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香港联交所VIE指引最新修订解读

作者:李琤 | 文丹微


近日,香港联合交易所有限公司(“香港联交所”)在其官方网站上发布了2018年4月修订后的上市决策文件“HKEX-LD43-3”(“VIE新指引”),该文件是上市申请人以VIE架构方式于香港联交所申请上市所须遵循的指引性文件。此次修订主要集中在“Narrowly Tailored”原则的适用标准及《中华人民共和国外国投资法(草案征求意见稿)》(“外国投资法草案”)涉及的应对措施、风险披露等相关事项。


就香港联交所对VIE架构审核所适用的“Narrowly Tailored”原则,本次修订主要做了如下几方面的更新(具体为第16A、16B、16C及17条):


  • 与之前指引(“原指引”)中将外方股权限制及股权以外的其他资格要求独立区分(如原指引中第16A条表述“For requirements other than the foreign ownership restriction”)的做法不同,VIE新指引看到了二者之间的关联性(如新指引第16B条表述“If the OPCO, as a result of having foreign ownership, is required to obtain approval and fulfill additional eligibility standards”)。

  • 在原指引基础上,VIE新指引进一步强调VIE架构须在外方股权限制范围内采用(无论相关业务大小及重要性),针对外方获得股权需取得批准及满足额外资格要求(“其他规定”)的情况,要求上市申请人必须符合该等其他规定(删除了原指引中未能在上市前完全符合其他规定需进行财务及其他方面资源拨备的规定)。此外,就前述需要获得的批准,VIE新指引要求上市申请人须在提交上市申请前按照外方可持最大权益取得监管批准。


  •  VIE新指引在进一步强调“Narrowly Tailored”原则的同时也明确了两个例外情形,针对第16B条上市申请人须在提交上市申请前按照外方可持最大权益取得监管批准的要求:(1)如果取得了负责审批的监管机关特定确认(即因为(a)没有批准的审批程序或指引或(b)政策原因,即使上市申请人符合其他规定,其亦不会或不能发出批准)可以除外;(2)如果审批机关并无提供明确程序或指引,而上市申请人能够让香港联交所采信其已按照法律顾问的意见在上市申请前合理评估所有适用规则的规定、调拨财务及其他资源并实行法律顾问的所有建议的,则上市申请人可直接持有少于OPCO公司的最大许可权益。需要说明的是,该等例外情形需依赖负责审批的监管机关的确认以及法律顾问的意见(而实务中法律顾问出具意见往往也需要取得监管机关的确认)。


  • 与原指引规定的个案审批制度不同,VIE新指引明确否定了不存在外方股权限制(no limits on foreign ownership)的情形下采用VIE架构,但此处的外方股权限制是否包括外方按照规定可100%持股但需满足其他资格要求的情形,我们理解仍有待在实务中进一步评估。

除了在“Narrowly Tailored”原则的适用上进一步明确外,随着今年全国人大会议在政府工作报告中明确提及了2018年内外国投资法草案的立法目标,VIE新指引也对VIE架构下针对外国投资法草案采取的措施及风险等方面的披露提出了具体要求,相应增加了第23至28条。根据VIE新指引,上市申请人需在征求中国律师意见后决定是否针对外国投资法草案采取相关应对风险的措施并说明理由,同时VIE新指引也对上市文件中有关外国投资法草案内容及相关风险披露、声明内容等作出了具体要求,并表示后续将随着外国投资法草案的进展适时更新。


附:香港联交所上市决策文件“HKEX-LD43-3”20184月修订具体条款对照表


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

/

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.


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