China: 科创板拟IPO企业股权激励审核规则的创新与实践

Last Updated: 10 September 2019
Article by Tang Yongsheng
Most Read Contributor in China, November 2019

一、主板(中小板)、创业板拟IPO企业股权激励的困境

(一)股权清晰

根据《首次公开发行股票并上市管理办法》《首次公开发行股票并在创业板上市管理办法》的规定,发行人应符合"发行人的股权清晰,控股股东和受控股股东、实际控制人支配的股东所持发行人的股份不存在重大权属纠纷"的发行条件。

拟IPO企业如存在未实施完毕的期权激励计划,激励对象最终是否符合行权条件、是否选择行权并取得股份具有不确定性,由此拟IPO企业的股权结构处于一种可能发生变动的不稳定状态,拟IPO企业可能被证监会认为股权不清晰、不稳定,不符合发行上市的条件。

因而,拟申请在主板(中小板)、创业板上市的企业,如存在未实施完毕的期权激励计划,通常需在申报上市前选择加速行权或者终止期权激励计划。如果让员工提前行权、取得股份,员工在短期内存在较大的资金压力,同时拟IPO企业需考虑股份支付对企业经营业绩的影响;如拟IPO企业选择终止期权计划,则需另行设计股权激励措施,以履行其对激励对象的激励承诺。无论采取何种方式,都使得原来的股权激励效果大打折扣。

倒是新三板对此有所突破,《全国中小企业股份转让系统业务规则(试行)》第2.6条规定,"申请挂牌公司在其股票挂牌前实施限制性股票或股票期权等股权激励计划且尚未行权完毕的,应当在公开转让说明书中披露股权激励计划等情况。"如仁会生物(830931)于2014年1月完成整体变更、2014年2月股东大会审议通过股权激励计划方案、2014年8月正式挂牌交易。在《公开转让说明书》中,仁会生物详细阐述了股权激励计划。

(二)股东200人人数限制

根据《证券法》第10条的规定,公开发行证券,必须符合法律、行政法规规定的条件,并依法报经国务院证券监督管理机构或者国务院授权的部门核准;未经依法核准,任何单位和个人不得公开发行证券。向特定对象发行证券累计超过二百人的,为公开发行。

在上述法规背景下,申请在主板(中小板)、创业板上市的企业,如直接及间接持股股东穿透计算后人数超过200人,需在上市前对股东进行规范清理,或按照《非上市公众公司监管指引第4号——股东人数超过200人的未上市股份有限公司申请行政许可有关问题的审核指引》的要求进行规范和行政许可。

股东人数的限制使得拟IPO企业股权激励范围受到了限制。特别是对于高新技术企业而言,人才是企业发展的关键要素,实施股权激励以稳定人才是必不可少的措施。但在主板(中小板)、创业板的上市审核监管模式下,拟IPO企业的股权激励措施受到了一定限制,不利于高新技术企业激励人才、稳定人才。

二、科创板拟IPO企业股权激励的审核规则及创新

2018年6月6日,证监会公布并施行证监会公告[2018]17号《关于试点创新企业实施员工持股计划和期权激励的指引》(以下简称"《17号文》")。《17号文》明确规定支持纳入试点的创新企业实施员工持股计划和期权激励,但对于试点企业的条件和范围,尚未作出明确规定。

2019年3月3日,上交所发布《上海证券交易所科创板股票发行上市审核问答》(以下简称"《上市审核问答(一)》")。《上市审核问答(一)》对拟IPO企业的员工持股计划及上市前制定、上市后实施的期权激励计划的实施条件、信息披露规则、中介机构核查要求等作出了明确规定。

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