On March 24, 2021, the SEC adopted interim final amendments to implement the congressionally mandated submission and disclosure requirements of the Holding Foreign Companies Accountable Act (HFCA Act). Following adoption of the HFCA, on July 30, 2021, SEC Chairman Gary Gensler issued a statement warning of risks associated with investing in companies based in China. Although the statement has a different angle, it joins the core continued concerns of the SEC top brass and Nasdaq expressed over the years.
In June 2020 Nasdaq published proposed rules which would make it more difficult for a company to list or continue to list based on the quality of its audit, which could have a direct effect on companies based in China (see HERE). In September 2020, the SEC instituted proceedings as to whether to approve or deny the proposed rule change. As of the date of this blog, the proposal has not been ruled upon by the SEC.
However, the proposal itself together with the HFCA has had a chilling effect on the listings of companies based out of China and is expected to continue to do so. The chilling effect has not been nominal. In discussions with colleagues with a strong China-based clientele, the focus now is on alternatives to U.S. listings.
Back in April 2020, former SEC Chairman Jay Clayton and a group of senior SEC and PCAOB officials issued a joint statement warning about the risks of investing in emerging markets, especially China, including companies from those markets that are accessing the U.S. capital markets (see HERE). Before that, in December 2018, Chair Clayton, SEC Chief Accountant Wes Bricker and PCAOB Chairman William D. Duhnke III issued a similar cautionary statement, also focusing on China (see HERE).
Holding Foreign Companies Accountable Act
The Holding Foreign Companies Accountable Act (HFCA), adopted December 18, 2020, requires foreign owned issuers to certify that the PCAOB has been able to audit specified reports and inspect their audit firm within the last three years. If the PCAOB is unable to inspect the issuer’s public accounting firm for three consecutive years, the issuer’s securities are banned from trading on a national exchange or through other methods.
The HFCA requires that the SEC identify each “covered issuer” that has retained a registered public accounting firm to issue an audit report where that firm has a branch or office located in a foreign jurisdiction, and the PCAOB has determined that it is unable to inspect or investigate completely because of a position taken by an authority in the foreign jurisdiction.
To implement compliance with the requirements of the HFCA, the SEC has adopted final interim rules. The rules apply to covered companies that the SEC identifies as having filed an annual report on Forms 10-K, 20-F, 40-F or N-CSR with an audit report issued by a registered public accounting firm that is located in a foreign jurisdiction and that the PCAOB has determined it is unable to inspect or investigate completely because of a position taken by an authority in that jurisdiction.
The SEC rules are requiring identified companies to submit documentation to the SEC, on or before its annual report due date, establishing that it is not owned or controlled by a governmental entity in that foreign jurisdiction. The company will also be required to include disclosure in its annual report regarding the audit arrangements of, and governmental influence on the company. If the company is identified by the SEC (“Commission-Identified Issuers”) for three consecutive years, the SEC will prohibit trading of the company’s securities. The SEC is still considering how to implement the trading prohibition requirement.
Further Commission-Identified Issuers must disclose for each non-inspection year:
- Identifying the registered accounting firm that prepared an audit report;
- the percentage of shares owned by governmental entities where the issuer is incorporated;
- whether these governmental entities have a controlling financial interest;
- information related to any board members who are officials of the Chinese Communist Party; and
- whether the articles of incorporation of the issuer contain any charter of the Chinese Communist Party.
The HFCA requires the SEC to adopt rules within 90 days and, as such, it has adopted the interim final rules but is also seeking comment on potential changes or modifications to the interim rules.
Gary Gensler’s Statement
Chairman Gensler’s July 30, 2021, statement focuses on the Republic of China’s new guidance placing restrictions on China-based companies’ offshore capital raising efforts, including through offshore shell companies. To help enforce and monitor the new restrictions, China as development government-led cybersecurity reviews of certain companies raising capital through offshore entities.
China has always placed restrictions on foreign ownership of China entities and prohibited direct listing on exchanges outside of China. A work-around developed many years ago, whereby the China-based operating company establishes an offshore shell company in a foreign jurisdiction, most commonly the Cayman Islands, to raise capital and issue stock to public shareholders. In the U.S. it is generally that Cayman Island entity, that lists on a national stock exchange. The shell company enters into service and other contracts with the China-based operating entity such that the monetary substance of the operations flows through the Cayman Island shell company. Even though the Cayman Island entity does not have any direct ownership in the China-based operations, it is able to consolidate financial statements as it has the monetary benefit. The entire structure is known as a Variable Interest Entity (VIE).
Although the structure is common, and as mentioned, the vast majority of China based public companies are actually set up in a VIE structure, Chair Gensler, rightfully felt it necessary to explain the structure and associated risks. The fact is that neither the U.S. stockholders/investors nor the offshore shell company (VIE entity) have any direct ownership in the China based operating entity. They derive all rights and benefits through contractual arrangements. Gensler states, “I worry that average investors may not realize that they hold stock in a shell company rather than a China-based operating company.”
In light of the recent developments in China and the overall risks with the China-based VIE structure, Chair Gensler has asked SEC staff to seek certain disclosures from offshore companies associated with China-based operating companies before their registration statements will be declared effective. In particular, he has asked staff to ensure that these issuers prominently and clearly disclose:
- That investors are not buying shares of a China-based operating company but instead are buying shares of a shell company issuer that maintains service agreements with the associated operating company. Thus, the business description of the issuer should clearly distinguish the description of the shell company’s management services from the description of the China-based operating company;
- That the China-based operating company, the shell company issuer, and investors face uncertainty about future actions by the government of China that could significantly affect the operating company’s financial performance and the enforceability of the contractual arrangements; and
- Detailed financial information, including quantitative metrics, so that investors can understand the financial relationship between the VIE and the issuer.
Additionally, for all China-based operating companies seeking to register securities with the SEC, either directly or through a shell company, Chair Gensler has asked the SEC staff to ensure that these issuers prominently and clearly disclose:
- Whether the operating company and the issuer, when applicable, received or were denied permission from Chinese authorities to list on U.S. exchanges; the risks that such approval could be denied or rescinded; and a duty to disclose if approval was rescinded; and
- That the Holding Foreign Companies Accountable Act, which requires that the PCAOB be permitted to inspect the issuer’s public accounting firm within three years, may result in the delisting of the operating company in the future if the PCAOB is unable to inspect the firm.
Finally, Chair Gensler has asked the SEC staff to engage in targeted additional reviews of filings for companies with significant China-based operations.
Refresher on Nasdaq Proposed Rule Changes
On June 2, 2020, the Nasdaq Stock Market filed a proposed rule change to amend IM-5101-1, the rule which allows Nasdaq to use its discretionary authority to deny listing or continued listing to a company. The rule currently provides that Nasdaq may use its authority to deny listing or continued listing to a company when an individual with a history of regulatory misconduct is associated with that company. The rule sets out a variety of factors that may be considered by the exchange in making a determination. I’ve detailed the current rule below.
The proposed rule change will add discretionary authority to deny listing or continued listing or to apply additional or more stringent criteria to an applicant based on considerations surrounding a company’s auditor or when a company’s business is principally administered in a jurisdiction that is a “restrictive market.” The proposed rule change is meant to codify Nasdaq’s current interpretation of its discretionary authority to provide clarity to the marketplace on its position related to the importance of quality audits.
Nasdaq’s listing requirements are designed to ensure that a company is prepared for the reporting and administrative requirements of being a public company, to provide for transparency and the protection of investors, and to ensure sufficient investor interest to support a liquid market. Rule 5101 describes Nasdaq’s broad discretionary authority over the initial and continued listing of securities on Nasdaq in order to maintain the quality of and public confidence in the market, to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to protect investors and the public interest.
Part of both the general federal securities laws and Nasdaq requirements relate to properly completed audits by an independent auditor. Investors need to be able to rely on the audit report to gain confidence that the financial statements are properly completed and free of material misstatements due to mistakes or fraud. For more on the requirements for an audit report, see HERE.
Auditors are subject to oversight by both the SEC and PCAOB. PCAOB inspections are designed to, among other things, identify deficiencies in audits and/or quality control procedures. Investigations can lead to the audited public company having to revise and refile its financial statements or its assessment of the effectiveness of its internal control over financial reporting. In addition, through the quality control remediation portion of the inspection process, inspected firms identify and implement practices and procedures to improve future audit quality. Accordingly, Nasdaq relies on auditors and the PCAOB oversight to maintain audit integrity.
Citing the recent joint public statement by SEC Chair Clayton, SEC Chief Accountant Sagar Teotia, SEC Division of Corporation Finance Director William Hinman, SEC Division of Investment Management Director Dalia Blass, and PCAOB Chairman William D. Duhnke III (see HERE), Nasdaq notes that audit work and the practices of auditors in certain countries, cannot be effectively reviewed or subject to the usual oversight. Those countries currently include Belgium, France, China and Hong Kong.
Currently, Nasdaq may rely upon its broad authority provided under Rule 5101 to deny initial or continued listing or to apply additional and more stringent criteria when the auditor of an applicant or a Nasdaq-listed company: (i) has not been subject to an inspection by the PCAOB, (ii) is an auditor that the PCAOB cannot inspect, or (iii) otherwise does not demonstrate sufficient resources, geographic reach or experience as it relates to the company’s audit, including in circumstances where a PCAOB inspection has uncovered significant deficiencies in the auditors’ conduct in other audits or in its system of quality controls. The proposed rule change is meant to codify the existing rights of Nasdaq in that regard.
The proposed rule change would add a new paragraph (b) to IM-5101-1 detailing factors that Nasdaq will consider including:
(i) whether the auditor has been subject to PCAOB inspection including due to the audit firm being located in a jurisdiction that limits the PCAOB’s inspection ability;
(ii) if the auditor has been inspected, whether the results of the inspection indicate the auditor has failed to respond to inquiries or requests by the PCAOB or that the inspection revealed significant deficiencies in the auditors’ conduct in other audits or in its system of quality controls;
(iii) whether the auditor can demonstrate that it has adequate personnel in offices participating in the audit with expertise in applying U.S. GAAP, GAAS or IFRS, in the company’s industry;
(iv) whether the auditor’s training program for personnel participating in the company’s audit is adequate;
(v) for non-U.S. auditors, whether the auditor is part of a global network or other affiliation of auditors where the auditors draw on globally common technologies, tools, methodologies, training and quality assurance monitoring; and
(vi) whether the auditor can demonstrate to Nasdaq sufficient resources, geographic reach or experience as it relates to the company’s audit.
An auditor would not necessarily have to satisfy each of the factors, but rather Nasdaq will consider all facts and circumstances, and may impose additional or more stringent criteria to mitigate concerns. Additional criteria could include: (i) higher equity, assets, earnings or liquidity measures; (ii) that an offering be completed on a firm commitment basis (as opposed to best efforts); (iii) lock-ups for officers, directors or other insiders; (iv) higher float percentage or market value of unrestricted publicly held shares; or (v) higher average OTC trading volume before an uplisting.
The proposed rule change would also add a new subparagraph (c) to IM-5101-1 to confirm Nasdaq’s ability to impose additional or more stringent criteria in other circumstances, including when a company’s business is principally administered in a jurisdiction that Nasdaq determines to have secrecy laws, blocking statutes, national security laws or other laws or regulations restricting access to information by regulators of U.S.-listed companies in such jurisdiction (a “Restrictive Market”). In determining whether a company’s business is principally administered in a Restrictive Market, Nasdaq may consider the geographic locations of the company’s: (i) principal business segments, operations or assets; (ii) board and shareholders’ meetings; (iii) headquarters or principal executive offices; (iv) senior management and employees; and (v) books and records.
In the event that Nasdaq relies on its discretionary authority and determines to deny the initial or continued listing of a company, it would issue a denial or delisting letter to the company that will inform the company of the factual basis for the Nasdaq’s determination and its right for review of the decision.
Current Rule IM-5101-1
Nasdaq may use its authority under Rule 5101 to deny initial or continued listing to a company when an individual with a history of regulatory misconduct is associated with the company. Such individuals are typically an officer, director, substantial shareholder, or consultant to the company. In making this determination, Nasdaq will consider a variety of factors, including:
(i) the nature and severity of the conduct, taking into consideration the length of time since the conduct occurred;
(ii) whether the conduct involved fraud or dishonesty;
(iii) whether the conduct was securities-related;
(iv) whether the investing public was involved;
(v) how the individual has been employed since the violative conduct;
(vi) whether there are continuing sanctions (either criminal or civil) against the individual;
(vii) whether the individual made restitution;
(viii) whether the company has taken effective remedial action; and
(ix) the totality of the individual’s relationship with the company including their current or proposed position, current or proposed scope of authority, responsibility for financial accounting or reporting and equity interest.
Nasdaq may also exercise its discretionary authority with a company filed for bankruptcy, when its auditor issues a disclaimer opinion or when financial statements do not contain a required certification.
Where concerns are raised, Nasdaq will consider remedial measures by the company including the individual’s resignation, divestiture of stock holdings, termination of contractual arrangements or the creation of a voting trust to vote their shares. Nasdaq will also consider past corporate governance.
Nasdaq may impose restrictions or heightened listing requirements where concerns are raised, but may not allow for exceptions or lower standards to the listing rules. In the event that Nasdaq staff denies initial or continued listing based on such public interest considerations, the company may seek review of that determination through the procedures set forth in the Rule 5800 Series. On consideration of such appeal, a listing qualifications panel comprised of persons independent of Nasdaq may accept, reject or modify the staff’s recommendations by imposing conditions.