条款

修订前

修订后

16A

For the avoidance of doubts, where restricted businesses are  involved, the use of Structured Contracts are permitted only to address the foreign ownership restriction, e.g. foreign investors can only operate the restricted businesses under joint ventures with the foreign portion of the total investment and hence shareholding  below 50%. For requirements other than the foreign ownership  restriction (the “Other Requirements”), applicants should demonstrate to the satisfaction of the Exchange that they have, upon

Advice from their legal advisers, reasonably assessed the requirements under all applicable rules and have taken all reasonable steps to comply with them before listing.

All listing applicants without exception (including applicants transferring its listing from GEM to the Main Board) must narrowly tailor their Contractual Arrangements regardless of materiality of the business, in terms of revenue or profit or otherwise, to the listing applicant. This means that Contractual Arrangements may only be used to the extent necessary to address any limits on foreign ownership, except as provided in paragraphs 16B and 16C. The listing applicant must otherwise directly hold the maximum permitted interest in the OPCO. For the avoidance of doubt, even if the listing applicant is able to control OPCO through the direct equity interest held by it in OPCO (e.g. by holding a direct equity  interest of more than 50%), the remaining equity interest that is not permitted to be directly held by it may still be held through Contractual Arrangements.

16B

All applicants without exception (including applicants transferring its listing from GEM to the Main Board), must take reasonable steps to comply with the Other Requirements before listing, regardless of materiality of the business on which the Other Requirements are  imposed, in terms of revenue or profit or otherwise, to the applicant. While the applicant may not be in full compliance with the Other Requirements prior to listing (or prior to transferring its listing from GEM to the Main Board), it must have committed financial and other resources to implement full compliance.

If the OPCO, as a result of having foreign ownership, is required to obtain approval and fulfill additional eligibility standards (“Other Requirements”), the listing applicant must fulfill such Other Requirements. The listing applicant must  seek and obtain such regulatory approval to directly hold the maximum interest in the OPCO prior to submitting its listing  application, unless the approving regulatory authority  confirms that it will not or cannot give approval even if the listing applicant fulfilled the Other Requirements:

a.       because no procedures or guidance for granting approval are available; or

b.       for policy reasons.

16C

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If clear procedures or guidance from the approving regulatory authority is not available, the listing applicant can directly hold less than the maximum permitted interest in OPCO if it demonstrates to the satisfaction of the Exchange that it has, as advised by its legal advisers, reasonably assessed the requirements under all applicable rules, committed financial and other resources and implemented all the legal adviser’s recommendations prior to submitting its listing application. A mere intent, undertaking or plan to implement such recommendations is not sufficient (Added in April 2018).

17

If non-restricted businesses are involved, the Listing Department will normally refer the case to the Listing Committee.

If there are no limits on foreign ownership, the listing applicant must not use Contractual Arrangements to carry on its business.

22

Following publication of the consultation draft of the new PRC Foreign Investment Law by the Ministry of Commerce in January 2015, concerns over the legality and validity of Structured Contracts to hold interests in PRC businesses which are subject to foreign ownership restrictions may be heightened. Applicants which use Structured Contracts to hold interests in PRC businesses are encouraged to contact the Exchange at the earliest possible opportunity to seek informal and confidential guidance.

Following publication of the consultation draft (the “Draft FIL”) of the new PRC Foreign Investment Law (the “FIL”)  by the Ministry of Commerce in January 2015, concerns  over the legality and validity of Structured Contracts to  hold interests in PRC businesses which are subject to foreign ownership restrictions were heightened. Applicants which use Structured Contracts to hold interests in PRC businesses are encouraged to contact the Exchange in advance to seek informal and confidential guidance on novel issues.

Measures to be adopted, if any

23.    Since there is uncertainty as to the implementation and the wording of the final FIL, a listing applicant with a VIE business in the PRC should seek PRC legal advice and decide what measures to adopt (if any) to mitigate against any potential risk.

24.    Whether or not the listing applicant decides to adopt any measures, it must disclose in the listing document the reasons for taking that approach.

25.    If the listing applicant decides to adopt certain measures, it must also include an appropriate risk factor in the listing document stating that such measures may not be effective since the FIL has not been finalised and requirements under the final FIL may be different from those set out in the Draft FIL.

26.    A listing applicant with a VIE business in the PRC should also include the following disclosure in the listing document (and highlighted in the  “Summary” and “Risk Factors” sections):

a.       Description of the Draft FIL pursuant to our Guidance Letter HKEX-GL86-16 and its promulgation status.

b.       A risk factor (i) explaining that the Draft FIL is currently in draft form only, (ii) cross referring to the description of the Draft FIL; (iii) stating that if the listing applicant cannot comply with the final FIL, if and when it becomes effective, it may be required to dispose of its VIE business  under the Structured Contracts; and (iv) if the listing applicant no longer has a sustainable business after such disposal, the Exchange may delist the listing applicant.

c.        A statement that the  listing  applicant  will  disclose,  as  soon  as  possible: (i) updates of changes to the Draft FIL that will materially  and  adversely affect the listing applicant as and when they occur; and (ii) a clear description and analysis of the final FIL as implemented, specific measures taken by the listing applicant to fully comply with the final FIL  supported by a PRC legal opinion and any material impact of the final FIL on the listing applicant’s operations and financial position.

27.    If the listing document indicates that the listing applicant will acquire or establish a VIE business after listing, then the Exchange will apply the above guidance to the listing applicant.

On-going developments

28.    The Exchange recognizes that the Draft FIL remains subject to change. The Exchange will continue to monitor developments with respect to the FIL and will update this document when appropriate.