Hong Kong IPO Sponsor Reforms.

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1 December 2012 Hong Kong IPO Sponsor Reforms. Background The Securities and Futures Commission (the SFC ) published on 12 December 2012 its Consultation Conclusions on the Regulation of IPO Sponsors (the Consultation Conclusions ). This much anticipated publication follows a six-month consultation exercise launched by the SFC in May this year, with 71 responses being submitted by a wide range of market participants including sponsor firms, listed companies, institutional investors, law firms, accountants and other professional bodies and interest groups. Most of the key reforms proposed in the Consultation Paper on the Regulation of Sponsors (the Consultation Paper ) unveiled in May will be adopted. A few others were refined in the Consultation Conclusions. The SFC hopes, by introducing these new requirements, to enable and incentivise the sponsor community to take a more responsible, proactive and constructive role in leading IPOs and ultimately, restore market confidence after the series of IPO scandals. Contents Background... 1 Highlights... 1 Prospectus liability... 1 Publication of application proof... 2 Expert reports... 2 Multiple sponsors and sponsor independence... 3 Record retention... 3 Other issues... 3 Next steps... 4 Highlights Prospectus liability This is the most controversial and eye-catching issue raised in the Consultation Conclusions. The SFC will propose legislative amendments to clarify that sponsors will be subject to civil and criminal liability under sections 40, 40A and 342F of the Companies Ordinance (the CO ). The proposed changes are (1) the current CO statutory liability provisions be amended so that a person who has authorised the issue of a prospectus includes a sponsor; and (2) for criminal liability, prosecution should bear the burden to prove that: (a) a person authorising the issue of the prospectus knew that, or was reckless as to whether, a statement in the prospectus identified by the prosecution was untrue; and (b) the untrue statement was materially adverse from an investor s perspective. Hong Kong IPO Sponsor Reforms 1

2 The SFC also makes it clear in its response to public comments that it is the sponsor firm and not the individual staff member that will be subject to the proposed civil and criminal liability provisions. This does not mean, however, individuals working in sponsor firms are free from criminal liability. An individual (whether or not in the sponsor firm) will be subject to criminal liability, if there is evidence that he has colluded in the making of an untrue statement in a prospectus or when an individual is concerned in the management of a sponsor firm, there is evidence that the sponsor firm committed a criminal offence with the individual s consent or connivance. The proposed clarification may only be made by amending the CO prospectus liability provisions and this process is subject to the usual legislative process for amending any primary law. Publication of application proof When this proposal was introduced in the Consultation Paper, it was met with certain market reluctance and in some cases, strong resistance from certain sponsor firms for various reasons set out in the Consultation Conclusions. The SFC, however, believes this proposal will encourage the submission of a quality first draft prospectus and enhance the transparency of the listing application process. Therefore, it considers it appropriate to proceed with the proposal. To create a deterrence from submitting an application with lesser quality application proof prospectus, the SFC suggests the Stock Exchange of Hong Kong Limited (the Stock Exchange ) strengthen its practice of rejecting a sub-standard document and consider imposing a cooling-off period within which the submission of a revised draft will be disallowed. It also says in the Consultation Conclusions that it will work with the Stock Exchange on measures to streamline and shorten the regulatory commenting process. Details of these measures will be the subject of a separate announcement. Ultimately, the SFC says, all successive amended drafts of the prospectus, regulatory comments and the applicant s responses will be made public. Expert reports The SFC reinforces that the proposal that a sponsor be required to be able to demonstrate the reasonableness for it to rely on the expert sections of a prospectus is important in helping assure the integrity of information disclosure. In light of market comments, however, it refines the guidance on the work expected of a sponsor in reaching its reasonable reliance conclusion regarding an expert s report. Four main areas are identified in the revised paragraph 17.7 of the Code of Conduct for Persons Licensed by or Registered with the SFC (the Code of Conduct ) (1) the expert s qualification, experience and independence; (2) the expert s scope of work; (3) the bases and assumptions underlying the report; and (4) the expert s opinion together with the rest of the information contained in the report. Hong Kong IPO Sponsor Reforms 2

3 Multiple sponsors and sponsor independence Having examined the market responses on this issue, the SFC has decided not to proceed with the proposals to require a sole sponsor or to impose a limit on the number of sponsors that may be appointed to the same transaction. The current requirement under the Rules Governing the Listing of Securities on the Stock Exchange of Hong Kong Limited (the Listing Rules ) that one of the sponsors must be independent will be maintained. Record retention The proposal that a complete set of sponsor s records in connection with a listing transaction should be retained in Hong Kong for at least seven years after completion or termination of the transaction will be adopted. A sponsor, however, will not be expected to keep the underlying records of the listing applicant, working papers of experts and third parties or original documents not prepared by the sponsor. To the extent that these documents are examined to enable a sponsor to reach the opinions, assurances and conclusions that are required under the Code of Conduct, it is sufficient for the sponsor to record the key aspects of the documents examined. Other issues In addition to the issues mentioned in the Consultation Paper, the SFC also addresses various new issues raised by respondents in the consultation exercise or market participants through soft consultation. Some of them are of great importance. The SFC recognises that a sponsor, who plays a central and unique role in leading and co-ordinating the entire listing process, should be afforded adequate authority and appropriate support so that it can discharge its role more effectively. The SFC has introduced a number of new requirements in the Consultation Conclusions Minimum appointment period: A sponsor will be required to be formally appointed by a listing applicant for a minimum period of two months before submission of a listing application. In the event that more than one sponsor is appointed in respect of the same IPO, the listing application may only be made not less than two months from the date the last sponsor is formally appointed (revised paragraph 17.11(b)(i) of the Code of Conduct). Specified sponsor fee: The sponsor fee will be required to be specified in a sponsor s terms of engagement and be based solely on a sponsor s role as such and not on unrelated services (such as bookbuilding, pricing or other underwriting related functions). It should not be contingent on the success or the final size of the offering and any staged payments should be proportional to the amount of work done up to that stage. The total amount of paid and payable sponsor fee should be disclosed in the listing document (revised paragraph 17.11(b)(ii) of the Code of Conduct). Required co-operation from financial adviser: A financial adviser who is appointed to advise a listing applicant will be required to fully Hong Kong IPO Sponsor Reforms 3

4 co-operate with, and should not adversely affect, the sponsor in discharging its duties (revised paragraph 5.4 of the Corporate Finance Advisor Code of Conduct). Notification to the Stock Exchange: A sponsor will be required to notify the Stock Exchange when it is formally appointed or when it ceases to act for the listing applicant at any time after its formal appointment, regardless of whether a listing application has been submitted (revised paragraph 17.9(d) of the Code of Conduct). Next steps Most of the new requirements will become effective on 1 October 2013 and will apply to listing applications submitted on or after 1 October The changes in relation to statutory prospectus liability will be subject to a separate legislative process and timetable. The Stock Exchange and the SFC have discussed and agreed in principle the amendments to the Listing Rules required to dovetail the rules with the Code of Conduct and to remove relevant requirements, where appropriate, to avoid duplication. The Stock Exchange will also make appropriate changes to the Listing Rules to implement the proposal to publish the application proof prospectus. Finally, the SFC will work closely with the Stock Exchange to formulate specific measures to streamline the regulatory commenting and other aspects of the IPO process. Details of these measures will be the subject of a separate announcement. We will keep you updated. If you would like to discuss any of the changes in detail, please contact your usual Linklaters contact. Hong Kong IPO Sponsor Reforms 4

5 This publication is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts, or contact the editors. Linklaters. All Rights reserved 2012 Linklaters Hong Kong is a law firm affiliated with Linklaters LLP, a limited liability partnership registered in England and Wales with registered number OC It is a law firm authorised and regulated by the Solicitors Regulation Authority. The term partner in relation to Linklaters LLP is used to refer to a member of the LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP and of the non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ, England or on Please refer to for important information on our regulatory position. We currently hold your contact details, which we use to send you newsletters such as this and for other marketing and business communications. We use your contact details for our own internal purposes only. This information is available to our offices worldwide and to those of our associated firms. If any of your details are incorrect or have recently changed, or if you no longer wish to receive this newsletter or other marketing communications, please let us know by ing us at Hong Kong IPO Sponsor Reforms 5 A /0.1/13 Dec 2012

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