Chapter: 571 Title: SECURITIES AND FUTURES ORDINANCE Gazette Number: L.N. 12 of 2003
Section: 308 Heading: Interpretation of Part XV Version Date: 01/04/2003
PART XV
DISCLOSURE OF INTERESTS
Division 1-Preliminary
(1) In this Part, unless the context otherwise requires-
"associated corporation" (相联法团), in relation to a listed corporation, means a corporation-
(a) which is a subsidiary or holding company of the listed corporation or a subsidiary of the listed corporation's holding company; or
(b) (not being a subsidiary of the listed corporation) in which the listed corporation has an interest in the shares of a class comprised in its share capital exceeding in nominal value one-fifth of the nominal value of the issued shares of that class;
"cash settled equity derivatives" (现金结算股本衍生工具) means equity derivatives other than physically settled equity derivatives;
"chief executive" (最高行政人员) means the person employed or otherwise engaged by a corporation who, either alone or together with one or more persons, is or will be responsible under the immediate authority of the board of directors for the conduct of the business of the corporation;
"contract multiplier" (合约乘数), in relation to a stock futures contract, means the number specified by the recognized exchange company operating the futures market on which the stock futures contract is traded to be the contract multiplier for that stock futures contract under the rules of the recognized exchange company;
"custodian" (保管人) means a corporation the principal business of which is to act as a custodian of securities or other property for another person, whether on trust or by contract;
"deliver" (交付), in relation to any shares or debentures, means deliver the shares or debentures either physically or by electronic means and, in the case of unissued shares, means deliver the shares after they are issued; and "take delivery" (提取) shall be construed accordingly;
"duty of disclosure" (披露责任)-
(a) for the purposes of, and otherwise in relation to, Divisions 2 to 6, means the duty of disclosure arising under section 310 which has to be performed in accordance with section 324; or
(b) for the purposes of, and otherwise in relation to, Divisions 7 to 10, means the duty of disclosure arising under section 341 which has to be performed in accordance with section 347;
"equity derivatives" (股本衍生工具) means any-
(a) rights, options or interests (whether described as units or otherwise) in, or in respect of, underlying shares;
(b) contracts, the purpose or pretended purpose of which is to secure or increase a profit or avoid or reduce a loss, wholly or partly by reference to the price or value, or a change in the price or value, of-
(i) underlying shares; or
(ii) any rights, options or interests referred to in paragraph (a);
(c) rights, options or interests (whether described as units or otherwise) in, or in respect of-
(i) any rights, options or interests referred to in paragraph (a); or
(ii) any contracts referred to in paragraph (b); or
(d) instruments or other documents creating, acknowledging or evidencing any rights, options or interests or any contracts referred to in paragraph (a), (b) or (c), including stock futures contracts, certificates of interest or participation in, temporary or interim certificates for, receipts (including depositary receipts) in respect of, or warrants to subscribe for or purchase-
(i) underlying shares; or
(ii) the rights, options or interests or the contracts,
whether or not-
(i) the rights, options or interests, the contracts or the instruments or documents are traded on a recognized stock market or a recognized futures market;
(ii) the rights, options or interests, the contracts or the instruments or documents are, where the underlying shares are shares in a listed corporation, issued or made available by the listed corporation; or
(iii) the obligations under the rights, options or interests, the contracts or the instruments or documents are settled by payment of cash or by delivery of the underlying shares or otherwise;
"Exchange Company" (交易所公司) means the Exchange Company within the meaning of the repealed Securities (Disclosure of Interests) Ordinance;
"founder" (成立人), in relation to a discretionary trust, means a person who-
(a) has directly or indirectly provided, or undertaken to provide, property for the purpose of the trust; or
(b) has entered into a reciprocal arrangement or understanding (whether having legal effect or not) with another person leading, directly or indirectly, to the creation of the trust, or has procured another person, directly or indirectly, to create the trust,
and whose consent is required as a condition (whether having legal effect or not) to the exercise by any trustee of his discretion in connection with the trust property, or in accordance with whose wishes (whether having legal effect or not) any trustee is accustomed, or would be expected, to act;
"Hong Kong register" (香港登记册), in relation to a listed corporation, means the register of members, or a branch register, of the listed corporation that is kept in Hong Kong;
"inspector" (审查员) means an inspector appointed under section 356 or 357;
"issued equity share capital" (已发行权益股本), in relation to a listed corporation, means the listed corporation's issued share capital of a class the shares in which carry rights to vote in all circumstances at general meetings of the corporation;
"listed" (上市) means listed on a recognized stock market;
"listed corporation" (上市法团) means any corporation which has any of its securities listed;
"notifiable interest" (须具报权益) has the meaning assigned to it by section 311(3);
"notifiable percentage level" (须具报百分率水平) has the meaning assigned to it by section 315(1);
"off-exchange transaction" (场外交易) means any transaction, arrangement or occurrence of an event (other than an on-exchange transaction) under which a person becomes, or ceases to be, interested in shares;
"on-exchange transaction" (场内交易) means any transaction conducted on a recognized stock market or a recognized futures market under which a person becomes, or ceases to be, interested in shares;
"physically settled equity derivatives" (实物结算股本衍生工具) means equity derivatives that are, or are to be, settled by delivery of the underlying shares, including equity derivatives in respect of which the holder, writer or issuer of the equity derivatives may choose to settle by payment of cash or by delivery of the underlying shares;
"qualified lender" (合资格借出人) means a person who is-
(a) an authorized financial institution;
(b) an insurer authorized under the Insurance Companies Ordinance (Cap 41);
(c) an exchange participant of a recognized exchange company;
(d) an intermediary licensed or registered for Type 1 or Type 8 regulated activity; or
(e) a corporation authorized under the law of any place outside Hong Kong recognized for the purposes of section 313(13), 317(6), 323(6) or (7) or 341(5) by the Commission to carry on business-
(i) as a bank;
(ii) as an insurance company; or
(iii) in an activity that is in the opinion of the Commission equivalent to any of the regulated activities carried on by an intermediary referred to in paragraph (d);
"register of directors' and chief executives' interests and short positions" (董事及最高行政人员权益及淡仓登记册) means the register kept under section 352;
"register of interests in shares and short positions" (股份权益及淡仓登记册) means the register kept under section 336 including, except where the context otherwise requires, that part of the register kept under section 337;
"regulations" (规例) means regulations made under section 376;
"relevant event" (有关事件)-
(a) for the purposes of, and otherwise in relation to, Divisions 2 to 6, means-
(i) in a case under section 310(1)(a) or (b) or (4)(a) or (b), the event or change referred to in such section;
(ii) in a case under section 310(2)(a), the event in consequence of which the corporation becomes a listed corporation;
(iii) in a case under section 310(2)(b), the event in consequence of which the listed corporation's share capital of a particular class becomes relevant share capital;
(iv) in a case under section 310(2)(c) or (5), the commencement of this Part; or
(v) in a case under section 310(3) or (6), the taking effect of the regulation providing for the reduction referred to in such section; or
(b) for the purposes of, and otherwise in relation to, Divisions 7 to 10, means-
(i) in a case under section 341(1)(a), (b), (c), (d), (e) or (f), the event referred to in such section;
(ii) in a case under section 341(2)(a), the event in consequence of which the corporation becomes a listed corporation;
(iii) in a case under section 341(2)(b), the commencement of this Part;
(iv) in a case under section 341(2)(c), the event in consequence of which the person becomes a director or chief executive of a listed corporation; or
(v) in a case under section 341(2)(d), the event in consequence of which the corporation becomes an associated corporation of a listed corporation;
"relevant exchange company" (有关交易所公司), in relation to a listed corporation, means the recognized exchange company operating the stock market on which the shares in the listed corporation are listed;
"relevant share capital" (有关股本), in relation to a listed corporation-
(a) means the listed corporation's issued share capital of a class the shares in which carry rights to vote in all circumstances at general meetings of the corporation; and
(b) includes unissued shares in the listed corporation's share capital of a class which, if issued, would carry rights to vote in all circumstances at general meetings of the corporation;
"relevant time" (有关时间) means the time of the occurrence of the relevant event;
"rights issue" (供股) means an offer or issue by a listed corporation of shares in the listed corporation (whether issued or unissued) to all persons holding issued shares in the listed corporation at a certain date (other than a person whose address is in a place where such offer or issue is not permitted under the law of that place) in proportion to the number of those issued shares held by them at that date, but does not include an offer or issue of shares in the listed corporation in lieu of all or part of a cash dividend;
"short position" (淡仓) means the position which a person has-
(a) where the person is the holder, writer or issuer of any equity derivatives, by virtue of which the person-
(i) has a right to require another person to take delivery of the underlying shares of the equity derivatives;
(ii) is under an obligation to deliver the underlying shares of the equity derivatives to another person, if called upon to do so;
(iii) has a right to receive from another person an amount if the price of the underlying shares of the equity derivatives declines; or
(iv) has a right to avoid or reduce a loss if the price of the underlying shares of the equity derivatives declines,
before or on a certain date or within a certain period, whether in any case the right or obligation is conditional or absolute; or
(b) where the person is the borrower of shares under a securities borrowing and lending agreement, by virtue of which the person is under an obligation to deliver shares to another person who has lent shares, if called upon to do so, before or on a certain date or within a certain period, whether or not the obligation to deliver shares is to be settled by payment of cash or by delivery of shares or otherwise;
"specified percentage level" (指明百分率水平) has the meaning assigned to it by section 315(2);
"stock futures contract" (股票期货合约) means a contract which is of a class approved by the Commission as stock futures contracts for trading on a recognized futures market;
"target corporation" (目标法团), in relation to an agreement to which section 317 applies, means the particular listed corporation which is the target corporation for that agreement;
"underlying shares" (相关股份), in relation to any equity derivatives and subject to subsection (5), means-
(a) for the purposes of, and otherwise in relation to, Divisions 2 to 6-
(i) the shares comprised in the relevant share capital of the listed corporation concerned which may be required to be delivered to, or by, the holder, writer or issuer of the equity derivatives on the exercise of rights or fulfilment of obligations under the equity derivatives, whether in any case the rights or obligations are conditional or absolute; or
(ii) the shares comprised in the relevant share capital of the listed corporation concerned by reference to the price or value of which, wholly or partly, the price or value of the equity derivatives is derived or determined; or
(b) for the purposes of, and otherwise in relation to, Divisions 7 to 10-
(i) the shares in the listed corporation concerned, or any associated corporation of the listed corporation, which may be required to be delivered to, or by, the holder, writer or issuer of the equity derivatives on the exercise of rights or fulfilment of obligations under the equity derivatives, whether in any case the rights or obligations are conditional or absolute; or
(ii) the shares in the listed corporation concerned, or any associated corporation of the listed corporation, by reference to the price or value of which, wholly or partly, the price or value of the equity derivatives is derived or determined,
whether in any case those shares are issued or unissued.
(2) The temporary suspension of voting rights in respect of shares comprised in a class of the issued share capital of a listed corporation does not affect the application of this Part in relation to interests in those or any other shares comprised in that class.
(3) In section 317, and also in references elsewhere in this Part to an agreement to which that section applies, "agreement" (协议) includes any agreement or arrangement, and a reference in that section to provisions of an agreement-
(a) accordingly includes a reference to undertakings, expectations or understandings operative under any arrangement; and
(b) (without prejudice to paragraph (a)) also includes a reference to any provisions, whether express or implied and whether absolute or not.
(4) For the purposes of any provision of this Part which provides that an officer of a corporation who is in default is liable to a fine or penalty, the expression "every officer of it who is in default" (其每名违责的高级人员) means every officer of the corporation who knowingly and wilfully authorizes or permits the default, refusal or contravention referred to in that provision.
(5) In the case of equity derivatives-
(a) where-
(i) no less than 5 listed corporations' shares will be required to be delivered on the exercise of rights or fulfilment of obligations under the equity derivatives; and
(ii) at the time of the issue of the equity derivatives, no more than-
(A) subject to sub-subparagraph (B), 30%; or
(B) where any other percentage is prescribed by regulations for the purposes of this subsection, such other percentage,
of the value of all the shares which, but for this subsection, would have been the underlying shares of the equity derivatives is represented by the shares in any one of those listed corporations; or
(b) where-
(i) the prices or values of no less than 5 listed corporations' shares play a part in the derivation or determination of the price or value of the equity derivatives; and
(ii) at the time of the issue of the equity derivatives, no more than-
(A) subject to sub-subparagraph (B), 30%; or
(B) where any other percentage is prescribed by regulations for the purposes of this subsection, such other percentage,
of the price or value of the equity derivatives is derived from or determined by the prices or values of the shares in any one of those listed corporations,
those equity derivatives are taken to have no underlying shares.
(6) In subsection (5), a reference to shares shall be construed as-
(a) for the purposes of, and otherwise in relation to, Divisions 2 to 6, a reference to shares comprised in the relevant share capital of the listed corporation concerned; or
(b) for the purposes of, and otherwise in relation to, Divisions 7 to 10, a reference to shares in the listed corporation concerned.
(7) In subsections (5) and (6), a reference to a listed corporation includes a reference to a corporation that is listed on a specified stock exchange.
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