Welcome to the Saudi Arabia focus edition of Law Update.
One of the key markets in the Middle East and North Africa (MENA) that continues to lead from the front is the Kingdom of Saudi Arabia (KSA). As the largest country in the Middle East and the 18th largest economy in the world, the progress KSA continues to make is underpinned by its Vision 2030 that envisions developing the country as an investment powerhouse and hub that ultimately connects Asia, Europe, and Africa. Given Saudi Arabia’s significance to the regional economy, our team of experts have prepared a range of pertinent articles that provide insights into new laws, regulations, and the legal landscape in the Kingdom.
This edition will provide you with an up-to-date guide on matters such as; the framework issued by the Saudi Central Bank on IT governance, the anti-corruption landscape under Vision 2030; we also provide practical tips for dispute avoidance. This is only a snapshot; there are many more articles within the KSA focus section for you to read, which we hope you will find valuable and enjoyable.Read the edition
June – July 2015
This enhances trading activity and boosts the shares’ liquidity.
Dual listing also offers greater access to capital; the ability to tap into different markets at different times; and an opportunity to boost public profile even further than listing shares on a single market.
Over the past months there has been a significant increase in the economic activity between the UAE and Egypt. In March 2015 Orascom Construction Limited, a leading global engineering and construction contractor, listed its shares first on NASDAQ Dubai (”NASDAQ”) and then a day later on the Egyptian Stock Exchange (”EGX”). The shares trade on the EGX in Egyptian Pounds and on NASDAQ in USD.
Whilst there can be benefits to dual listing, companies need to be aware that they will be subjecting themselves to further regulations. Common concerns are:
Below we have set out some key on-going reporting obligations under the EGX and NASDAQ regimes that can serve as a point of reference for companies which are considering a dual listing on EGX and NASDAQ.
Under the NASDAQ regulations, there is a requirement on the business/reporting i.e. publically-listed entity (“PL Company”) to disclose information that is not generally available but which would have a significant impact on price. However, there is no clear requirement to disclose such inside information on the EGX unless it is considered as a material event. EGX further obliges each PL Company to have in place procedures to protect against misuse of insider information.
Despite the lack of an explicit prohibition under the EGX regime that the PL Company disclosed “price-sensitive” information, in practice the overall Egyptian legal framework requires that information that would impact the price of securities be disclosed to the public.
Both regimes are similar in this regard and a PL Company would disclose this information at the same time to both markets.
Both the DFSA and the Egyptian Financial Supervisory Authority (“EFSA”) have prescribed a number of governance-related events that give rise to disclosure obligations.
The NASDAQ market disclosure requirements include disclosure of:
The EFSA market disclosure requirements prescribe public disclosure of the following events concerning the governance of the PL Company:
– PL Company’s Articles of Association;
– Change of auditor during the fiscal year;
– Change of address of headquarters or contact details thereof; and
– Any change to the principal managers;
The governance–related reporting obligations of a PL Company largely overlap between NASDAQ and EGX. Therefore, a disclosure statement prepared for one market, e.g. Board composition changes, maybe used for the other market (for NASDAQ in English and the EGX in Arabic). To the extent possible, in practice a PL Company would adopt the more extensive reporting obligations when reporting to both markets.
In case of NASDAQ, transactions which potentially result in:
Under the EFSA regime, however, disclosure is required if the following circumstances concerning the business of the PL Company arise:
The DFSA have left a lot of discretion to the PL Company allowing it to decide where a disclosure should be made.
The EFSA, however, have been more particular as to what type of events trigger disclosure requirement in terms of the business of the PL Company, e.g. disclosure of any law suits, judgements, decisions that involve the PL Company.
Despite these differences, however, both the DFSA and the EFSA implemented the 5% disclosure triggering threshold that applies if the PL Company makes an investment or incurs a debt.
As stated earlier, in practise the easiest way of ensuring both markets get the same information is to adopt the more stringent requirements in each case and then disclose that information to each market.
As far as the securities of the PL Company go, the following events give raise to a disclosure obligation on NASDAQ:
Under the EFSA regime, however, disclosure is required if the following securities-related circumstances arise:
Upon reading of the above, it may seem that only few securities–related events, mainly concerning dividends, require disclosure on NASDAQ whereas on EGX a PL Company needs to disclose far more share-related events.
This is all organisation and apparent difference. A comprehensive reading of the DFSA rulebook indicates there is a significant overlap between disclosure triggering events.
Some of events treated as “securities-related” under the EFSA regime have been classified as PL Company or Business related under the DFSA Rulebook, arriving at the same outcome, regardless of the apparent discrepancy.
Both NASDAQ and EGX require certain public disclosures to be made when an event affecting interests of the PL Company has taken place.
For instance, the DFSA require that a NASDAQ-listed PL Company file a report of interests held by a Connected Person (as defined under the DFSA regime) and make a market disclosure including details of name/address of the Connected Person, date when the Connected Person acquired interests in the PL Company, the transaction price, amount and class of security. It should also be noted under the DFSA regime that a Director has a material interest in the company if he/she has direct or indirect ownership of investments in the PL Company or any involvement in financial or commercial arrangements of the PL Company.
Under the EFSA regime, the existing shareholders and their Related Parties (as defined in the EGX Listing Rules) of the PL Company shall disclose the purchase of any shares exceeding 5% or any multiple thereof of the PL Company’s share capital and/or the subscription rights. Any existing shareholder who exceeds 25% must disclose its investment plans. The Board members and employees and their Related Parties (as defined in the EGX Listing Rules) of the PL Company shall disclose a purchase of any shares exceeding 3% or any multiple thereof of the PL Company’s share capital and/or the subscription rights. Related party transactions must be pre-approved by the general assembly in advance and disclosed.
In relation to the DFSA requirements, it is important to note that, whilst the obligation to file a Connected Person relates to a person who owns 5% or more of the PL Company, a person who is a director of PL Company is per se, a Connected Person. What this also means that a person who is a director must file a Connected Person Report if they acquire or cease to hold investments in the PL Company. In this case, the 5% threshold does not apply. Likewise, an increase or decrease of 1% of the last level reported will trigger an obligation to lodge a Report. What this means is that a relatively small movement in the holding of a director could trigger an obligation to lodge a report.
In line with international standards, a PL Company is subject to numerous disclosure requirements that concern its financial information.
The DFSA require, amongst others, that a NASDAQ-listed PL Company discloses to the public:
In Egypt, the disclosure requirements concern the following:
Any proposed new issue of securities by the PL Company requires NASDAQ disclosure of the class, number and proposed date of issue and details of the changes to the share capital resulting from the new issue proposed, consideration received.
In Egypt this is the same.
Under the DFSA Rules that an alteration in the share capital of the PL Company will require approval of a majority of shareholders. The DFSA Rules also require that where there is an issue of shares for cash that these shares must be offered to existing shareholders in proportion to their existing holdings, prior to any offer to investors who are not existing shareholders.
Finally, on NASDAQ, in the case of the presentation of any winding-up petition, the making of any winding-up order or the appointment of an administrator, liquidator or the commencement of any proceedings under any applicable insolvency laws in respect of the PL Company or any member of its group; or the passing of any resolution by the PL Company or any member of its group that it be wound up by way of members’ or creditors’ voluntary winding-up, or the occurrence of any event or termination of any period of time which would cause a winding-up, the PL Company is required to make market disclosure of:
It is also important to note that under the DFSA Rules during certain periods of the year, directors and senior management of the company are prevented from dealing in the securities of the company. The restricted periods are from the end of the relevant financial year up to and including the announcement or publication of the annual financial report. In the case of semi-annual reports the close period is from the time of the end of the semi-annual financial period and up to the announcement of the semi-annual financials. The rationale is easy to understand, that is directors will have access to details of the financials of the company prior to the details of the financials being disclosed to the market. It is therefore important that they not be able to trade on the basis of this information. In any event, even if the prohibition was not in place, because of the prohibition on insider dealing, a director would be subject to that prohibition.
A dual listing is often a commercially appealing proposition. It can help get global exposure and boost a company’s profile.
That said, apart from assessing the potential benefits that having shares listed on NASDAQ and the EGX can bring, companies should carefully consider the challenges that the dual listing may create.
Listing shares on more than one market increases initial and ongoing costs associated with the listing as well as liability of the business given the requirement to comply with more than one set of rules and regulations. This requires significant management commitment and time dedication, amongst other challenges. As suggested, one way of meeting these challenges is, to the extent feasible, to disclose on the basis of the more stringent requirements because the PL Company can be sure that it complies with its obligations in both markets. Investors in both markets should be able to make informed investment decisions based on the same information in each market.
Dual listing, however, can be an excellent means to achieving greater commercial success.
As the above indicates, certain reporting obligations overlap so one and the same public disclosure statement may satisfy both NASDAQ and EGX requirements.