證券欺詐

2012年02月23日 19:35
來源：鳳凰網財經

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鳳凰網財經訊據鳳凰網股民權益交流平臺張遠忠律師透露，SEC聲稱普大煤業集團公司(以下簡稱普大煤業)的董事長趙明與公司前CEO朱禮平(Lipingzhu)密謀將普大煤業唯一的核心資產(revenue-producing asset)山西普大煤業集團(以下簡稱山西煤業)偷偷的賣掉。趙明秘密將普大煤業在山西煤業的實際控制權利益轉讓給了自己，然后將其余部分賣給了一家財團，該財團是中國最大的一家國有金融公司控制。這項交易使趙明而不是普大煤業的公眾股東獲得利益。

SEC認為，在普大煤業的定期報告中沒有披露上述信息，而且為了使山西煤業獲得煤礦，還繼續在美國進行了兩次公開募集行動。而且公眾一直都不知道自從趙明的計劃實施以后，普大煤業一直都沒有對山西煤業也享有所有權。而且為在SEC開始調查以后，趙明和朱禮平還從中國的一家金融公司獲得一份虛假的報告，試圖表明趙明的交易不會造成普大煤業的損失。但事實上，趙明的交易使普大煤業成為沒有任何業務的空殼。

SEC官員稱，“趙與朱聲稱，他們募集的資金將用于投資一家中國的煤礦公司，但實際上這家公司已經被掏空。此次執法行動反映出美國堅決阻止無數的公司高管利用美國資本市場募集的資金滿足自己的私欲。

普大煤業是在2005年通過一項反向收購進入美國資本市場的。普大煤業的股票于2009年9月到2011年8月在NYSE掛牌交易，而趙明與朱禮平是在2009年9月開始這項交易的。就在普大煤業還宣稱獲得了山西省政府關于允許其并購其他中小煤業的批文，而該項并購非常有利于普大煤業這一重大利好的數周前，趙悄悄地將普大煤業在山西煤炭中90%的股權轉讓給了自己。2010年7月，趙把其中的49%的股分權益轉讓給了中信信托，中信信托通過在中國發行信托受益憑證并將募集的資金用于支付對價。趙把自己51%的股權質押給中信信托使山西煤業獲得了35億元貸款。作為交換，中信信托給趙10.212億美元的信托優先股。

SEC聲稱，該項交易沒有獲得普大煤業董事會與股東大會同意，而且也沒有在提交給SEC的申報材料中披露。而且就在普大煤業在美國公開募集而中信信托也在中國發行信托權證的時候，趙和朱還仍然告訴美國投資者，普大煤業在山西煤業中還擁有90的股權。

SEC進一步聲稱，即便在SEC已經啟動調查以后，趙和朱還在進行他們的欺詐計劃。朱還偽造一份從中信信托取得的函件，該函件稱實際上并沒有貸款給山西煤業，而且自己在普大煤業與山西煤業的資產中自己沒有任何利益。趙的律師講該份文件調交給了SEC和審計人員。朱后來承認偽造文件并辭去CEO職務，趙保持董事長職務。

趙和朱的行為違反了美國1933年證券法第17條，10B-5規則等，SEC責令趙和朱交出非法所得和利息損失，再進行罰金。禁止他們擔任公眾公司高官，同時再不允許違反上述法令。SEC紐約地區分支機構對趙和朱德調查正在進行中。

(以上內容系本網根據美國證監會文件翻譯，如需引用請注明“來自《張遠忠金融網》”)

附：SEC指控原文

The SEC alleges that Puda Coal Inc.’s chairman Ming Zhao schemed with former CEO Liping Zhu to steal and sell Puda Coal’s sole revenue-producing asset, a coal mining company named Shanxi Puda Coal Group. Zhao secretly transferred Puda Coal’s controlling interest in Shanxi Coal to himself and then sold a substantial portion to a fund controlled by what is reported to be China’s largest state-owned financial firm. The scheme enabled Zhao rather than Puda Coal’s public shareholders to profit from a lucrative business opportunity.

The SEC alleges that Zhao and Zhu failed to disclose these transactions in Puda Coal’s periodic reports to the SEC, and continued to raise funds from U.SE investors by conducting two public offerings to purportedly raise capital to enable Shanxi Coal to acquire coal mines. Unbeknownst to investors, Puda Coal no longer had an ownership stake in that company after Zhao’s secret maneuvers. After the SEC began investigating, Zhao and Zhu further schemed to forge a letter from the Chinese financial firm purporting that Puda Coal investors weren’t harmed by the asset transfers. In reality, the scheme left Puda Coal as a shell company with no ongoing business operations.

“Zhao and Zhu duped investors with promises that their money would be invested in a Chinese coal company when in fact the company was an empty shell that had been looted by the defendants,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. aThis enforcement action reflects our continuing commitment to hold accountable officers and directors of issuers who misuse their access to the U.SE capital markets to commit fraud for personal gain.

George S. Canellos, Director of the SEC’s New York Regional Office, added, SThe massive fraud perpetrated by Zhao and Zhu wiped out hundreds of millions of dollars in shareholder value and was compounded by their brazen obstruction of the SEC’s investigation.

According to the SEC’s complaint filed in U.SE District Court for the Southern District of New York, Puda Coal entered the U.SE capital markets through a reverse merger in July 2005. Puda Coal’s common stock was listed and traded on the NYSE from September 2009 to August 2011.

The SEC alleges that Zhao embarked on the scheme with Zhu in September 2009 to enrich himself at the expense of Puda Coal’s public shareholders. Just weeks before Puda Coal announced that Shanxi Coal had received a highly lucrative mandate from the provincial government authorities to become a consolidator of smaller coal mining companies, Zhao quietly transferred Puda Coal’s 90 percent stake in Shanxi Coal to himself. In July 2010, Zhao transferred a 49 percent equity interest in Shanxi Coal to CITIC Trust Co Ltd., a Chinese private equity fund controlled by state-owned investment firm CITIC Group. CITIC Trust placed its 49 percent stake in Shanxi Coal in a trust and then sold interests in the trust to Chinese investors. Zhao caused Shanxi Coal to pledge 51 percent of its assets to CITIC Trust as collateral for a loan of RMB 3.5 billion ($516 million in U.SE dollars) from the trust to Shanxi Coal. In exchange, CITIC Trust gave Zhao 1.212 billion preferred shares in the trust.

According to the SEC’s complaint, the transactions were not approved by Puda Coal’s board or shareholders and not disclosed in Puda Coal’s SEC filings, which Zhao and Zhu signed knowing that they were materially false and misleading. During the two Puda Coal public offerings in 2010, CITIC Trust was separately selling interests in Shanxi Coal to Chinese investors while Zhao and Zhu were still telling U.SE investors that Puda Coal owned a 90 percent stake in that company.

The SEC further alleges that Zhao and Zhu continued their fraudulent scheme to deceive public investors even after the SEC began its investigation. Zhu forged a letter purportedly from CITIC Trust falsely stating that no funds had actually been loaned to Shanxi Coal and disclaiming any interest in Puda Coal’s or Shanxi Coal’s assets. Zhao’s counsel provided the forged letter to the SEC’s investigative staff and Puda’s audit committee. After Puda Coal disclosed the letter in an SEC filing and further misled shareholders about the ownership of Puda Coal’s assets, Zhu admitted forging the letter and resigned as CEO. Zhao remains the chairman.

Zhao and Zhu are charged with violations of Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, as well as violating the proxy solicitation rules and various corporate reporting, recordkeeping and internal controls provisions of the Exchange Act. The SEC’s complaint seeks a final judgment ordering Zhao and Zhu to disgorge their ill-gotten gains plus prejudgment interest, imposing financial penalties, barring them from acting as officers or directors of a public company, and permanently enjoining them from committing future violations of these provisions.

The SEC’s investigation, which is continuing, has been conducted by Sheldon Pollock, Scott York and George Stepaniuk of the SEC’s New York Regional Office with investigative support from Neil Hendelman and Desiree Marmita. The SEC’s Cross Border Working Group, which has representatives from each of the SEC’s major divisions and offices and focuses on U.SE companies with substantial foreign operations, has assisted the New York Regional Office enforcement staff in the investigation.