聯交所建議提高主板盈利規定

引言

2020年11月27日，香港聯合交易所有限公司（“聯交所”）刊發諮詢文件，誠邀公眾人士對（i）調高聯交所主板上市盈利規定（“建議盈利規定”）；及（ii）推出建議盈利規定的臨時有條件寬限的建議提供意見。聯交所建議，若建議盈利規定被採納，將不早於2021年7月1日生效。

現行盈利規定

根據聯交所證券上市規則（“《上市規則》”）第8.05條，上市申請人若符合（其中包括）（i） 盈利測試；（ii）市值╱收益╱現金流量測試；或（iii）市值╱收益測試，即或可視為符合主板上市資格。

根據現行的盈利測試，上市申請人的股東應佔盈利必須符合以下最低要求：（i）最近一個財政年度不低於2,000萬港元；及（ii）前兩個財政年度累計不低於 3,000 萬港元（“現行盈利規定”）。

修訂盈利規定的理由

現行盈利規定自1994年起引入，及在過去多次公眾諮詢及檢討後一直保持不變。此間，《上市規則》第8.09（2）條的最低市值規定（“市值規定”）自2018年起由2億港元調高至5億港元。

自從市值規定於2018年調高而盈利規定未有相應調高後，聯交所注意到來自上市時市值擬定為7億港元或以下的發行人（“低市值發行人”）的上市申請有所增加，這些低市值發行人僅符合盈利規定的最低要求，但歷史市盈率相較於已上市的同業就相對偏高。

這些低市值發行人通常都通過參考增長潛力來證明其偏高的估值合理，但當中不少在上市後都未能達到上市申請時提交给聯交所的盈利預測，這引起監管機構對其估值合理性的關注，尤其是其估值是否有真正的增長預期所支持，或是僅為了符合2018年修訂的市值規定而倒算所得，以便製造潛在的空殼公司於上市後出售。

我們的觀點

如果建議被採納，我們認為建議盈利規定將矯正現行盈利規定（在 26 年來不曾變動）與修訂後市值規定的脫節，及回應監管機構對主板上市申請人，尤其是低市值發行人整體質量的關注。它還將進一步區分主板和GEM發行人，並可能吸引更多大型公司在主板上市。

但是，建議盈利規定可能不合理地排除從事「新經濟」或高增長行業中在往績記錄期間盈利相對較低的公司在主板上市的機會，即使它們適當地證明公開市場給予偏高的估值是合理的，並預期在上市後有強勁增長。它也令人質疑對實施建議盈利規定是否能有效阻止從事潛在空殼製造活動的上市申請人尋求在主板上市，因為聯交所原則上僅抑制利潤相對較低的低市值發行人進行此類活動，市場上似乎沒有證據證明這些低市值發行人比起那些能夠滿足建議盈利規定的發行人更可能從事潛在空殼製造活動。

此外，香港資本市場的成功很大程度上歸功於其具有多種投資選擇和融資機會的市場經濟體制。全球各地的投資者受他們可以自由選擇投資和出售上市公司股份的資本市場所吸引，只要投資者能有較高的透明度以作出明智的決定。我們預計在實施建議盈利規定後，在主板上市的申請數量將會顯著地減少。 按理說，資本市場投資產品的種類將會變窄，及投資者的投資選擇將更加有限。此外，繼GEM於2017年12月進行改革後，GEM被重新定位為一個“獨立板塊”，並被一些企業和投資者視為是吸引力較低的主板替代方案，因其地位、形象和融資功能都較改革前的「踏腳石」的定位下降，從GEM上市公司的市值和交易量減少就表明了這一點。因此，在GEM重新定位後，將那些具有真正增長潛力但稍微不合資格的發行人重新導向到GEM上市可能對社區中各持份者不利，盈利相對較低的潛在優質發行人可能會因擬議的變更尋求在其他海外市場上市，而經常投資於中小型上市公司的投資者亦可能因此考慮在其他地方進行投資，這無疑會損害香港資本市場的整體吸引力和競爭力。

考慮到許多潛在申請人的財務表現持續受到COVID-19的長期情況和2020年市場低迷的嚴重影響，而引起公衆對在當前市場氣氛下推出建議盈利規定的必要性、重要性和時間性的關注。儘管潛在申請人可能獲得建議盈利規定中盈利分布的臨時寬限，但它僅適用於那些規模相對較大的公司，因為潛在的申請人仍然需要（其中包括）在往績記錄期間獲得1.25億港元或 1.50億港元的總盈利，這仍顯著地高於現行盈利規定。

無論如何，正在考慮在主板上市的潛在申請人應注意建議盈利規定可能對他們的上市資格和當前時間表所產生的潛在影響，無論他們是否能夠依賴擬議的臨時寬 限和過渡安排。

公眾人士可在公眾諮詢期結束之前（即2021年2月1日）提交對建議的回應。

Introduction

On 27 November 2020, The Stock Exchange of Hong Kong Limited (the “Stock Exchange”) published a consultation paper inviting public comments on its proposal to (i) increase the profit requirement for listing on the Main Board of the Stock Exchange (the “Proposed Profit Requirement”); and (ii) introduce temporary conditional relief from the Proposed Profit Requirement. It is proposed that the Proposed Profit Requirement, if adopted, will come into effect no earlier than 1 July 2021.

Current profit requirement

Under Rule 8.05 of the Rules Governing the Listing of Securities on the Stock Exchange (the “Listing Rules”), a listing applicant may be considered qualified for listing on the Main Board by satisfying, among other things, (i) the profit test; (ii) the market capitalisation/revenue/cash flow test; or (iii) the market capitalisation/revenue test.

Under the current profit test, a listing applicant is required to have a minimum amount of profit attributable to shareholders of (i) HK$20 million in the most recent financial year; and (ii) HK$30 million in aggregate in the two preceding financial years (the “Current Profit Requirement”).

Reasons for change of profit requirement

The Current Profit Requirement was first introduced in 1994 and was maintained after several public consultations and reviews in the past. Meanwhile, the minimum market capitalisation requirement (the “Market Capitalisation Requirement”) under Rule 8.09(2) of the Listing Rules was increased from HK$200 million to HK$500 million in 2018.

Since the Market Capitalisation Requirement was increased in 2018 without a corresponding increase in the Current Profit Requirement, the Stock Exchange has noted an increase in listing applications from issuers with a proposed market capitalisation at the time of listing of equal to or less than HK$700 million (“Small Cap Issuer”) that marginally met the Current Profit Requirement but had relatively high historical P/E ratios as compared with those of their listed peers.

Whilst these Small Cap Issuers usually justified their higher valuations by reference to potential growth, a number of them were unable to meet their profit forecasts submitted to the Stock Exchange in their listing applications after listing. It therefore raised the regulatory concerns over the reasonableness of their valuations, in particular, whether their valuations were supported by genuine expectation of growth, or merely reverse engineered to satisfy the Market Capitalisation Requirement amended in 2018 in order to manufacture potential shell companies for sale after listing.

Impacts of the proposed options

Based on the impact analysis performed by the Stock Exchange, if Option 1 and Option 2 were adopted between 2016 and 2019, they would have resulted in 437 (59%) and 486 (65%) out of the 745 Main Board listing applications relying on the Current Profit Requirement submitted during such period being ineligible for listing, respectively. However, it is worth to note that approximately 30% of these ineligible applications under both options had proposed market capitalisation of less than HK$500 million and therefore would not have been eligible for listing under the current Market Capitalisation Requirement.

It is also noted that both Option 1 and Option 2 will result in the Stock Exchange having the highest profit requirement when compared with the profit requirements of selected overseas main markets on an aggregated basis for the three years of a track record period.

Although the Proposed Profit Requirement will largely affect companies at an early development stage or small or mid-sized companies which intend to list on the Main Board, the Stock Exchange noted that these companies may still list on GEM with lower financial eligibility criteria, which in turn further distinguish between issuers listed on GEM and the Main Board and improve the overall quality of Main Board issuers.

Our views

If the proposals are adopted, it is believed that the Proposed Profit Requirement will correct the misalignment of the Current Profit Requirement (which has remained unchanged for the past 26 years) with the revised Market Capitalisation Requirement and address the regulatory concerns regarding the overall quality of Main Board listings, especially for Small Cap Issuers. It will also further differentiate between the Main Board and GEM issuers and may attract more sizeable companies for Main Board listings.

However, the Proposed Profit Requirement may have unjustifiably ruled out the opportunity for companies from the “new economy” or high growth industries which had a relatively lower profit in the track record period to list on the Main Board, even though they appropriately justify a higher valuation given by the public market and expect a strong growth after listing. It also calls into question whether implementing the Proposed Profit Requirement would effectively prevent listing applicants who are engaging in potential shell manufacturing activities from seeking a potential listing on Main Board, as the Stock Exchange principally only inhibits such activities from Small Cap Issuers with relatively lower profit. There seems to be no evidence in the market suggesting that these Small Cap Issuers are more likely to engage in potential shell manufacturing activities than those that are able to satisfy the Proposed Profit Requirement.

In addition, the success of the Hong Kong capital market has been largely attributable to the market economy system with a wide variety of choices of investments as well as funding opportunities. Investors from across the globe were attracted to capital markets in which they have choices to freely invest and divest in the shares of listed companies so long as there is high transparency for the investors to make informed decisions. It is anticipated that after the Proposed Profit Requirement is implemented, the number of listing applications in the Main Board will be significantly reduced. Arguably, the variety of the capital market investment products will be narrowed and investors will have more limited choices of investment. Furthermore, following the reform of GEM in December 2017, GEM has been repositioned as a “stand-alone board” and considered by some businesses and investors as a less attractive alternative to the Main Board with its lowered status, image and financing function as compared to its “stepping stone” position before the reform, as demonstrated by the reduced market value and trading volume of the GEM listed companies. As such, it may be disadvantageous to various stakeholders in the community to redirect those marginally ineligible issuers with genuine growth potentials to seek for listing in GEM after the reposition of GEM. Potential quality issuers with relatively lower profit may as a result of the proposed changes seek for listing in other overseas market and investors who often invest in small and middle cap listed companies may consequently consider to invest elsewhere. In turn, this will undoubtedly undermine the overall attractiveness and competitiveness of the Hong Kong capital market.

Considering that the financial performances of many potential applicants are continuously and severely impacted by the prolonged situation of COVID-19 and market downturn in 2020, it also gives rise to concerns regarding the necessity, prominence and timing to introduce the Proposed Profit Requirement under the current market sentiment. Although potential applicants may be able to benefit from a temporary relief from the profit spread in the Proposed Profit Requirement, it only applies to those relatively sizeable companies as potential applicants are still required to have attained, among others, an aggregate profit of at least HK$125 million or HK$150 million during the track record period, which is still significantly higher than the Current Profit Requirement.

In any event, potential applicants who are considering to apply for listing on the Main Board shall be mindful of the potential impact of the Proposed Profit Requirement that may have on their eligibility and current timetable for listing, regardless of whether they will be able to rely on the proposed temporary relief and transitional arrangements.

Members of the public are invited to submit their responses to the proposals before the public consultation period ends on 1 February 2021.