1 Regulation of Sponsors & Independent Financial Advisers HKEx briefings 7, 8 & 13 December 2004.

1

Regulation of Sponsors &

Independent Financial Advisers

HKEx briefings

7, 8 & 13 December 2004

2

In October HKEx & SFC announced:

Consultation conclusions Rule amendments (commence 1 January 2005 -

subject to transitional arrangements)

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Process Key Objectives Key Aspects 2 Phases Rule Changes

Agenda:

sponsors & CAs

IFAs

transitional Enforcement

Questions

4

Conclusions informed by extensive market consultation

In conjunction with May 2003 consultation paper Conclusions & rule amendments approved by SEHK

& Commission

Process:

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Agenda:

sponsors & CAs

IFAs


Questions

6

Sponsors play an important role in HK. Variance of expectations

To address expectation gap:

Key Objectives:

clear framework for role of sponsors, compliance advisers & IFAs

make it abundantly clear what is expected of them & issuers that appoint them

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Agenda:

sponsors & CAs

IFAs


Questions

8

WILL codify current expectations WILL clearly set out:

Key Aspects:

Conclusions & amended rules:

when sponsors, CAs & IFAs must be appointed when sponsors, CAs & IFAs must be

independent & what is independence

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role of sponsors, CAs & IFAs including due diligence

role of issuers in assisting sponsors & CAs

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WILL make it clear that sponsors, CAs & IFAs can only do what is reasonable & appropriate

WILL NOT expect sponsors to verify expert reports/ be experts

WILL allow engaging of 3rd party professionals (but sponsor must ensure work not substandard)

WILL NOT shift obligations from directors/experts to sponsors

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Agenda:

sponsors & CAs

IFAs


Questions

12

2. How? 1 January 2005: most amendments late 2005: new SFC regime &

further consequential amendments

1. Why?

Initial & continuing eligibility to be solely in SFC’s licensing regime

2 Phases:

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Agenda:

sponsors & CAs

IFAs


Questions

14

include new chapter re sponsors & CAs

(MB Ch.3A; GEM Ch.6A) include new rules re IFAs

(MB 13.80 to 13.87; GEM 17.92 to 17.99) include new PN re due diligence by sponsors

(MB PN21; GEM PN2) address incidental amendments

Rule Changes:

On 1 January, rules amended to:

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6A.02 re eligibility (MB: sponsor to be acceptable to SEHK; GEM: sponsor to be admitted to list of acceptable sponsors)

6A.19 re length of appointment of CA (MB: 1+ years; GEM: 2+ years)

different incidental amendments

New MB & GEM rules largely identical

Differences include e.g.:

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Agenda:

sponsors & CAs

IFAs


Questions

17

Sponsors & compliance advisers:

1. Appointment

3 scenarios:

pre-listing (& deemed new listings) immediately post-listing other time as directed (3A.20)

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sponsor to assist with IPO (3A.02) no co-sponsorship BUT can engage more than

1 sponsor if more than 1 (3A.10):

Pre-listing & deemed new listings:

advise primary communication channel all equally responsible all must act impartially (3A.06) only 1 need be independent

(come back to independence)

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Post-listing:

CA for 1 year+ (3A.19); (GEM - 2 years+) can be different to sponsor need not be independent but must act

impartially

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2. Eligibility

Until 2005:

MB: acceptable to SEHK

GEM: on eligible list CAs: adopt sponsor regime

After 2005: determined by SFC

sponsors: status quo i.e.:

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3. Independence

all sponsors & CAs must perform duties with impartiality

sponsors must be independent; if more than 1, then only 1 need be

listing document must disclose each sponsor’s independence & if not independent, how

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all sponsors must give SEHK statement re independence addressing criteria (3A.08)

independence test: bright line test to be applied by sponsor / issuer (3A.07)

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(d) any controlling shareholder of:

(i) the sponsor or

(ii) any holding company of the sponsor

which controlling shareholder is not, itself, a holding company of the sponsor &

(e) any associate of any controlling shareholder referred to in paragraph (d) above

“sponsor group” is defined at 3A.01(9) as:

(a) a sponsor

(b) any holding company of the sponsor

(c) any subsidiary of any holding company of the sponsor

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This chart does not form part of the Listing Rules

Definition of “sponsor group”

(: Main Board rule 3A.01 and GEM rule 6A.01)

Associates of controlling shareholder (CS)

Holding company of sponsor (Co A)

CS of Co A that is not, itself, a holding company of sponsor

CS of sponsor that is not, itself, a holding company of sponsor

Subsidiary of Co A Sponsor

Associates of CS

Associates of CS

Associates of CS

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Definition of “sponsor group”

(incorporating effect of definition of “holding company” in s2(7) Companies Ordinance)


Holding company of sponsor (Co A)

CS of Co A that is not, itself, a holding company of sponsor

CS of sponsor that is not, itself, a holding company of sponsor

Subsidiary of Co A Sponsor

Associates of CS

Associates of CS

Associates of CS

Subsidiary of subsidiary of Co A

Subsidiary of sponsorSubsidiary of subsidiary of Co A

Subsidiary of sponsor

Subsidiary of

subsidiary of sponsor

Subsidiary of


Subsidiary of


Subsidiary of


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3A.07 provides sponsor is not independent if:

(1) the sponsor group & any director or associate of a director of the sponsor collectively holds or will hold,

directly or indirectly more than 5% of the issued share capital of

the new applicant save & except where that holding arises as a

result of an underwriting obligation

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(2) the fair value of the direct or indirect current or prospective shareholding of the sponsor group in the new applicant

exceeds or will exceed 15% of the net equity shown in the latest consolidated financial statements of

the sponsor’s ultimate holding company or where there is no ultimate holding company,

the sponsor

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(3) any member of the sponsor group or any director or associate of a director of the sponsor is

an associate or connected person of the new applicant

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(4) 15% or more of the proceeds raised from the initial public offering of the new applicant

are to be applied directly or indirectly to settle debts due to the sponsor group

save & except where those debts are on account of fees payable to the sponsor group for subject sponsorship services

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(5) the aggregate of:

(a) amounts due to the sponsor group from the new applicant & its subsidiaries; &

(b) all guarantees given by the sponsor group on behalf of the new applicant & its subsidiaries

exceeds 30% of the total assets of the new applicant

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(6) the aggregate of:

(a) amounts due to the sponsor group from:

(i) the new applicant (ii) the new applicant’s

subsidiaries

(iii) any controlling shareholder of the new applicant; &

(iv) any associates of any controlling shareholder of the new applicant; &

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(b) all guarantees given by the sponsor group on behalf of:

(i) the new applicant

(ii) the new applicant’s subsidiaries

(iii) any controlling shareholder of the new applicant; &

(iv) any associates of any controlling shareholder of the new applicant

exceeds 10% of the total assets shown in the latest consolidated financial statements of the sponsor’s ultimate holding company (or the sponsor)

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(7) the fair value of the direct or indirect shareholding of:

(a) a director of the sponsor

(b) a director of any holding company of the sponsor

(c) an associate of a director of the sponsor; or

(d) an associate of a director of any holding company of the sponsor

in the new applicant exceeds HKD 5 million;

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(8) an employee or director of the sponsor who is directly engaged in providing the subject sponsorship services to the new applicant, or

an associate of such an employee or director holds or will hold shares in the new applicant

or has or will have a beneficial interest in shares

in the new applicant

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(9) any of the following has a current business relationship with the new applicant or a director, subsidiary, holding company or

substantial shareholder of the new applicant which would be reasonably considered to affect

the sponsor’s independence, or might reasonably give rise to a perception that

the sponsor’s independence would be so affected

except where relationship arises pursuant to subject sponsorship services:

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(a) any member of the sponsor group

(b) an employee of the sponsor who is directly engaged in providing the subject

sponsorship services to the new applicant

(c) an associate of an employee of the sponsor who is directly engaged in providing the subject sponsorship services to the new applicant

(d) a director of any member of the sponsor group; or

(e) an associate of a director of any member of the sponsor group

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(10) the sponsor or a member of the sponsor group is the auditor or reporting accountant of the new

applicant.

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4. Roles

sponsors: proactive

CAs: reactive

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sponsors (3A.04): comply LRs use reasonable endeavours to ensure info to

SEHK is true & complete promptly advise if that changes cooperate in Division / Listing Committee

investigation CAs (3A.22):

comply LRs cooperate in Division / Listing Committee

investigation

must give undertakings:

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sponsors’ role set out in 3A.11 sponsors must:

comply with undertaking be closely involved in preparation of listing

documents ensure 9.03 & 9.05 to 9.08 complied with address SEHK questions etc accompany new applicant to meetings with

SEHK conduct reasonable DD to make declaration in

3A.13

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5. Due diligence declaration

will cover due diligence re:

director’s declaration(s) compliance with basic listing conditions sufficiency of listing document new applicant’s systems & controls

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directors’ collective experience, qualifications & competence

directors’ individual experience, qualifications & competence

expert sections of listing document including whether:

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factual information relied on by expert is true & complete (unless verified by expert)

all bases & assumptions = fair, reasonable & complete

expert appropriately qualified, experienced & resourced

expert scope of work appropriate

expert independent

listing document fairly represents expert views

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6. Due diligence by sponsors

in determining what is reasonable DD refer new PN (3A.12)

requirement for DD: is not new

crystallises existing expectations

is not intended to replace directors’ & experts’ obligations

will not absolve general obligations as CF advisers under SFC administered laws & codes

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PN:

applies only to sponsor firms; not CAs, IFAs or individuals

is not a checklist / minimum steps

is SEHK’s expectations of typical DD steps (actual steps may be more or less)

is subject to what is reasonable

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PN provides:

sponsor should make inquiries until can reasonably satisfy itself in relation to the disclosure in the listing document

sponsor should examine with professional scepticism the accuracy & completeness of statements & representations made, or other information given, to it

professional scepticism means making a critical assessment with a questioning mind & being alert to information that contradicts or brings into question reliability

(at para 2)

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[PN] sets out Exchange’s expectations of DD sponsors will typically perform

PN does not set out actual steps that may be appropriate in any particular case

each new applicant is unique & so will be DD steps necessary

scope & extent of appropriate DD may be different from (& in some cases, considerably more extensive than) the more typical examples in [PN]

sponsor must exercise judgment as to what investigations or steps are appropriate & the extent of each step

(at para 3)

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Exchange expects sponsors to document DD planning & significant deviations from plans

includes demonstrating that turned their minds to question of what inquiries are necessary & reasonably practicable in the context & circumstances

Exchange also expects sponsors to document conclusions in respect of new applicant’s compliance with all the conditions in Chapter 8

(at para 4)

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may be appropriate for a sponsor to engage 3rd party professionals to assist with tasks related to DD

e.g. assistance in reviewing circumstances of current legal proceedings

in such cases, Exchange expects sponsor to satisfy itself is reasonable to rely on information / advice provided by the 3rd party

Including e.g.:

(at para 5)

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(a) being satisfied as to:

competence of the professional scope of work to be undertaken by 3rd party methodology proposed to be used by 3rd

party

(b) being satisfied that 3rd party’s report or opinion is consistent with other information known to sponsor about new applicant, its business & its business plans

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DD expectations in PN include:

1. re collective & individual experience, qualifications, competence & integrity

of directors:

(a) review directors’ past performance(b) assess individually & collectively directors’ financial literacy, corporate governance experience & competence(c) review financial & regulatory track record of listed companies directors previously involved with

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2. re new applicant’s compliance with qualifications for listing:

(c) assess accuracy & completeness ofinformation submitted to demonstrate trading record requirement

(a) search co registry in place of incorporation to confirm new applicant duly established

(b) review material financial information including:

(i) new applicant’s & subsidiaries’ financial statements

(ii) internal financial records, tax certificates etc for trading record period

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(a) assess financial information to be in listing document including:

3. re preparation of listing document & supporting information:

(i) obtaining written confirmation from new applicant & directors that properly extracted

(ii) satisfied confirmation given after due & careful inquiry

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(b) assess performance & finances, business plan & any profit forecast / estimate - normally including interviewing senior management & often major suppliers, customers, creditors & bankers

(c) assess whether financial change requiring disclosure

(d) assess whether reasonable to conclude issue proceeds will be used as proposed

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(e) undertake physical inspection of material assets

(f) understand new applicant’s production methods

(g) understand how new applicant manages its business

(h) review business aspects of contracts material to the business

(i) review legal proceedings / other material disputes

(j) analyse business aspects of economic, political or legal conditions that may materially affect the business

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(k) consider industry & target markets

(l) assess whether appropriate documentation to confirm material assets appropriately held by new applicant

(m) assess existence, validity & business aspects of new applicant’s rights e.g. proprietary interests, IP rights & licensing arrangements

(n) understand technical feasibility of new product / service / technology

(o) assess stage of development of the business & business plan

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4. re expert sections of listing document:

(a) interview expert & review terms of engagement & public information to assess:

(i) expert’s qualifications, experience & resources

(ii) whether expert is competent to undertake the work

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(b) review expert sections as to whether following are disclosed / commented on appropriately:

(i) factual information on which expert relies

(ii) assumptions on which expert opinion based

(iii) scope of work performed by expert in arriving at opinion

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(c) verify factual information

(d) where sponsor is aware new applicant made formal or informal representations to expert, assess whether representations are consistent

with sponsor’s knowledge

(e) by reference to sponsor’s knowledge assess whether assumptions on which expert opinion is based, are fair, reasonable & complete

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(f) if opinion is qualified, assess whether qualification is adequately disclosed in listing document

(g) where standard of independence is not set, obtain written confirmation from expert that it is

independent

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5. re new applicant’s accounting & management systems & directors’ appreciation of their / new applicant’s obligations:

(a) assess new applicant’s accounting & management systems relevant

(b) interview all directors / senior managers with key responsibilities for ensuring compliance to assess their individual & collective experience, qualifications & competence & understanding of relevant obligations

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6. to the extent sponsor finds new applicant’s procedures / directors / key senior managers inadequate discuss with board & recommend remedial steps

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7. CAs

need only advise when consulted

3A.23: when issuers must consult CA: before publication of announcement, circular

or financial report

notifiable or connected transaction contemplated

proposing to use IPO proceeds not as disclosed

issuer’s business activities etc deviate from forecast, estimate or other in listing document

SEHK makes inquiry under 13.10

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ensure issuer is properly guided & advised as to LR compliance …

accompany issuer to meetings with SEHK

discuss with issuer:

3A.24: what CAs must do e.g.:

operating performance & use of proceeds as disclosed

waiver compliance

whether profit forecasts will be met

compliance with issuer’s & its directors’ undertakings

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8. Termination & resignation

some limitations

sponsors: 3A.17 to 3A.18

CAs: 3A.26 to 3A.27

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Agenda:

sponsors & CAs

IFAs


Questions

67

IFAs:

1. Overview of rule amendments

insert new rules 13.80 to 13.87 new rules will:

require IFAs take reasonable steps to ensure reasonable basis for opinion letter

set out what are reasonable steps (based on sponsor PN)

set out independence test require undertaking & declaration similar to

sponsors

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2. Appointment

no change 13.39(6)(b) and 19.05(6)(a)(iii) provide for

appointment of IFA acceptable to SEHK

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3. Independence

all IFAs must perform duties with impartiality all IFAs must be independent bright-line test (13.84) must declare independence to SEHK (13.85(1))

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(d) any controlling shareholder of:

(i) the IFA; or

(ii) any holding company of the IFA, which controlling shareholder is not, itself, a holding company of the IFA; &

(e) any associate of any controlling shareholder referred to in paragraph (d) above

“IFA group” is defined at 1.01 as:

(a) the IFA

(b) any holding company of the IFA

(c) any subsidiary of any holding company of the IFA

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Definition of “IFA group”

(: Main Board rule 1.01 and GEM rule 1.01)


Holding company of IFA (Co A)

CS of Co A that is not, itself, a holding company of IFA

CS of IFA that is not, itself, a holding company of IFA

Subsidiary of Co A IFA

Associates of CS

Associates of CS

Associates of CS

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Definition of “IFA group”

(incorporating effect of definition of “holding company” in s2(7) Companies Ordinance)


Holding company of IFA (Co A)

CS of Co A that is not, itself, a holding company of IFA

CS of IFA that is not, itself, a holding company of IFA

Subsidiary of Co A IFA

Associates of CS

Associates of CS

Associates of CS

Subsidiary of subsidiary of Co A

Subsidiary of IFASubsidiary of subsidiary of Co A

Subsidiary of IFA

Subsidiary of

subsidiary of IFA

Subsidiary of

subsidiary of IFA

Subsidiary of

subsidiary of IFA

Subsidiary of

subsidiary of IFA

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13.84 provides an IFA is not independent if:

the issued share capital of the issuer another party to the transaction; or an associate or connected person of the

issuer or another party to the transaction

1. the IFA group & any director or associate of a director of the [IFA] holds, directly or indirectly, in aggregate more than 5% of:

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2. any member of the IFA group or any director or associate of a director of the [IFA] is

an associate or connected person of the issuer or another party to the transaction

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(a) the aggregate of:

(i) amounts due to the IFA group from:

3. any of the following exceeds 10% of total assets shown in latest consolidated financial statements of [IFA’s] ultimate holding company (or, where is no ultimate holding company, the [IFA]):

(A) the issuer

(B) the issuer’s subsidiaries

(C) any controlling shareholder of the issuer; &

(D) any associates of any controlling shareholder of the issuer; &

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(ii) all guarantees given by the IFA group on behalf of:

(A) the issuer

(B) the issuer’s subsidiaries

(C) any controlling shareholder of the issuer; &

(D) any associates of any controlling shareholder of the issuer

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(i) amounts due from IFA group to:

(A) issuer

(B) issuer’s subsidiaries; &

(C) any controlling shareholder of issuer; &

(ii) all guarantees given on behalf of IFA group by:

(A) issuer

(B) issuer’s subsidiaries; &

(C) any controlling shareholder of issuer

(b) the aggregate of:

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(i) amounts due from the IFA group to any of the following (referred to in this rule as “the Other Parties”):

(A) another party to transaction(B) any holding company of another party to transaction(C) any subsidiary of any holding company of another party to transaction

(c) the aggregate of:

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(D) any controlling shareholder of:

(1) another party to the transaction; or

(2) any holding company of another party to the transaction,

(E) any associate of any controlling shareholder referred to in paragraph (D) above; &

which controlling shareholder is not, itself, a holding company of another party to the transaction

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(ii) all guarantees given by any of the Other Parties on behalf of the IFA group; &

(d) the aggregate of:

(i) amounts due to the IFA group from any of the Other Parties; &

(ii) all guarantees given by the IFA group on behalf of any of the Other Parties

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4. any of the following has a current business relationship with the issuer or another party to the transaction, or

a director, subsidiary, holding company or substantial shareholder of the issuer or another party to the transaction

which would be reasonably considered to affect the [IFA’s] independence in performing its duties as set out in the [rules], or

might reasonably give rise to a perception that the [IFA’s] independence would be so affected

save & except where that relationship arises pursuant to the [IFA’s] appointment for the purpose of providing the subject advice:

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(a) any member of IFA group

(b) an employee of [IFA] who is directly engaged in providing the subject advice to the issuer

(c) an associate of employee of the [IFA] who is directly engaged in providing the subject advice to the issuer

(d) a director of any member of IFA group; or

(e) an associate of a director of any member of IFA group

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5. within 2 years prior to making declaration pursuant to 13.85(1):

(a) a member of IFA group has served as financial adviser to:

(i) issuer or its subsidiaries

(ii) another party to transaction or its subsidiaries; or

(iii) a connected person of issuer or another party to transaction; or

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(b) without limiting para (a), an employee or a director of [IFA] who is directly engaged in providing subject advice to issuer:

(i) was employed by or was a director of another firm that served as a financial adviser to any of the entities referred to at para (a)(i) to (a)(iii) above; &

(ii) in that capacity, was directly engaged in provision of financial advice to the issuer or another party to the transaction

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6. the [IFA] or a member of IFA group is issuer’s auditor or reporting accountant

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4. Due diligence by IFAs

13.80 requires that an IFA take all reasonable steps to satisfy itself that: it has a reasonable basis for making the

statements required there is no reason to believe any of the

information relied on by the IFA or by any 3rd party expert relied on by the IFA is not true or omits a material fact

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obtaining issuer’s information / documents relevant to assessment of fairness & reasonableness of terms of transaction

researching relevant market & other conditions & trends relevant to the transaction pricing

reviewing fairness, reasonableness & completeness of any relevant assumptions or projections

Note 1 to 13.80 sets out Exchange’s expectations of reasonable steps an IFA will typically perform including:

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re any 3rd party expert:

interviewing expert reviewing terms of engagement where IFA is aware issuer or another party has

made formal / informal representations to expert, assessing whether representations accord with IFA’s knowledge

if any relevant alternative offers made, reviewing & assessing them & reasons for rejecting them

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Agenda:

sponsors & CAs

IFAs


Questions

90

Transition:

applications made on or after 20 Oct 2004 but completed by 31 Dec 2004:

rules will not apply

applications made on or before 19 Oct 2004:

rules will not apply

91

other applications

rules will apply on 1 Jan 2005

on 1 Jan 2005 have to comply with steps passed (e.g.: requirement for independence statement & undertaking)

BUT Division has discretion to modify if new applicant demonstrates compliance would cause significant hardship

92

IFA rules will apply to all IFA appointments made after 1 Jan 2005

93


Agenda:

sponsors & CAs

IFAs


Questions

94

Enforcement:

Clear message:

SEHK & SFC will continue to co-operate to ensure failures to meet the standards are addressed promptly & effectively

95

Clear policy and rules as to what is expected

conduct reasonable DD to put itself in a position to be able to make DD declaration

(from PN) document DD planning and significant deviations from plans

(from PN) document conclusions re basic listing conditions compliance

Monitoring of sponsors aided by requirement that:

Tightening of structure including:

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did issuer consult CA?

if CA consulted, when consulted and did it e.g. ensure issuer properly guided and advised?

Monitoring of CAs aided; e.g. could ask:

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having clear policy

undertakings:

Investigation and enforcement aided by e.g.:

confirm contractual nexus require (sponsors, CAs and IFAs) to

cooperate in investigations

98

Breaches may still e.g.:

private reprimand

public statement with criticism

public censure

GEM: removal from sponsors list

impact upon fitness & properness

revocation / suspension of licence

SFO penalty

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Agenda:

sponsors & CAs

IFAs


Questions

100

When What Why

IPO planning Appoint sponsor/s 3A.02

Sponsor must make independence statement to SEHK; make statement even if not the independent sponsor; assess as at the time of making the declaration pursuant to 3A.13

MB: When first submit documents to SEHK or before

GEM: At least 25 clear business days before provisional hearing of application

3A.03 to 3A.04, 3A.07; App 17

Ne

w a

pp

lica

nt

& it

s d

irect

ors

mu

st a

ssis

t sp

on

sor

(3A

.05

)

Sp

on

sor

mu

st p

erf

orm

du

ties

imp

art

ially

(3

A.0

6)

If sponsor / new applicant becomes aware of change from independence statement

Notify SEHK asap 3A.09

Sponsor must submit to SEHK declaration in terms of 3A.14 to 3A.16 informed by reasonable due diligence inquiries undertaken having regard to PN

Asap after hearing of listing application but on or before issue of listing document

3A.11(2), 3A.12, 3A.13; App 19

101

When What Why

CA

s m

ust

pe

rfo

rm d

utie

s im

pa

rtia

lly (

3A

.25

)

Initial listing Appoint CA (MB: 1+ years / GEM: 2+ years)

3A.19

No later than immediately CA & issuer agree terms of engagement or, if later, CA commencing work for issuer

CA must give undertaking to SEHK

3A.21

Issuer must consult with and, if necessary, seek advice from its CA

At times set out in 3A.23

3A.23

When consulted CA must discharge duties in 3A.24

3A.24

102

When What Why

After Fixed Period SEHK may direct listed issuer to appoint a CA for a further period

3A.20

103

Questions?

1 Regulation of Sponsors & Independent Financial Advisers HKEx briefings 7, 8 & 13 December 2004.

Documents

Transcript of 1 Regulation of Sponsors & Independent Financial Advisers HKEx briefings 7, 8 & 13 December 2004.