引言
自2022年5月起，上市公司“携带”未到期可转债进入预重整或重整程序的案例逐步在A股视野中涌现。截至目前，重整计划成功执行并顺利处置可转债违约风险的只有*ST正邦（002157）和*ST全筑（603030）两个案例。作为一种上市公司破产重整领域的新兴产品，由于可转债具有债权性、股权性和二级市场可交易等特点，较重整中的其他普通债权更具特殊性，给上市公司破产重整提出了“新课题”，应当在重整中进行定制化处理。
可转债在上市公司破产重整中的处理方式保持了其作为金融工具“进可攻，退可守”的特点，债券持有人可以选择到期兑付、转卖或转股。因此，重整方案设计中最为核心的是保护可转债原持有人在可转债产品项下的合法权利。通常做法为保留可转债持有人一定期限的交易及转股权利，利用可转债的特殊规则为持有人做好权利保护衔接，实现上市公司与持有人的利益共赢。
本文谨从可转债的特殊性及权利保护措施、实践中主要案例总结及重整方案设计要点等三个方面展开，对存续可转债在上市公司破产重整中的处理方式进行总结和探讨。
一、可转债的特殊性及权利保护
（一）可转债的特殊性
What is a debt restructuring?
The aim of any restructuring (also sometimes called a workout) is to rearrange the debtor’s financial commitments so that it is able to service its restructured debts and survive as a going concern. It is important to note that this is a consensual process and is not undertaken under the supervision of a court or other supervisory body - therefore, it is important the all creditors are involved.
If it’s voluntary, how does it work?
Introduction
On October 20 2010 insolvency proceedings were opened against A-TEC Industries AG, the Austrian holding company of industrial group A-TEC. With outstanding debt of around €650 million (including contingent claims), this insolvency is set to be the third-largest insolvency in Austria to date. Claims included around €300 million of bond debt (two convertible bonds and a corporate bond) issued by the company.
In Short
The Situation: A draft law designed to substantially reform the Belgian Companies Code was submitted to the Belgian Parliament for review ("New Companies Code") on June 4, 2018.
The Result: The New Companies Code will lift a number of mandatory rules applicable to convertible bonds and to the general assembly of bondholders.
Petroplus, the largest independent refiner and wholesaler of petroleum products in Europe entered into various insolvency proceedings in Switzerland, England and Wales, France, Germany and Belgium on 24-27 January 2012 after the group failed to reach agreement with its creditors to extend the deadline of its loan repayments.
Cellfor, a privately held company that bills itself as the world's first and largest commercial supplier of conifer varietal seedlings to the forest industry, has obtained a court order granting it protection under the Companies' Creditors Arrangement Act.
The initial order of Mr. Justice Harris of the Supreme Court of British Columbia grants a stay of proceedings against all actions and creditors until January 16, 2012, when a further hearing is scheduled to consider a possible extension of the stay period.
On March 22, 2010, the Superior Court of Quebec approved a plan of arrangement under the Canada Business Corporations Act (the CBCA) that allowed a corporation, MEGA Brands Inc., to achieve a worldwide restructuring of its business under a corporate statute, rather than a more typical insolvency and restructuring statute like the Companies Creditors’ Arrangement Act.
Approach
I. Introduction
Cooper v Centar Investments LTD, et al. (In re Trigem America Corporation), 431 B.R. 855 (C.D. Cal. 2010)
CASE SNAPSHOT