THE MOFO GUIDE TO COMPLIANCE FOR HONG KONG LISTED COMPANIES MORRISON & FOERSTER 1 COMPLEX MATTERS MADE SIMPLE. DEEP EXPERIENCE. CREATIVE THINKING. PRACTICAL SOLUTIONS. THIS IS MOFO. LEARN MORE AT WWW.MOFO.COM. FOREWORD The completion of a company’s listing on the Hong Kong Stock Exchange brings one intensely regulated process to a close, but is just the beginning of another. Compliance by listed companies with their continuing obligations under the Listing Rules and other regulations is equally demanding, and needs to be managed within fixed time limits and under the glare of public accountability. These continuing obligations are primarily designed to ensure the maintenance of a fair and orderly market in securities, and that all users of the market have simultaneous access to the same information. The MoFo Guide to Compliance for Hong Kong Listed Companies (“Guide”) aims to provide Hong Kong listed companies with a user-friendly guide to these continuing obligations to assist them in successfully fulfilling their responsibilities as listed issuers. While we have tried to make the Guide as informative as possible, please kindly note that it is only an overview of listed issuers’ continuing obligations under the Listing Rules and certain related statutory provisions (excluding the Takeovers Code) as of June 1, 2013 and therefore should not be relied upon as legal advice in any jurisdiction. Because of the generality of the Guide, the information provided in it may not adequately address, or be applicable to, all situations and should not be acted upon without specific legal advice based on the relevant situation. Finally, we also invite you to visit our publications website for our China Capital Markets practice (www.mofo.com/hk-capital-markets), where you will be able to find even more resources, including The MoFo Guide to Hong Kong IPOs and our Hong Kong Capital Markets Quarterly News. If you wish to obtain a free subscription to our Hong Kong Capital Markets Quarterly News, please send an email to [email protected]. We hope that you enjoy the Guide and find it readable, helpful and useful (for details of the terms used, see the Glossary section at the end). Please do not hesitate to contact any of the members of our capital markets team if you have any questions or comments. CONTACTS STEPHEN BIRKETT [email protected] +852 2585 0818 CHARLES CHAU [email protected] +852 2585 0828 MELODY HE-CHEN [email protected] +852 2585 0887 JOHN MOORE [email protected] +852 2585 0869 VEN TAN [email protected] +852 2585 0836 GREGORY WANG [email protected] +852 2585 0856 INSIDE Chapter 1: Corporate Governance 1 Sources 1 Directors 2 Audit and Other Committees 6 Company Secretary 7 Model Code for Securities Transactions by Directors 8 Environmental, Social and Governance Reporting 10 Chapter 2: Key Continuing Obligations 11 Statutory Disclosure Regime 11 Liability under the Securities and Futures Ordinance 18 General Disclosure Obligation under the Listing Rules 18 Announcement, Circular and Disclosure Obligations 20 Board and Shareholder Meetings 24 Disclosure of Share Interests 25 Insider Dealing 29 Issue of Shares 31 Rights Issues and Open Offers 32 Halt, Suspension and Resumption of Trading 33 Share Repurchases 35 Public Float 37 Notifiable and Connected Transactions 38 Mineral Companies 42 Chapter 3: Key Compliance Dates 45 Financial and Monthly Reporting 45 Key Companies Registry Filings for 46 Non-Hong Kong Companies Notice Periods 47 Further Resources 48 Glossary 49 CHAPTER 1 CORPORATE GOVERNANCE A. SOURCES LISTING RULES In addition to any corporate governance requirements arising under the laws of an issuer’s place of incorporation, the Listing Rules require the directors to fulfill fiduciary duties and duties of care, skill and diligence to the standard established under Hong Kong Law. The Listing Rules contain their own specific requirements for not only directors but also authorized representatives (through whom the Exchange principally communicates with the issuer), board committees and the company secretary. CORPORATE GOVERNANCE CODE The Listing Rules also contain a Corporate Governance Code (Appendix 14 to the Listing Rules) providing further requirements and guidance. The Corporate Governance Code sets forth the principles of good corporate governance for a listed issuer to comply with, followed by code provisions and recommended best practices. The code provisions and recommended best practices are not mandatory rules. Deviations from code provisions are acceptable if the issuer considers there are more suitable ways for it to comply with the principles, but it must state in each interim report and annual report whether it has complied with the code provisions for the relevant accounting period and must explain any deviations (this is known as “comply or explain”). The subject matter of the Corporate Governance Code includes directors, remuneration and evaluation, accountability and audit, board delegation and communication with shareholders and the company secretary. Issuers must include in their summary financial reports (if any) and in their annual reports a Corporate Governance Report prepared by the board of directors. There are certain mandatory disclosure requirements (contained in Appendix 14 to the Listing Rules), and any breach of these is regarded as a breach of the Listing Rules. 1 THE MOFO GUIDE to COMPLIANCE FOR HONG KONG LISTED Companies CHAPTER 1 › CORPORATE GOVERNANCE B. DIRECTORS DUTIES The Listing Rules set out the duties that directors owe to their company (Listing Rule 3.08), which are in line with those applicable under Hong Kong law and may be summarized as follows: Description Duty of Skill, Care and • This means the skill, care and diligence that would be exercised by Diligence a reasonably diligent person with: – the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company; and – the general knowledge, skill and experience that the director in fact has. Note: For clarity, this duty is codified in the new CO, which was enacted in 2012 and is expected to come into force in 2014. To Act Honestly, Bona • Directors owe a duty to act in the interests of all of the company’s Fide for the Benefit of shareholders, present and future; the Company • Directors are answerable to the company for the application or misapplication of its assets; and • Full and fair disclosure of a director’s interests in contracts with the company must be provided. To Exercise Their • Directors must not use their powers under the company’s articles Powers for a Proper for a purpose for which they were not intended. Purpose Not to Allow any Actual • Directors must not take personal advantage of the company’s or Potential Conflict opportunities, allow their personal interests to conflict with those of Between Their Duties the company or misapply the company’s assets. as Directors and Their • Secret profits are not permitted. Personal Interests Note: If the director has a material interest in a transaction, he should abstain from voting, even if he has no beneficial interest in the shares of the other company (Listing Rule 13.44). “Material interest” is not defined in the Listing Rules: materiality should be assessed considering all relevant facts and circumstances. But if the director’s interest is the same as all shareholders, such as in approving dividend payments, then he need not abstain from voting. MORRISON & FOERSTER 2 CHAPTER 1 › CORPORATE GOVERNANCE Though directors may delegate their functions, Listing Rule 3.08 clarifies that this does not absolve them from the required levels of skill, care and diligence. Directors do not satisfy these required levels if they pay attention to the issuer’s affairs only at formal meetings. At a minimum, they must take an active interest in the issuer’s affairs and obtain a general understanding of its business, including following up anything untoward that comes to their attention. EVALUATION The Listing Rules require directors to satisfy the Exchange regarding their character, integrity, experience and competence (Listing Rule 3.09). Directors’ conduct at predecessor companies will be taken into account by the Exchange in determining if the directors have met the required standard of competence (Listing Decision LD34-12). THE CORPORATE GOVERNANCE CODE The Corporate Governance Code contains principles, code provisions and recommended best practices regarding the role, leadership and composition of the board, as well as directors’ appointment, responsibilities, information and remuneration. NON-EXECUTIVE DIRECTORS Non-executive directors have the same duties of care and skill and fiduciary duties as executive directors. Non-executive directors should be appointed for a specific term, subject to re-election(Code Provision A.4.1). The functions of non-executive directors should include (Code Provision A.6.2): • participating in board meetings to bring an independent judgement to bear on issues of strategy, policy, performance, accountability, resources, key appointments and standards of conduct; • taking the lead where potential conflicts of interests arise; • serving on the audit, remuneration, nomination and other governance committees, if invited; and • scrutinising the issuer’s performance in achieving agreed corporate goals and objectives, and monitoring performance reporting. INDEPENDENT NON-EXECUTIVE DIRECTORS An issuer must appoint INEDs representing at least one-third of the