This client alert discusses a recent disciplinary action taken by the Securities and Futures Commission (SFC) against ICBC International Capital Limited (ICBCI Capital) and ICBC International Securities Limited (ICBCI Securities) (collectively, ICBCI) for their failures in their roles in the initial public offering of Powerlong Real Estate Holdings Limited (Powerlong) in 2009.
ICBCI Capital was one of the joint sponsors and bookrunners, and ICBCI Securities was one of the joint lead managers, in the listing of Powerlong in 2009. The other joint sponsors, bookrunners and lead managers included Macquarie Capital Securities Limited (which is also the sole global coordinator) and Goldman Sachs (Asia) L.L.C..
Powerlong's IPO price was originally set in an indicative range of HK$3.3 to HK$4.9 per offer share, but due to insufficient demand, it lowered the price to HK$2.75.
The SFC investigated into the process adopted by ICBCI in underwriting Powerlong's IPO following an anonymous complaint which alleged that ICBCI Securities procured nominee accounts to subscribe for Powerlong's offer shares and that such subscriptions were financed by Powerlong.
The Placing Guidelines set out in Appendix 6 to the Rules (Listing Rules) Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (Stock Exchange) provide, among other things, that no allocation will be permitted to directors or existing shareholders of the applicant or their associates, whether in their own names or through nominees. As a lead manager, ICBCI Securities was required under Listing Rule 9.11(35) to submit to the Stock Exchange a "Marketing Statement" (Form D), in which it was required to certify that to the best of its knowledge and belief, none of the securities placed by it had been placed with the directors of the issuer or their associates or any existing shareholder of the issuer or any nominee of any of the foregoing.
As a sponsor, ICBCI Capital was required under Listing Rule 9.11(36) to submit to the Stock Exchange a "Sponsor's Declaration" (Form E), in which it was required to declare to the best of its knowledge and belief having made all reasonable enquiries that 25% of the total issued share capital of the applicant had been placed or would be held in the hands of the public in accordance with Listing Rule 8.08 at the time of listing.
Relevant regulatory requirements
The principal regulatory requirements that ICBCI were found to be in breach of include:
- General Principle 2 of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct) - In conducting its business activities, a licensed or registered person should act with due skill, care and diligence, in the best interests of its clients and the integrity of the market; and
- General Principle 4 of the Code of Conduct - A licensed or registered person should seek from its clients information about their financial situation, investment experience and investment objectives relevant to the services to be provided.
Breaches revealed by SFC's investigation
- ICBCI Securities failed to conduct know-your-client (KYC) checks of placees - Some of the placees (Placees) were friends and families introduced by Powerlong. ICBCI Securities considered that ICBCI Capital should have been satisfied with the background of such Placees before referring them to ICBCI Securities, while ICBCI Capital considered that it was ICBCI Securities' responsibility to fulfil the KYC requirements. Further, none of the responsible account executives of ICBCI Securities were aware of either the regulatory requirements or the requirements set out in ICBCI's compliance manual requiring them to obtain clients information about their financial situation, investment experience and investment objectives. As a result, no KYC checks of the Placees were conducted.
- ICBCI Securities failed to perform ongoing scrutiny of transactions in the Placees' accounts - Upon the request of Powerlong, ICBCI Capital informed ICBCI Securities that extensive margin financing would have to be extended to four Placees so that subscriptions under their accounts could be increased to prevent the listing from falling through. Consequently, ICBCI Securities extended margin financing at a ratio of as high as 50% to those four Placees, despite it was apparent that such Placees' subscriptions far exceeded their declared net worth.
- ICBCI Capital and ICBCI Securities turned a blind eye to the lack of independence of the Placees and extended high level of margin financing to them - There were "red-flags" which tend to show that the Placees relied upon Powerlong for financial assistance in their subscriptions, for example, (a) the Placees were referred by Powerlong to ICBCI Capital, (b) Powerlong had been actively involved in updating ICBCI Capital on the size of the Placees' orders, (c) it was apparent that some of the Placees lacked the financial capability to settle their allocations of offer shares; and (d) various telephone recordings between personnel of ICBCI Securities and the Placees / persons contacting personnel of ICBCI Securities on behalf of the Placees indicated, that some of the Placees might be financially dependent on Powerlong and/or its management / controlling shareholders. Nevertheless, none of ICBCI Securities' staff questioned the source of funds of the Placees and high levels of margin financing, which were not generally available to clients in international primary placings, were extended to them. Worst still, in order to circumvent the internal policies, ICBCI Securities' personnel at times advised the Placees to make payment by way of cash or cashier's orders so that the identity of the third party depositor could not be traced. Further, after the sudden increase in the subscriptions of four Placees, a responsible officer of ICBCI Capital suspected that there were issues of independence of some of the Placees and escalated the same to his supervisor, but no follow-up action was taken to ascertain the independence of the Placees.
- ICBCI Capital and ICBCI Securities failed to use reasonable efforts to ensure that submissions to the Stock Exchange were true, accurate and not misleading - At the time of filing of "Marketing Statement" (Form D), ICBCI Securities had not received independence confirmations from all the Placees. In relation to "Sponsor's Declaration" (Form E), ICBCI Capital did not take any steps to ascertain whether the public float requirement under Listing Rule 8.08 had indeed been complied with.
Given the above breaches, the SFC was of the view that ICBCI was guilty of misconduct and/or not a fit and proper person to remain licensed.
The SFC reprimanded and fined ICBCI Capital and ICBCI Securities HK$12.5 million respectively, having taken I nto account ICBCI's otherwise clean record and cooperation with the SFC, as well as ICBCI's commitment to engage a firm of independent reviewers to undertake a comprehensive review of its systems and controls and to implement the recommendations made by the reviewer to the satisfaction of the SFC.
Lesson to be learned
This disciplinary action sends a clear message to investment banks involved in IPOs that while they are performing their functions in making an IPO a success, they should always bear in mind that they also owe an obligation to help ensure the integrity of the market, and failure to do so can attract severe consequences.
The full text of the Statement of Disciplinary Action can be accessed via the link below: http://www.sfc.hk/web/EN/files/ER/PDF/14PR58_s.pdf