Hong Kong Law
Hong Kong Law Issue 131
SFC Extends Implementation Date For New Conflict Of Interest Requirements Governing Research ReportsThe Securities and Futures Commission (SFC) has extended the implementation date of new conflicts-of-interest requirements governing research reports to 31 October 2011. Originally, the amendments to the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission and the Corporate Finance Adviser Code of Conduct were to take effect on 1 September 2011 or, in the case of new listing applications, 1 August 2011. The SFC extended the implementation date in response to market practitioners’ requests for more time to prepare for the changes. The amendments will expand the scope of the existing requirements to:
- cover analysts conducting research on real estate investment trusts;
- cover analysts conducting research on listing applicants;
- cover analysts conducting research on businesses constituted in a form other than a corporation or a real estate investment trust; and
- require sponsors of listing applicants to ensure that all material information disclosed to analysts is included in the listing document.
HKEx Reminds Listed Issuers Of Their Disclosure Obligations In Context Of Recent Market Conditions
IntroductionThe Hong Kong Exchanges and Clearing Ltd. (HKEx or the Exchange) sent a letter to listed issuers on 9 August 2011 reminding them of their obligation to disclose price-sensitive information in a timely manner under the Listing Rules, in the context of recent events in the equity and credit markets. Listed issuers are expected to review whether recent events in the markets have materially affected their financial performance or expected performance and to inform investors of such effects without delay. The Exchange refers to its guidance published in a letter dated 31 October 2008, entitled: “Recent Economic Developments and Disclosure Obligations Of Listed Issuers” (see archive). That letter discussed issuers’ obligations to monitor their financial performance and financial condition continuously, and to update their expectations of performance on a regular basis. The following is a summary of that guidance.
The Primary Disclosure ObligationsUnder Main Board Listing Rule 13.09(1) (or GEM Listing Rule 17.10), issuers are obliged to keep the Exchange, members of the issuer and other holders of their listed securities informed as soon as reasonably practicable of any information relating to the group which:
- is necessary to appraise the position of the group;
- is necessary to avoid the establishment of a false market in its securities; or
- might be reasonably expected to materially affect market activity in and the price of its securities.
Importance Of Timely Disclosure Of InformationInformation should be announced as soon as a decision has been made that the information is potentially price-sensitive. That is a decision as to whether the information has characteristics, in the prevailing market conditions, that would be reasonably expected to materially affect market activity in and the price of the issuer’s securities. In determining whether information is price-sensitive, issuers should take into account that in times of market volatility, the market is more sensitive to information concerning the financial performance and financial condition of listed issuers, their subsidiaries and operations.
Responsibility To The MarketIssuers are responsible to their existing shareholders and also to potential shareholders and the market as a whole. Where those duties conflict, an issuer and its management should give priority to its continuous disclosure obligations to the market as a whole. The two exceptions to this principle are: (i) where specific conditional relief from immediate disclosure is provided by the Listing Rules for transactions and fundraising which is in the course of negotiation or proposals in the course of development; and (ii) where the Exchange grants dispensation from immediate disclosure.
Responsibility For ComplianceCompliance with the disclosure obligations is the responsibility of a listed issuer’s “controlling mind”, which is its directors and any members of senior management to whom responsibility has been delegated. Directors and members of senior management must ensure that they are familiar with the disclosure obligations under Main Board Listing Rule 13.09(1) (or GEM Listing Rule 17.10) and the Exchange’s guidance on the disclosure of price-sensitive information.
Guidance On Particular SituationsThe letter contains guidance on a number of specific disclosure issues. This supplements the guidance previously given in the Exchange’s “Guide on disclosure of price-sensitive information” (see archive) and the Exchange’s announcement on “Clarification of Formal Reporting Requirements for Profit Forecasts by Main Board Issuers and Obligations of Main Board and GEM Issuers on the Release of Price Sensitive Information” (see archive).
Price-Sensitive Information During Preparation of Financial Reports or Other DisclosuresA listed issuer may become aware of price-sensitive information in the course of preparing periodic financial reports or other required disclosure documents such as circulars. The issuer cannot defer releasing the potentially price-sensitive information until the financial report or other disclosure document is issued. Separate disclosure of the price-sensitive information must be made immediately.
Price-Sensitive Information During Negotiations concerning Transactions, Fund Raising or Other ProposalsIf confidential information concerning the issuer is to be released to third parties during negotiations, the issuer must first “filter” and review such material to evaluate whether it contains potentially price-sensitive information. If it does, an announcement should be made immediately. For example, a review of management accounts may reveal financial trends which are potentially price-sensitive and require immediate disclosure. Disclosure of a material change in financial performance cannot be delayed while the negotiations proceed.
Legitimate Delay in DisclosureThe Listing Rules contemplate that an issuer may defer disclosure of transactions or fund-raising activities, if disclosure might prejudice the issuer’s interests in the negotiations. The issuer may also give that information in strict confidence to parties involved in the development of the matter. Delay in disclosure and provision of the information to other parties is only permissible if:
- the issuer can ensure the confidentiality of the information; and
- the delay in disclosure will not cause the establishment of a false market.