根據(jù)港交所的規(guī)定，發(fā)行人在提交IPO上市申請時必須證明其有足夠的業(yè)務運作；即使在成功上市后，足夠的業(yè)務運作仍須予以維持。但如何評估業(yè)務的充足水平？港交所在2024年1月修訂了有關業(yè)務充足水平的指引，并舉出幾個反面案例供參考。

《主板上市規(guī)則》第13.24條規(guī)則和《GEM上市規(guī)則》第17.26條規(guī)則都要求發(fā)行人經(jīng)營的業(yè)務須有足夠的業(yè)務運作并擁有相當價值的資產(chǎn)支持其營運，其證券才得以繼續(xù)上市。由于這要求是一個定性測試，規(guī)則并沒有列明用以證明“足夠”收入、利潤、資產(chǎn)或現(xiàn)金流金額的標準。港交所會依每個案件的具體事實作評估。

反面案例

港交所在最新的指引更新中列載了幾個沒有滿足足夠業(yè)務運作要求的案例，具體如下：

?某上市公司的煤炭貿(mào)易業(yè)務收入僅維持在每年140萬美元的水平，并只來自數(shù)名客戶。該公司在幾年前購入煤礦的采礦權，但因監(jiān)管限制，一直未開始采煤業(yè)務。公司出現(xiàn)重大虧損，總資產(chǎn)為260萬美元，負債凈額達770萬美元。而公司擬改善業(yè)務營運的計劃沒有實際資料支撐。

?某經(jīng)營二手汽車零售業(yè)務的公司在過去五年收入跌近95%。公司出現(xiàn)凈虧損，營運現(xiàn)金流呈負數(shù)，總資產(chǎn)為640萬美元。公司擬停止這項業(yè)務，轉向新品牌汽車的批發(fā)業(yè)務，但公司的汽車批發(fā)業(yè)務經(jīng)營歷史短，客戶群有限。

?某GEM上市公司停止其收入占比高達90%的金屬買賣業(yè)務。公司開展了多項互不相關的新業(yè)務，但業(yè)務量很低。公司過去六個月凈虧損770萬美元，負債凈額達5,100萬美元。

?某公司大幅縮減其原來的時尚飾品業(yè)務，并收購一家從事軟件及應用程式開發(fā)業(yè)務的公司且開始相關業(yè)務。收購所產(chǎn)生的商譽占其總資產(chǎn)3,590萬美元的一半。隨后，整個軟件開發(fā)團隊離職，導致軟件業(yè)務中斷。審計師基于其對商譽帳面值能否恢復的擔憂，出具了對公司財報無法發(fā)表意見的審計報告。

?某公司擬將其主營業(yè)務出售給控股股東，該控股股東再將其所持有該公司的全部股權出售給某投資者。但公司沒能證明余下業(yè)務的可行性和可持續(xù)性。

?某公司擬出售營運其主要業(yè)務的附屬公司的25%權益，并授予買方一項關于收購附屬公司余下75%權益的認購權，但該認購權在出售事項24個月后方可行使。公司的業(yè)務和資產(chǎn)都主要由該附屬公司營運和持有，買方一旦行使認購權，公司即不再持有任何實質(zhì)的業(yè)務營運或資產(chǎn)。

?某公司擬出售占公司總收入和資產(chǎn)70%的建筑業(yè)務，而其去年收購或建立的新業(yè)務在最近一個財政年度只錄得虧損或極少收入。

?某公司在收購一家顧問服務公司不到半年時間，提出出售其占據(jù)著公司的全部收入及純利來源的包裝業(yè)務。該顧問公司的收入在被收購不久前大增超過99%，而大部分增幅均來自同一個客戶。

應用原則

如出現(xiàn)以下情形，港交所可能認定發(fā)行人沒有足夠的業(yè)務營運：

1.上市公司終止或大幅縮減其主營業(yè)務，或主營業(yè)務不斷倒退，而余下業(yè)務不能產(chǎn)生足夠的收入來應付營運成本，公司出現(xiàn)結構性而非暫時性的凈虧損或負營運現(xiàn)金流。

2.另一方面，公司擬收購或開啟新業(yè)務，但新業(yè)務營運歷史短，不能證明其可行且可持續(xù)。

3.一些上市公司繼續(xù)營運其主營業(yè)務只為維持其上市地位，而非真正為發(fā)展相關業(yè)務。令港交所懷疑發(fā)行人是否有實質(zhì)業(yè)務的常見情形包括：業(yè)務進入/退出門檻極低、公司依賴數(shù)目不多的交易或客戶。比如，從事借貸業(yè)務的發(fā)行人只有少數(shù)員工且客戶高度集中；再如，從事訂單貿(mào)易業(yè)務的發(fā)行人僅能提供有限的增值服務。

4.出現(xiàn)財政困難、破產(chǎn)或失去主要營運附屬公司的發(fā)行人也可能不再擁有足夠的業(yè)務營運，尤其在沒有切實的扭轉經(jīng)營計劃的情況下。

港交所的評估過程

在評估上市公司是否有足夠業(yè)務運作時，港交所一般會考慮其業(yè)務模式、業(yè)務性質(zhì)、營運規(guī)模、過往業(yè)績和新業(yè)務、資產(chǎn)構成，以及上市公司是否有轉讓控股權益的提議等因素。

但港交所旗下負責上市決定的團隊所作出的決定可能會被其上市委員會或上市復核委員會推翻。比如，中基長壽科學集團就在2022年7月25日宣布上市復核委員會推翻了上市委員會的決定，后者此前確認了港交所作出的公司不再維持足夠業(yè)務運作的評估結果。但隨后，上市復核委員會認為公司的借貸業(yè)務可持續(xù)，符合足夠的業(yè)務運作要求。

本篇文章僅是對有關題目提供的一般概述，并非旨在成為可依賴的專業(yè)意見。請聯(lián)系我們獲取進一步的具體法律意見。

SEHK’s guidance on sufficiency of operations

A company must showcase its business operations at the time of an IPO, but even after a successful listing it is still required to maintain sufficient operations.  The Stock Exchange of Hong Kong (SEHK) issued its revised guidance, in January 2024, on the principles in assessing sufficiency of operations and gave examples of failure to comply with that requirement.

Rule 13.24 of the Main Board Listing Rules and rule 17.26 of the GEM Listing Rules require a listed company to carry out a business with a sufficient level of operations, and assets of sufficient value, to support its operations in order to warrant the continued listing of its securities. This is a qualitative test, as the rule does not set out any numerical standard of revenue, profit, assets or cashflow to prove “sufficiency”. The SEHK makes assessments based on the specific facts in each case.

Negative examples

The following paragraphs have depicted several examples where the company has failed to satisfy the operation sufficiency requirement:

?A listed company maintained only coal trading with annual revenue of USD1.4 million from a few customers. It had acquired coal mine rights but was prohibited from commencing exploration due to regulatory restrictions. It incurred losses, and had total assets of USD2.6 million and net liabilities of USD7.7 million. Plans to improve business operations lacked details.

?A company engaged in retail sales of second-hand motor vehicles saw its revenue drop by 95% in the past five years. It recorded net losses and negative operating cashflows, with total assets amounting to USD6.4 million. It would cease that business and start wholesale distribution of new branded motor vehicles. However, the company’s wholesale business had a short operating history and limited customer base.

?A GEM-listed company ceased its metal trading business, which accounted for 90% of its revenue. It started a number of new businesses with no correlation with one another, and that involved few activities. The company incurred a net loss of USD7.7 million in the past six months and had net liabilities amounting to USD51 million.

?Having substantially scaled down its original fashion accessories business, a company started a new business via acquisition of a company engaging in software and applications development. Goodwill arising from the acquisition accounted for half of its total assets of USD35.9 million. Subsequently, the entire software development team left the company, resulting in suspension of the new business. The auditor issued a disclaimer of opinion on its financial statements due to concerns over the recoverability of the goodwill.

?A company proposed to dispose of its major business to its controlling shareholder, who would in turn sell his entire stake in the company to an investor. The company failed to demonstrate that the remaining businesses were viable and sustainable.

?A company proposed to sell a 25% interest in its main operating company, and granted an option to the purchaser to acquire the remaining 75% interest 24 months later. As the company’s business operations and assets were primarily carried out and held through the operating company, it would not have any material business operations or assets left once the purchaser exercised its option.

?A company proposed to dispose of its construction sector, which accounted for 70% of its revenue and assets. Its other businesses that were acquired or established within the past year had recorded either a loss or minimal profit in the latest financial year.

?A company acquired an advisory services company, then in less than six months proposed to sell off its packaging sector, which has been accounting for its entire revenue and net profit. The revenue of the advisory services company increased by more than 99% shortly before the acquisition and most of the increase came from one client.

Principles of application

The SEHK is more likely to consider the following circumstances as not having sufficient operations:

1.The core business of the listed company is discontinued, substantially scaled down or deteriorated. The remaining businesses do not generate enough revenue to offset operating costs, resulting in net losses and negative operating cashflow on a structural, rather than temporary, basis.

2.The company proposes to acquire or start a new business with only a short operating history to demonstrate its viability and sustainability.

3.Some listed companies carry on their main operating activities merely to maintain the listing status, rather than genuinely developing such business. Common telltale signs include low barrier of entry/exit and limited number of transactions or customers. These can refer to money lending businesses with only a few employees and high concentration of customers, or trading activities that add little to no value to the company.

4.Companies in financial difficulty, becoming insolvent, or losing their major operating subsidiaries may cease to have sufficient operations, especially in the absence of concrete turnaround plans.

SEHK assessment process

In assessing whether a listed company has sufficient operations, the SEHK will consider factors such as its business model, business nature, operating scale, history of existing and new businesses, asset composition, and whether any transfer of controlling stake is proposed.

Nevertheless, a decision of the SEHK’s listing division may be overturned by its listing committee or the listing review committee.

Zhong Ji Longevity Science Group announced, on 25 July 2022, that the listing review committee overturned the listing committee’s decision, which had confirmed the listing division’s assessment that the company failed to maintain a sufficient level of operations. The listing review committee concluded that the company’s money lending business was sustainable and fulfilled the operations sufficiency requirement.

This material has been prepared for general informational purposes only and is not intended to be relied upon as professional advice. Please refer to your advisors for specific advice.