HKEX Announces Consultation on Proposed Changes to Treasury Share Listing Rules

The Hong Kong Stock Exchange (HKEX) recently published a consultation paper announcing the launch of a two-month consultation on proposed rule amendments to introduce a new treasury share regime, giving issuers greater flexibility in managing their capital structure through the resale of treasury shares.

HKEX is proposing to remove the requirement to cancel repurchased shares under the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the Listing Rules). If such requirement is removed, listed companies will be able to repurchase shares and hold them in treasury for future resale if authorized by the laws of their places of incorporation and their constitutional documents.

It is worth noting that such proposed removal will be accompanied by a framework in the Listing Rules to regulate the resale of treasury shares. The proposed framework will ensure a fair and orderly market and fair and equal treatment of all shareholders on the resale of treasury shares.

HKEX’s proposals apply equally to the Rules Governing the Listing of Securities on GEM.

TREASURY SHARES NOT CURRENTLY PERMITTED IN HONG KONG

Currently, upon a listed issuer repurchasing its own shares, Rule 10.06(5) of the Listing Rules automatically cancels the listing of the repurchased shares and requires the issuer to ensure that the documents of title of the repurchased shares are canceled and destroyed as soon as reasonably practicable following settlement of any such repurchase.

Similarly, the Hong Kong Companies Ordinance requires a Hong Kong incorporated company to cancel repurchased shares. Therefore, both the Listing Rules and the Companies Ordinance presently prevent repurchased shares from being held in treasury for later resale.

The main reasons for such limitation are to

• safeguard against the risk of market manipulation by issuers repeatedly repurchasing and reselling their own shares on the market; and
• prevent insiders from trading in the shares to benefit from nonpublic information about share repurchases and resales of treasury shares.

MOTIVATION BEHIND PROPOSED TREASURY SHARE REGIME

HKEX’s proposals are triggered by the following factors:

Development of Regulatory Framework for Treasury Shares in Hong Kong, Overseas Jurisdictions

Since the rewriting of the Companies Ordinance in 2008, the laws of various jurisdictions have changed to allow companies to hold treasury shares for future resale. As of today, approximately 92% of issuers listed on the exchange are incorporated in overseas jurisdictions (e.g., Bermuda, the Cayman Islands, Singapore) that allow holding and flexibly using treasury shares.

However, due to the Listing Rules’ requirement to cancel repurchased shares that these overseas issuers must follow as a listed company on the HKEX, those overseas issuers are still unable to hold treasury shares despite development in the regulatory framework in their respective place of incorporation.

Meanwhile, the Companies Ordinance in Hong Kong has remained unchanged in this regard since 2008, and listed issuers incorporated in Hong Kong—accounting for the remaining 8%—are still prohibited from holding treasury shares under the Companies Ordinance.

Therefore, HKEX’s proposals seek to address this inconsistency by aligning the Listing Rules with the prevailing regulations in other jurisdictions that permit treasury shares.

Benefits of a Treasury Share Regime

On one hand, HKEX acknowledges that repurchasing shares can serve various purposes for companies, including

• returning cash to shareholders;
• adjusting the debt-to-equity ratio;
• increasing earnings per share or other metrics based on the number of outstanding shares;
• facilitating the exit of shareholders from the company; and
• signaling to the market that its shares are undervalued.

On the other hand, HKEX’s proposals aim at allowing issuers to hold repurchased shares in treasury for subsequent resale when market conditions allow. This provides an alternative means of raising funds through reselling treasury shares in small lots on the market at full market price, rather than placings that involve new shares typically sold at a discount.

As a result, issuers have greater flexibility in adjusting their capital structure quickly, thereby potentially reducing their cost of capital.

HKEX’S PROPOSALS FOR LISTING RULES

We discuss below the key features of the proposed amendments to the Listing Rules relating to treasury shares.

Proposal to Remove Requirement to Cancel Repurchased Shares

HKEX proposes to amend the Listing Rules to remove the requirement to cancel repurchased shares. By doing so, HKEX enables issuers to hold repurchased shares in treasury subject to the laws of their places of incorporation and their articles of association or equivalent constitutional document.

Proposals to Treat Resale of Treasury Shares as New Shares

Since a resale of treasury shares impacts existing shareholders in a similar manner as an issuance of new shares, HKEX proposes to amend the Listing Rules to apply the current requirements for an issuance of new shares to a resale of treasury shares by a listed issuer.

Resale of Treasury Shares to be Conducted on Preemptive Basis or with Shareholders’ Mandate

HKEX proposes that a resale of treasury shares shall

• be subject to preemption similar to an issuance of new shares under the Listing Rules; and
• be offered to all shareholders on a pro rata basis or, alternatively, approved by shareholders under a specific mandate or a general mandate approved in advance by shareholders.

Share Scheme

Under HKEX’s proposal, a share scheme using treasury shares to satisfy share grants would be treated as a share scheme funded by new shares under the Listing Rules.

Other Proposals for Resale of Treasury Shares

HKEX proposes the following additional requirements on resale of treasury sales to ensure the protection of shareholders:

• A resale of treasury shares to a connected person subject to the same connected transaction requirements as an issue of new shares under the Listing Rules
• Requiring issuers to disclose their resale of treasury shares and any movement in the number of treasury shares under different parts of the Listing Rules in relation to announcement, listing document, next-day disclosure return, monthly return, and annual report
• Requiring issuers to comply with the documentary requirements under the Listing Rules for its resale of treasury shares

Risk Mitigation Proposals

Currently, the Securities and Futures Ordinance (SFO) restricts all activities, including any dealings by a listed issuer in its treasury shares, that amount to stock market manipulation and insider dealing. In addition to the SFO’s restriction, HKEX proposes additional requirements to ensure that a fair and orderly market is maintained after the proposed relaxation.

Proposed 30-Day Moratorium Period for Share Repurchases, Resales of Treasury Shares

HKEX proposes to impose a 30-day moratorium period on

• any resale of treasury shares (whether on or off market) after a share repurchase; and
• an on-exchange share repurchase after an on-exchange resale of treasury shares.

The proposed restriction on resale ensures that resales do not take place at a price that has been affected by the issuer’s previous share repurchase. Further, the proposed constraint on on-exchange share repurchase deters issuers from repeatedly repurchasing and reselling their own shares on market to make a trading profit or manipulate the share price.

Dealing Restrictions for Resale of Treasury Shares on the Exchange

HKEX proposes to prohibit a resale of treasury shares on the exchange

• when there is undisclosed inside information;
• during the one-month period preceding a results announcement; or
• if the resale is knowingly made with a core connected person; however, HKEX proposes that an on-market resale of treasury shares to a connected person without knowledge would be fully exempt from the Listing Rules relating to connected transactions.

New Listing Applicants

Under HKEX’s proposals, new listing applicants can retain their treasury shares upon listing but must disclose details of its treasury shares in its prospectus.

HKEX also proposes a lock-up requirement to restrict new listing applicants from reselling their treasury shares or entering into any agreement for resale within six months after listing.

Amendments in Other Parts of the Listing Rules

Voting Rights Attached to Treasury Shares

Despite voting rights attached to treasury shares normally being suspended by laws, HKEX’s proposals make it clear under the Listing Rules that issuers (being holders of treasury shares) should abstain from voting on matters that require shareholders’ approval under the Listing Rules. This would also prevent controlling or substantial shareholders from using treasury shares as a means to consolidate their control of the issuer.

Excluding Treasury Shares in Calculation of Issued Shares

As treasury shares are held by issuers themselves and the rights attached to them are normally suspended by laws, HKEX proposes to exclude treasury shares when calculating an issuer’s issued shares and voting shares for the purposes of determining

• the issuer’s public float;
• the issuer’s market capitalization;
• the equity capital ratio for size test calculation;
• the size limit for issuing or purchasing securities as a percentage of the issued shares;
• a person’s percentage of rights to vote at a general meeting of the issuer; and
• a person’s percentage interest in the issuer.

Disclosure of Issuers’ Intention to Hold Treasury Shares

HKEX proposes to require an issuer to disclose in the explanatory statement its intention as to whether the repurchased shares will be canceled or kept as treasury shares. This would enable shareholders to understand the potential impact of the proposed share repurchases and vote accordingly.

Resale of Treasury Shares through Agents or Nominees

HKEX proposes to clarify that a resale of treasury shares by an issuer or its subsidiary through an agent or nominee would also be subject to the proposals set out in the consultation paper.

CONCLUSION

While affording more flexibility for issuers to hold treasury shares, the HKEX’s proposals also includes several important regulatory safeguards for preventing market manipulation and ensuring fair shareholder treatment.

The comprehensive proposals of the treasury share regime is therefore a positive development in optimizing the attractiveness of Hong Kong’s listed market. The two-month consultation will end on 27 December 2023.