香港聯交所遏止借殼上市新規10月生效

A. Rule amendments relating to backdoor listing

1. Modifying the definition of “reverse takeover” (RTO)

(a) Principle based test

RTO is defined under the Listing Rules as an acquisition (or series of acquisitions) which constitute, in the opinion of the Exchange, an attempt to achieve a listing of the assets to be acquired and a means to circumvent the requirements for new applicants.  This is a “principle based test”.

In May 2014, the Exchange published Guidance Letter GL78-14 which provides guidance on its application of the RTO rules.  In particular, it sets out the following six assessment criteria that the Exchange would take into account in considering whether the “principle based test” applies:

• transaction size
• quality of the business to be acquired
• nature and scale of the issuer’s business
• any fundamental change in the issuer’s principal business
• issue of restricted convertible securities
• series of transactions and/or arrangements to circumvent the RTO rules

To codify the six assessment factors under the principle based test in Guidance Letter GL78-14, with the following modifications made to the last two factors:

Change in control or de facto control

To extend the current factor “issue of restricted convertible securities” in the principle based test to include any change in control or de facto control of issuers.

In assessing whether there has been a change in control or de facto control of the issuer, the Exchange will consider (i) any change in the controlling shareholder of the issuer; or (ii) any change in the single largest substantial shareholder who is able to exercise effective control over the issuer, as indicated by factors such as a substantial change to its board of directors and/or senior management.

Series of transactions and/or arrangements

The amended rule provides that these transactions or arrangements may include changes in control/de facto control, acquisitions and/or disposals that take place in a reasonable proximity to each other (which normally refers to a period of 36 months or less) or are otherwise related.

(b) Bright line tests

The current Listing Rules set out two specific forms of RTOs:

(a)   an acquisition or a series of acquisitions of assets constituting a very substantial acquisition where there is or which will result in a change in control (as defined in the Takeovers Code); or

(b)   very substantial acquisition(s) of assets (individually or in aggregate) from the new controlling shareholder and its associates within 24 months following a change in control (as defined in the Takeovers Code).

To extend the aggregation period from 24 months to 36 months.

(c) Disposal restriction  

To complement the bright line tests, the Listing Rules restrict an issuer from disposing of its existing business within 24 months after a change in control, unless the asset injection(s) from the new controlling shareholder and his associates and any assets acquired during the period leading to and after the change in control would meet the requirements for a new listing application.

To modify the bright line tests to restrict disposals (or distributions in specie) of all or a material part of the issuer’s business proposed at the time of or within 36 months after a change in control of the issuer, unless the remaining group, or the assets acquired from the person or group of persons gaining such control or his/their associates and any other assets acquired by the listed issuer after such change in control, can meet the track record requirements. 

The Exchange may also apply the restriction to disposals (or distributions in specie) at the time of or within 36 months after a change in de facto control (as set out in the principle based test) of the issuer.

(d) Backdoor listings through large scale issue of securities

In December 2015, the Exchange issued Guidance Letter GL84-15 explaining the circumstances under which the Exchange would apply the cash company rules to disallow large scale issues of securities where the funds raised would be used to start a greenfield operation which, in the opinion of the Exchange, is a means to circumvent the new listing requirements and to achieve a listing of that greenfield operation.

To codify Guidance Letter GL84-15 to disallow backdoor listing through large scale issue of securities for cash, where there is, or will result in, a change in control or de facto control of the issuer, and the proceeds will be applied to acquire and/or develop new business that is expected to be substantially larger than the issuer’s existing principal business.

2. Codifying the “extreme very substantial acquisition” requirements with modifications

Guidance Letter GL78-14 provides that a transaction which falls outside the bright line tests but which is considered to be “extreme” by the Exchange with reference to six assessment criteria mentioned in section A1(a) above would be treated as an “extreme very substantial acquisition” (but not a RTO) where the issuer can demonstrate that the target business meets the eligibility and suitability for new listing requirements and that circumvention of the new listing requirements would not be a material concern.

To codify the “extreme very substantial acquisition” requirements in Guidance Letter GL78-14 and rename this category of transactions as “extreme transactions”.

To impose additional eligibility criteria on the issuer that may use this transaction category: (a) the issuer must operate a principal business of substantial size

3. Imposing additional requirements applicable to RTOs and “extreme transactions”

Under the current Listing Rules, the Exchange will treat a listed issuer proposing a RTO as if it were a new listing applicant.

The enlarged group or the acquisition targets must be able to meet the track record requirements and the enlarged group must be able to meet all the other basic listing conditions.  This requirement also applies to extreme very substantial acquisitions currently.

To require the acquisition targets in a RTO or extreme transaction to meet the requirements of Rule 8.04 (i.e. suitability for listing) and Rule 8.05 (or Rule 8.05A or 8.05B) (i.e. track record requirements), and the enlarged group to meet all the new listing requirements in Chapter 8 of the Listing Rules except Rule 8.05. 

Where the RTO is proposed by an issuer that fails to meet the requirements under Rule 13.24 (which requires an issuer to have sufficient operations and assets of sufficient value to warrant its continued listing), the acquisition targets must also meet the requirement of Rule 8.07 (i.e. requirement to have sufficient public interest).

The current Listing Rules require an issuer proposing a RTO to comply with the procedures and requirements for new listing applications, including documentary requirements such as accountants’ reports and pro forma financial information. For RTO involving a series of acquisitions, some of which may have taken place over a few years, the current Listing Rules do not provide guidance on how the track record of the acquisitions would be determined and the financial information to be presented.

To clarify that, for extreme transactions and RTOs that involve a series of transactions and/or arrangements, the track record period for the completed acquisition(s) and the latest proposed transaction in the series would be referenced to the latest proposed transaction and covers the three financial years immediately prior to the issue of the circular for that transaction.

To require issuers to submit financial information of the acquisition targets based on accountants’ reports or audited financial information to the Exchange to demonstrate compliance with Rule 8.05.

B. Rule amendments relating to continuing listing criteria

1. Sufficiency of operations

The current Listing Rules requires that an issuer must carry out a sufficient level of operations or have tangible assets of sufficient value and/or intangible assets for which a sufficient potential value can be demonstrated to the Exchange to warrant the continued listing of the issuer’s securities. 

To require an issuer to carry out a business with a sufficient level of operations and to have assets of sufficient value to support its operations to warrant its continued listing.

Proprietary securities trading and/or investment activities by an issuer’s group (other than a Chapter 21 company) are normally excluded when considering whether the issuer can meet this requirement (except for those carried out by a member of the issuer’s group that is a banking company, an insurance company, or a securities house that is mainly engaged in regulated activities under the Securities and Futures Ordinance (SFO)).              

2. Cash companies

Under the current Listing Rules, where for any reason the assets of a listed issuer consist wholly or substantially of cash or short-dated securities, it will not be regarded as suitable for listing.  Short-dated securities mean securities such as bonds, bills or notes that have less than one year to maturity. 

The cash company rules do not apply to a Chapter 21 company or an issuer solely or mainly engaged in the securities brokerage business.

To extend the definition of “short-dated securities” to cover investments that are easily convertible into cash and rename it as “short-term investments”.

To confine the exemption to cash and short-term investments held by members of an issuer’s group that are banking companies, insurance companies or securities houses, but this exemption will not apply to an issuer that operates a securities house where the Exchange has concerns that the issuer is holding cash and short-term investments through the member to circumvent the cash company rules.

A transitional period of 12 months from the effective date of the Listing Rule amendments (i.e. 1 October 2019) will apply to listed issuers that do not comply with the amended Listing Rules relating to sufficiency of operations or cash companies strictly as a result of the Listing Rule amendments.

C. Other Rule amendments

1. Securities transactions

Transactions that are of a revenue nature in the issuer’s ordinary and usual course of business are fully exempt from the notifiable transaction requirements under the current Listing Rules (revenue exemption). 

In recent years, some issuers have reported securities trading / investment as one of their principal business activities and claimed revenue exemption for their securities trading activities.

To confine the revenue exemption from the notifiable transaction requirements for purchases and sales of securities to cases where they are conducted by banking companies, insurance companies and securities houses that are mainly engaged in regulated activities under the SFO.

The current Listing Rules require issuers to disclose in annual reports significant investments held, their performance during the financial year, and future prospects.

To add a specific requirement for issuers to disclose in their annual reports details of each securities investment that represents 5% or more of their total assets.  The 5% threshold is calculated based on the value of the issuer’s investments in each investee company as at the year-end date.

2. Significant distribution in specie of unlisted assets

As set out in Listing Decision LD75-4, the Exchange requires issuers who intend to conduct significant distributions in specie of unlisted assets (which amounts to a very substantial disposal) to obtain prior approval of the distribution from independent shareholders in a general meeting. The approval should be given by at least 75% of the votes attaching to any class of listed securities held by holders voting either in person or by proxy at the meeting, and the number of votes cast against the resolution must not be more than 10% of the votes attaching to any class of listed securities held by holders permitted to vote in person or by proxy at the meeting. Further, the issuers’ shareholders (other than the directors (excluding independent non-executive directors), chief executive and controlling shareholders) should be offered a reasonable cash alternative or other reasonable alternative for the distributed assets.

To codify Listing Decision LD75-4 to impose additional requirements where an issuer proposes a significant distribution in specie of unlisted assets comparable to requirements for a withdrawal of listing.

The current Listing Rules set out the information required to be disclosed in an announcement and the next annual report in relation to any financial performance guarantee given by a connected person where the actual financial performance fails to meet the guarantee.

Where an independent party provides a financial performance guarantee, the current rules do not provide any specific disclosure requirements in this regard, but the Exchange has recommended in a report on its review of annual report disclosures that as a matter of accountability and transparency, issuers should follow the disclosure requirements even where the counterparty is independent, and should make these disclosures in all circumstances involving financial performance guarantees (including where the financial performance guaranteed was met).

To require (i) disclosure on the outcome of any guarantee on the financial performance of an acquisition target that is subject to the notifiable or connected transaction requirements (irrespective of whether the guaranteed financial performance is met) in the next annual report; and (ii) disclosure by way of an announcement if (a) there is any subsequent change to the terms of the guarantee; or (b) the actual financial performance of the target acquired fails to meet the guarantee.

The current Listing Rules require issuers to disclose in notifiable transaction and connected transaction announcements a general description of the principal business activities of the parties to the transaction (if the counterparty is a company or entity).

For connected transactions, the current Listing Rules require issuers to disclose the identity and activities of the parties to the transaction and of their ultimate beneficial owners in the circulars.

To require (i) disclosure on the identities of the parties to a transaction in the announcements and circulars of notifiable transactions; and (ii) disclosure on the identities and activities of the parties to the transaction and of their ultimate beneficial owners in the announcements of connected transactions.

Under the current Listing Rules, issuers are required to classify the size of a notifiable or connected transaction using five percentage ratios, which are generally based on the latest published financial positions of the issuers, which may not reflect the current financial position of the issuer in some cases, e.g., where the issuer made a material disposal shortly before an acquisition.

To make it clear that where any calculation of the percentage ratios produces an anomalous result or is inappropriate to the sphere of activity of the listed issuer, the Exchange (or the issuer) may apply an alternative size test that it considers appropriate to assess the materiality of a transaction under Chapter 14 or 14A.

2014年5 月，联交所刊发指引信GL78-14就反收购规则的应用提供指引。其中，指引信指出，在原则为本的测试下，联交所会考虑以下六项评估因素：

• 交易规模
• 目标资产质量
• 发行人业务性质及规模
• 主营业务出现根本转变
• 发行受限制可换股证券
• 一连串的交易及／或安排，以规避反收购规则

控制权或实际控制权变动

延伸现时原则为本测试中的「发行受限制可换股证券」因素至适用于发行人控制权或实际控制权出现变动的情况。

在评估发行人的控制权或实际控制权是否有变时，联交所将考虑(i) 发行人控股股东是否有任何转变；或(ii) 对发行人有实际控制权的单一最大主要股东是否有任何转变（如董事会及／或高层管理人员出现重大转变等因素所示）。

一连串的交易及／或安排

修改后的《上市规则》订明，这些交易或安排可包括在合理接近的时间内（通常为36个月之内）进行又或互有关连的控制权╱实际控制权转变、收购及╱或出售事项。

(a)   在构成非常重大的收购事项的一项资产收购或一连串资产收购进行时，发行人的控制权（如《收购守则》所界定）有变，或有关收购将导致控制权有变；或

(b)   在发行人的控制权（如《收购守则》所界定）发生转变后的24个月内，上市发行人向新控股股东或其联系人收购资产，而有关资产收购（以个别或总计而言）构成非常重大的收购事项。

联交所亦可限制发行人不得在实际控制权（如原则为本测试中所载）转手之时或其后36个月内进行有关出售或作实物配发。

为可使用此交易类别的发行人增设合资格准则：(a)发行人须有规模庞大的主要业务；或(b)发行人须长时间（一般不少于36个月）受同一人控制或实际控制，而且有关交易不会令发行人控制权或实际控制权有变。

经扩大后的集团或将被收购的资产必须符合业绩纪录的规定，而经扩大后的集团亦须符合《上市规则》的所有其他基本上市条件。现时此等规定适用于极端非常重大交易。

若反收购是由未能符合《上市规则》第13.24条规定的发行人（该条文要求发行人有足够的业务运作及╱或拥有相当价值的资产，其证券才得以继续上市）提出，则收购目标亦须符合《上市规则》第8.07条的规定（足够公众人士感兴趣的要求）。

要求发行人向联交所提交收购目标以会计师报告或经审计财务资料为基础的财务资料，以证明收购目标符合《上市规则》第8.05 条。

考虑发行人是否符合该规定时，发行人集团（依据《上市规则》第二十一章上市的公司除外）的自营证券交易及／或投资活动一般不包括在内（发行人集团内经营银行业务的公司、保险公司或主要从事《证券及期货条例》项下的受规管活动的证券公司的成员所进行的自营证券交易及／或投资活动除外）。

现金资产公司规则不适用于根据《上市规则》第二十一章上市的投资公司，亦不适用于主要或仅从事证券经纪业务的发行人。

收紧豁免，使豁免只限于发行人集团内经营银行业务的公司、保险公司或证券公司的成员持有的现金及短期投资，惟若联交所怀疑经营证券公司的发行人是透过成员公司持有现金及短期投资规避现金资产公司规则，则豁免不适用。

近年，部分发行人将证券买卖/投资作为其中一项主营业务活动，使其证券交易可获得收益豁免。

现行《上市规则》并未就独立方提供财务表现保证的情况作出任何具体规定。在从审阅年报内容监察发行人合规情况中，联交所建议，为问责及透明度之故，即使对手方为独立人士，发行人应该遵从上述披露要求，且应在所有涉及财务表现保证的情况（包括达到所保证的财务表现）下均作出有关披露。

就关连交易而言，现行《上市规则》要求发行人必须在通函中披露交易中各方的身份及业务，及各方最终实益拥有人的身份及业务。