SEC指控两位具有中国背景的公司高管从事证券欺诈

2012年02月23日 19:35
来源：凤凰网财经

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凤凰网财经讯据凤凰网股民权益交流平台张远忠律师透露，SEC声称普大煤业集团公司(以下简称普大煤业)的董事长赵明与公司前CEO朱礼平(Lipingzhu)密谋将普大煤业唯一的核心资产(revenue-producing asset)山西普大煤业集团(以下简称山西煤业)偷偷的卖掉。赵明秘密将普大煤业在山西煤业的实际控制权利益转让给了自己，然后将其余部分卖给了一家财团，该财团是中国最大的一家国有金融公司控制。这项交易使赵明而不是普大煤业的公众股东获得利益。

SEC认为，在普大煤业的定期报告中没有披露上述信息，而且为了使山西煤业获得煤矿，还继续在美国进行了两次公开募集行动。而且公众一直都不知道自从赵明的计划实施以后，普大煤业一直都没有对山西煤业也享有所有权。而且为在SEC开始调查以后，赵明和朱礼平还从中国的一家金融公司获得一份虚假的报告，试图表明赵明的交易不会造成普大煤业的损失。但事实上，赵明的交易使普大煤业成为没有任何业务的空壳。

SEC官员称，“赵与朱声称，他们募集的资金将用于投资一家中国的煤矿公司，但实际上这家公司已经被掏空。此次执法行动反映出美国坚决阻止无数的公司高管利用美国资本市场募集的资金满足自己的私欲。

普大煤业是在2005年通过一项反向收购进入美国资本市场的。普大煤业的股票于2009年9月到2011年8月在NYSE挂牌交易，而赵明与朱礼平是在2009年9月开始这项交易的。就在普大煤业还宣称获得了山西省政府关于允许其并购其他中小煤业的批文，而该项并购非常有利于普大煤业这一重大利好的数周前，赵悄悄地将普大煤业在山西煤炭中90%的股权转让给了自己。2010年7月，赵把其中的49%的股分权益转让给了中信信托，中信信托通过在中国发行信托受益凭证并将募集的资金用于支付对价。赵把自己51%的股权质押给中信信托使山西煤业获得了35亿元贷款。作为交换，中信信托给赵10.212亿美元的信托优先股。

SEC声称，该项交易没有获得普大煤业董事会与股东大会同意，而且也没有在提交给SEC的申报材料中披露。而且就在普大煤业在美国公开募集而中信信托也在中国发行信托权证的时候，赵和朱还仍然告诉美国投资者，普大煤业在山西煤业中还拥有90的股权。

SEC进一步声称，即便在SEC已经启动调查以后，赵和朱还在进行他们的欺诈计划。朱还伪造一份从中信信托取得的函件，该函件称实际上并没有贷款给山西煤业，而且自己在普大煤业与山西煤业的资产中自己没有任何利益。赵的律师讲该份文件调交给了SEC和审计人员。朱后来承认伪造文件并辞去CEO职务，赵保持董事长职务。

赵和朱的行为违反了美国1933年证券法第17条，10B-5规则等，SEC责令赵和朱交出非法所得和利息损失，再进行罚金。禁止他们担任公众公司高官，同时再不允许违反上述法令。SEC纽约地区分支机构对赵和朱德调查正在进行中。

(以上内容系本网根据美国证监会文件翻译，如需引用请注明“来自《张远忠金融网》”)

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.