2024年上半年，中国境内监管态势继续决定了国内企业在境内外资本市场寻求融资的热情。“稳”和“严”依旧是A股市场的关键词，而这间接引发了境外上市的热度反弹。
2024年前四个月，有35家企业实现A股上市，企业数量和募资额较去年同期都下降50%以上。
与此同时，春节后，A股IPO经历了长达三个月的“零审核”期，直到5月16日，企业的上市和再融资申请才再度开启审议。
监管方面，上半年的A股市场继续强调“稳为基调，严字当头”。“两会”期间，证监会主席吴清提出监管要突出强本强基和严监严管，随后，3月15日，修订后的《首发企业现场检查规定》发布实施，强调“申报即担责”，大幅提高了现场检查比例。
4月12日，新“国九条”，即《国务院关于加强监管防范风险推动资本市场高质量发展的若干意见》发布，聚焦上市公司全链条各环节监管，这是时隔十年，国务院再次以“国九条”形式规范引导资本市场发展。
“国九条”还确定了“1+N”监管体系，即由证监会配套出台若干制度规则：随后，证监会发布了《关于严格执行退市制度的意见》，以及《关于资本市场服务科技企业高水平发展的十六项措施》（“科创16条”）。
在华商律师事务所执行合伙人齐梦林律师看来，“目前的政策调整期是资本市场的自我修复阶段，通过强监管来实现资本市场的更高质量发展”。不过他也坦言，“在监管趋严的情况下，企业对申报A 股IPO 态度更为谨慎、兴趣有所减弱，不过仍然保持着高度关注”。
天元律师事务所合伙人谭清律师则在新规中看到了亮点。他说：“国九条强调：‘提升对新产业新业态新技术的包容性，更好服务科技创新、绿色发展、国资国企改革等国家战略实施和中小企业、民营企业发展壮大，促进新质生产力发展。’科创16条则指出：‘精准识别科技型企业，优先支持突破关键核心技术的科技型企业上市融资。’”
“如上述文件所显示，A股应当重点服务符合新质生产力发展方向、掌握关键核心技术的科技创新企业。在现有监管导向下，新能源、新材料、先进制造、电子信息等战略新兴产业的相关科技企业属于优先鼓励对象，对A股IPO抱有很大兴趣和期待。”他说。
面对上半年资本市场的变化，谭律师表示，“天元团队也在根据客户的实际需求提供服务：其一，针对符合监管导向的科技创新企业上市项目，结合最近颁布的上市最新条件和监管要求，加强各项合规核查，协助企业积极筹备上市申报；其二，对于上市申报存在困难的项目，协助公司处理与现有投资人的回购要求；对于有出售意向的客户，积极寻找潜在买方，为股权出售提供服务”。
而面对客户在当前资本市场状况下仍旧存在的融资寻求，“我们积极协调客户对接长期投资的‘耐心资本’，如政府引导基金、同行业的上市公司等产业投资人；对于A股上市存在一定困难的客户，则协助公司转向寻求港股、美股上市，拓宽融资渠道”，谭律师说。
齐梦林律师告诉ALB，华商资本市场业务团队也在“积极调整业务内容，强化专业学习研讨，将业务进一步深耕细作。在服务模式上，给予企业更多资本市场的可行性参考，包括调整预期，积极拥抱国际资本市场。我们为此举办了多次业务研讨会，共同寻找破局之道”。
其中一类破局方法是协助企业拓宽融资渠道，尤其“借助境外资本市场扩大融资路径”。齐律师说，华商近期就协助客户发行了超过6.7 亿元的离岸人民币债券并在澳交所上市，“项目由华商境内及香港律师团队携手提供服务，已经是华商本年度第二单同类型的债券融资业务”。
此外，近期华商资本市场与证券法律专业委员会还牵头成立了SPAC 上市办公室，“将服务于境内企业多元化的资本市场需求……我们在境外资本市场的布局不局限在港股、美股，也包括新兴资本市场印度、越南等”。
谈到对下半年A股市场的预期，谭清律师指出：“目前，证监会综合考虑二级市场承受能力，实施新股发行的逆周期调节。证监会和交易所已经陆续推出国九条和科创16条的配套改革文件，调整了相关板块上市的申报标准，加强了对上市公司分红、大股东减持等监管，奠定了下一步资本市场发展的制度基础。”
“2024年下半年若二级市场表现平稳，则具备结束逆周期调节的市场基础，有望一定程度上恢复新股发行的原有节奏。”谭律师预期道。
香港资本市场：PIPELINE较同期翻倍
境内监管趋严导致部分企业A股上市受阻，却为香港资本市场带来了更高的活跃度。
李竟弘律师是天元律师事务所的管委会委员，也是天元香港办公室的主管合伙人，他介绍道，近期香港资本市场的变化是从去年8月27日证监会发布《统筹一二级市场平衡优化IPO、再融资监管安排》、提出“阶段性收紧IPO与再融资节奏”开始的：“从去年第三、四季度开始，部分原来A股上市的项目陆续转战香港；今年以来进一步趋严的政策则让更多原本持观望态度的企业下定决心、转到港股。”
“和去年同期相比，市场上正在启动，或准备启动的香港上市项目大幅增加，数量上（比起去年同期）甚至可能翻倍。”李律师说，“这也体现了我们常说的、A股和港股之间的‘跷跷板效应’——A股趋严一些，来港股的公司往往就会增多。”
谈到今年以来热门的上市领域，李律师总结了三类。“一类是A股的‘红黄灯行业’，包括零售消费、物流供应链等。这些企业是在A股明确的限制或者禁止类行业，选择来到香港。”
“第二类是科技和高新制造类的企业。由于科创板的五套标准持续收紧，创业板、主板、甚至新三板的上市要求也在提高，一些具备科创属性的企业，包括无人驾驶、机器人、芯片领域的企业也纷纷来到香港。第三类是不在红黄灯名单中，但却实际上难以通过审核的行业，例如医疗服务、（非学科类）教育、文娱内容等行业的企业。”
虽然市场热度回升，但过去两年中，较差的市场流动性、较高的上市破发率也让发行人对港股保持着较为谨慎的态度。对此，相关机构是否能采取措施，恢复市场对于港股的信心？
在李竟弘律师看来，“可以做的事情很多……例如今年‘两会’期间，香港证监会主席雷添良建议将港股通个人投资者门槛从50万降低至10万元人民币，如果有希望在近期获批，将是极大的利好”。
谈到下半年的港股市场，李律师认为“继续受到A股审批收紧的驱动，港股上市项目的pipeline可能会比现在更好”。
在之前表现较为低迷的香港资本市场，另一个受到关注的话题是私有化——今年以来，第一季度已有多家企业完成私有化退市；维达国际、中国中药、赛生药业、欧舒丹的私有化邀约或进程正在进行中。
李律师表示，目前天元团队也在为一系列私有化和上市公司并购交易提供方案，相关交易机会确实比较活跃。不过他也坦言，“私有化交易较大程度取决于市场情况，通常‘谈的多、成的少’。如果港股持续低迷，促成的交易可能会比较多；如果现在港股复苏的势头持续，很多在谈项目就不一定会继续推进了”。
虽然私有化交易尚未形成市场主流，但李律师对此保持密切关注，并相信其在未来5-10年中会逐渐形成一波浪潮，其背后动因在于“第一代50后、60后企业家逐渐交班，而他们的接班人对于企业发展可能有着不一样的选择……伴随世代交替，私有化和并购机会将逐渐增多”。
美国资本市场：受中小规模企业青睐
港股之外，国内资本市场监管变化也引发了中国企业赴美上市的热潮，这点显著表明在数字之中：2023年，中概股美股上市共48只；今年截止4月底，完成上市数量则已达到23只，此外还有22家企业在证监会走备案进程、46家企业备案完成等待上市，下半年或将迎来中概股美国上市集中期。
睿智咨询是一家提供海外上市红筹和VIE架构搭建、境外投资备案、37号文登记等服务的专业跨境商务咨询公司，睿智咨询CEO王贯达告诉ALB，今年境外上市，尤其美股上市的活跃度的确有较大提升。
这背后的首要原因仍是“A股的红黄灯制度和近期的一系列改革，让国内部分行业企业的上市存在很大不确定性，很多境内优质企业，例如互联网、大消费、科技、生物医药类企业，转而谋求境外上市”。
此外，美股SPAC上市也给中概股提供了一条更简便可行的路径：2023年共有11只中概股通过SPAC方式登陆美股，今年则已有两家完成de-SPAC交易。“SPAC上市周期短、成本可控，我们所服务的依生生物、路特斯，都是以SPAC方式在美股上市的。”王贯达说。
谈及今年赴美上市的热门行业领域，王贯达指出了和赴港上市类似的板块类型，即消费、生物医药、科技、商业服务，以及生活服务。
他分析道：“疫情后消费市场复苏，投资者对消费行业的信心增强，相关企业因此谋求境外上市，例如我们正在为某牛肉面企业、某奶茶企业提供IPO重组服务；生物医药领域虽然因为上市后破发率较高陷入短暂低谷，但行业风口并未完全过去，我们也在接触定制试剂、医疗体检、新药研发等领域企业。”
而在科技、服务领域，王贯达观察到，除了一些已经具备相当体量的企业，这两年，“一些中等体量，甚至小体量企业也在谋求境外上市”，睿智咨询目前服务的客户中就包括某智能充电底层技术公司、某厦门智慧门禁公司、某山东教育服务类公司、某成都教育支付系统公司、两家保险科技类公司、三至四家人力资源服务公司……“可以看到体量较小的公司也有比较强烈的上市和融资需求”。
不过，这背后的驱动因素有所不同，王贯达介绍道：“有的出于创始人的想法；有的背后存在投资人推动；还有的则出于比较被动的原因。”
不难想象，小体量公司对于上市中介机构的费用往往更为敏感，睿智咨询也感受到了明显的竞争压力。但王贯达认为，越是复杂、艰难的资本环境，越需要寻求专业性中介机构的服务，“越应该强调操作的规范性，凡事合规，不给公司埋下不必要的风险”。
“这两年，无论境外的股票交易所，还是境内的证监会、商务发改委、外汇管理局等，对于红筹结构，以及资本项下的外汇监管、境外投资合规的要求都在增加。就在4月12日，国家外汇管理局发布了《资本项目外汇业务指引（2024版）》，可以说这个细分领域正越来越专业化。”王贯达补充道。
因此，对于有境外上市计划的企业，他建议道：“第一，早做谋划；第二，多多洞悉、观察、研究监管趋势和走向；第三，选择更专业的咨询及中介机构作为合作伙伴。”
CHINA CAPITAL MARKETS: A MID-YEAR REVIEW
In the first half of 2024, China's domestic regulatory policies continued to weigh on local companies eager to secure funding from both domestic and international capital markets. The concepts of "stability" and "tightness" are still predominant in the A-share market, which has indirectly led to a renewed interest in overseas listings.
In the first four months of 2024, 35 companies successfully went public on the A-share market, a year-on-year drop of over 50 percent both for the number of companies and the amount of funds raised.
At the same time, after the Lunar New Year, A-share IPOs experienced a three-month period when zero applications were reviewed. It was not until May 16 that review of companies' listing and refinancing applications was reactivated.
In terms of regulation, the first half of the year continues to see the A-share market prioritize "stability and tight regulation.” During the annual Two Sessions, Wu Qing, chairman of the China Securities Regulatory Commission, stated that regulation should focus on strengthening fundamentals and tightening both supervision and administration. Shortly thereafter on Mar. 15, the revised Provisions on On-site Inspection of Enterprises Applying for Initial Public Offering were promulgated for implementation, emphasizing that "making an IPO application means shouldering responsibilities" and significantly increasing the percentage of on-site inspection.
On Apr. 12, the Several Opinions of the State Council on Strengthening Regulation, Guarding against Risks and Promoting High-quality Development of the Capital Market, colloquially known as the new Nine Articles, were released, focusing on regulation over all aspects of a listed company. This is the first time in ten years that the State Council has again opted to guide the development of the capital market by issuing Nine Articles.
The new Nine Articles have also introduced the "1+N” regulatory framework under which the CSRC will issue a slew of supporting rules and regulations. Subsequently, the CSRC promulgated the Opinions on Strictly Enforcing the Delisting System and the Sixteen Measures for the Capital Market to Serve the High-quality Development of Science and Technology Enterprises, also known as the Sixteen Measures.
To Qi Menglin, executive partner of China Commercial Law Firm, "the current policy adjustment period can be seen as a phase of self-repair of the capital market where tight regulation is employed to achieve higher-quality development of the capital market.” However, he also concedes that "with tightening regulation, companies have become more cautious and less interested in applying for A-share IPOs, although they are still closely watching the space."
Tan Qing, partner of Tian Yuan Law Firm, however, sees bright spots in the new regulations. "The Nine Articles emphasize the need to 'increase tolerance of new industries, new business models and new technologies, better serve the implementation of national strategies such as science and technology innovation, green development and State-owned assets and State-owned enterprises reform, as well as the development and growth of small and medium-sized enterprises and private businesses, and promote the development of new productive forces'. Further, the Sixteen Measures highlight the importance of 'accurately identifying technology-oriented companies and prioritizing support to technology-oriented companies that have achieved breakthroughs in key and core technologies to go public to raise funds.'"
"These documents clearly demonstrate that the A-share market should focus on serving technology innovation enterprises that fit the development direction of new productive forces and master key and core technologies. Under the current regulatory stance, tech companies in industries such as new energy, new materials, advanced manufacturing and electronic information are prioritized for encouragement and have shown great interest in and expectations for A-share IPOs," says Tan.
In the face of changes in the capital market in the first half of 2024, Tan says that "the Tian Yuan team is also serving clients based on their actual needs. First, as regards listing projects of technology innovation enterprises that are in line with regulatory directions, our team has been strengthening various compliance inspections and assisting those enterprises to actively prepare for listing applications. Second, as regards projects facing difficulty in listing application, our team assists the affected companies in handling the repurchase requests from existing investors; for clients with the intention to sell, we actively look for potential buyers and offer equity sales services.”
Where clients still wish to raise funds amid the current capital market climate, "we work with clients to link them up with providers of 'patient capital' who have a long-term investment horizon, such as government-guided funds, listed companies in the same industry and other industrial investors. For clients who may face challenges to list on the A-share market, we assist them to seek listing on Hong Kong or U.S. stock market to broaden financing channels," says Tan.
According to Qi, the capital markets team of China Commercial Law Firm is "also actively adjusting service offerings. We would also guide enterprises to adjust expectations, and to embrace the global capital market."
One way is to help companies broaden financing channels, especially by "leveraging overseas capital markets.” Qi shares that the firm has recently assisted a client in issuing offshore RMB bonds worth more than 670 million yuan for listing on Chongwa (Macao) Financial Asset Exchange. "Our Mainland and Hong Kong teams worked together on this project which is already the second bond financing project of the same type that the firm has worked on so far this year."
In addition, the firm's capital market and securities committee has recently taken the lead in setting up a SPAC listing office "which will serve the diversified capital market needs of domestic enterprises... Our coverage of overseas capital markets is not limited to Hong Kong and U.S. stocks, but also includes emerging capital markets such as India, Vietnam, etc."
Speaking of expectations for the A-share market in the second half of the year, Tan points out: "At present, the CSRC is making countercyclical adjustments to new share issuance while comprehensively considering tolerance on the secondary market. Both the CSRC and stock exchanges have rolled out a slew of reform documents to support the Nine Articles and the Sixteen Measures, adjusted the application criteria for listing on relevant boards, and strengthened regulation over matter such as dividend distribution by listed companies and reduction of holdings by major shareholders, which has laid foundation for the development of the capital market in the next stage."
"If the secondary market enjoys stable performance in the second half of 2024, then there will be a market basis for ending countercyclical adjustments, which may potentially serve to restore the original rhythm of IPOs to a certain extent," predicts Tan.
HONG KONG PIPELINE DOUBLES
Tightening regulation at home may have hindered the A-share listing by some companies, but it has brought more activity to the Hong Kong capital markets.
Nan Li is a member of the management committee of Tian Yuan Law Firm as well as managing partner of its Hong Kong office. According to him, recent changes in Hong Kong's capital markets began on Aug. 27 last year when the CSRC issued the document titled Coordinating Arrangements for Balancing the Primary and Secondary Markets, Optimizing IPO and Regulating Refinancing, which puts forward the requirements of "tightening the pace of IPO and refinancing in a phased manner.”
"Beginning in the third and fourth quarters of last year, a number of listing projects originally destined for the A-share market have successively moved to Hong Kong. Further tightening policies since the start of this year have prompted more companies with a wait-and-see attitude to make up their minds and switch to Hong Kong."
"Compared to the same period of last year, the number of Hong Kong listing projects that are underway or are in the pipeline has increased significantly, possibly doubling on a YoY basis. This reflects what we often term as the 'seesaw effect' between A-shares and Hong Kong stocks. If regulation on the A-share market becomes more stringent, more companies will turn to Hong Kong."
Li sums up the popular industries for Hong Kong listing this year in three categories. "The first category is what we call the 'red and yellow light industries' of the A-share market, including retail consumption, logistics and supply chain, etc. These companies choose to come to Hong Kong because they engage in industries where A-share listing is explicitly restricted or prohibited."
"The second category includes technology and high-tech manufacturing companies. As the five sets of criteria for the STAR Market continue to tighten and the requirements for listing on ChiNext, the Main Board and even the New Third Board also become more stringent, some innovation companies, including those in the fields of autonomous driving, robotics and chips, have also turned to Hong Kong. The third category is for industries that are not on the restricted or prohibited list, yet face difficulty in reality to pass IPO application review, such as companies engaging in medical and healthcare services, (non-academic) education, culture and entertainment, etc."
Despite market sentiment picking up, poor market liquidity and high IPO failure rates in the past two years have also caused issuers to remain more cautious towards Hong Kong listing. Can Hong Kong government take measures to restore market confidence?
In Li's view, "a lot can be done... For example, during this year's 'Two Sessions', Tim Lui, chairman of the Securities and Futures Commission of Hong Kong, suggested to lower the threshold for individual investors for the Hong Kong-Mainland Stock Connect Scheme from 500,000 yuan to 100,000 yuan. If this suggestion can be taken up soon, it will be extremely encouraging.”
As to the prospects of the Hong Kong stock market in the second half of the year, Li believes that "driven by continuous tightening of A-share listing approvals, the pipeline of Hong Kong listing projects may be even better than now.”
In the previously sluggish Hong Kong capital markets, another topic that has attracted attention is privatization. Since the beginning of this year, many companies have completed privatization and exited the market in the first quarter, while Vinda International, China Traditional Chinese Medicine Holdings, SciClone Pharmaceuticals and L'Occitane are either soliciting or undergoing privatization.
Li shares that the Tian Yuan team is currently providing solutions for a series of privatization and listed company M&A deals, and there are indeed many opportunities for relevant transactions. However, he also admits that "privatization deals largely depend on market conditions, and there is usually 'a lot of talk but little execution'. If the Hong Kong stock market remains in a slump, more privatization deals may be brokered. However, if the Hong Kong market continues its current recovery momentum, many projects currently in discussion may not go ahead."
Although privatization deals are not yet the mainstay on the market, Li keeps a close watch of this sphere and believes that a wave of privatization will gradually come in the next five to ten years. This is because "the first generation of entrepreneurs born in the 1950s and 1960s will gradually pass the baton to their successors who may have different priorities for developing the businesses... With the changing of the guard, opportunities for privatization and M&As will gradually increase."
SMEs LOOK TO THE U.S.
Apart from Hong Kong, regulatory changes on the domestic capital market have also led to an upsurge in Chinese companies turning to the U.S. markets for listing.
This is clearly borne out by the numbers: in 2023, a total of 48 China concept stocks went public on the U.S. market. In contrast, as of end April this year, 23 China concept stocks have completed U.S. listing, with another 22 pending record-filing with the CSRC and 46 awaiting listing after completing CSRC record-filing. The second half of 2024 may witness a slew of U.S. listing of China concept stocks in quick succession.
Witsus Consulting is a cross-border business consulting company specializing in red chip and VIE design for overseas listing, overseas investment record-filing, Document No. 37 registration and other services. CEO Wang Guanda tells ALB that overseas listing, especially U.S. listing, has indeed been much more active this year.
The primary reason behind the increased activity is still that "the red and yellow light system of the A-share market and a series of recent reform moves have caused great uncertainty to the listing of companies in certain domestic industries. As a result, many high-quality domestic companies, such as those engaging in the Internet, consumer goods, technology and biotech, are turning to overseas listing."
In addition, SPAC listing in the U.S. also provides a simpler and more feasible path for China concept stocks. In 2023, a total of 11 China concept stocks went public on the U.S. market in the form of SPAC, while two have completed de-SPAC deals so far this year. "SPAC listing has a shorter cycle and more controllable cost. Our clients YS Biopharma and EV-sports car maker Lotus both went public on the U.S. market via the SPAC route," says Wang.
In terms of the popular industries for U.S. listing this year, Wang points to sectors similar to those that are seeking listing in Hong Kong, namely consumer goods, biotech, technology, business services and life services.
"Post-pandemic, the consumer market recovered, and investors' confidence increased. Relevant companies are therefore seeking to list overseas. For example, we are advising a beef noodle company and a milk tea company in their IPO restructuring. Although the biotech industry is in a short-term trough due to higher IPO failure rates, growth momentum of the industry has not completely passed. We are also touching base with companies in the fields of customized reagents, medical examinations, and new drug research and development."
In technology and services fields, Wang observes that in addition to some companies that are already of considerable size, in the past two years, "some medium-sized and even small-sized companies are also pursuing overseas listing." For example, Witsus Consulting's current clients include, among others, a company specializing in the underlying technology for smart charging, a Xiamen-based smart access control company, a Shandong-headquartered education services company, an education payment system company based in Chengdu, two insurance technology companies, three to four human resources service companies. "It can be seen that smaller companies also have strong desire for listing and fund-raising."
However, the drivers behind are somewhat different. According to Wang, "some come from founders' ideas; some are driven by investors; and others may be due to more passive reasons."
Naturally smaller companies are often more sensitive to the fees charged by listing intermediaries, and Witsus Consulting has also acutely felt competitive pressure. However, Wang is convinced that the more complex and challenging the capital environment is, the more necessary it is to rely on the services of professional intermediaries. "More emphasis should be placed on compliance in all operations so as not to dig unnecessary holes for companies."
"In the past two years, both overseas stock exchanges and domestic regulators such as the CSRC, the Ministry of Commerce, the National Development and Reform Commission and the State Administration of Foreign Exchange have raised requirements on red chip structure, foreign exchange administration under capital account and overseas investment compliance. With the SAFE promulgating the Guidelines for Capital Account Foreign Exchange Business (2024 Edition) on Apr.12, regulation in this segment is becoming more and more specialized," adds Wang.
He offers three suggestions for companies planning to list overseas. "First, plan early; second, closely watch and observe, and intensively research, regulatory trends and developments; third, partner with more professional advisory and intermediary agencies."
