COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - CHAPTER 32L COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - LONG TITLE Empowering section VerDate:11/05/2001 (Cap 32, sections 38A and 342A) [11 May 2001] (L.N. 76 of 2001) COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 1 (Omitted as spent) VerDate:11/05/2001 (Omitted as spent) COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 2 Interpretation VerDate:01/04/2003 In this Notice- "GEM" (創業板) means the recognized stock market called the Growth Enterprise Market; "listing rules" (《上市規則》) means the rules made under section 23 of the Securities and Futures Ordinance (Cap 571) by a recognized exchange company that governs the listing of securities on a stock market it operates. (5 of 2002 s. 407) "GEM" (創業板) "listing rules" (《上市規則》) COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 3 (Repealed L.N. 181 of 2004) VerDate:07/01/2005 COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 4 Exemptions from bilingual prospectus requirements VerDate:01/04/2003 (1) Where- (a) it is proposed to offer any shares in or debentures of a company incorporated under the Ordinance by a prospectus issued generally; and (b) the shares or debentures have been approved by a recognized exchange company for listing on a stock market it operates, (5 of 2002 s. 407) then, subject to the conditions specified in subsection (3), the prospectus is exempted from compliance with the requirements of section 38(1) of the Ordinance to the extent that it does not have to be in the English language and contain a Chinese translation, or to be in the Chinese language and contain an English translation, as the case may be. (2) Where- (a) it is proposed to offer any shares in or debentures of a company incorporated outside Hong Kong by a prospectus issued generally; and (b) the shares or debentures have been approved by a recognized exchange company for listing on a stock market it operates, (5 of 2002 s. 407) then, subject to the conditions specified in subsection (3), the prospectus is exempted from compliance with the requirements of section 342(1)(b) of the Ordinance to the extent that it does not have to be in the English language and contain a Chinese translation, or to be in the Chinese language and contain an English translation, as the case may be. (3) The conditions referred to in subsections (1) and (2) are that- (a) the company must be a new applicant in the context of the listing rules applicable to the stock market referred to in subsection (1)(b) or (2)(b), as the case may be; and (5 of 2002 s. 407) (b) copies of the prospectus in the English language and of its Chinese translation, or copies of the prospectus in the Chinese language and of its English translation, as the case may be, must be made available to the public at the same time at each place where the prospectus is distributed by or on behalf of the company. (4) For the purposes of subsections (1) and (2), the exemption in respect of sections 38(1) and 342(1)(b) of the Ordinance under this section has no effect with regard to the requirements of the Third Schedule to the Ordinance. COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 5 Exemptions for GEM companies VerDate:01/04/2003 (1) Where- (a) it is proposed to offer any shares in or debentures of a company incorporated under the Ordinance by a prospectus issued generally; and (b) the shares or debentures have been approved by the recognized exchange company that operates GEM for listing on GEM, (5 of 2002 s. 407) the prospectus is exempted from compliance with the requirements of section 38(1) of the Ordinance, in relation to paragraphs 27 and 31 and, if applicable, paragraphs 32 and 33 of the Third Schedule to the Ordinance, if it complies with the requirements of those paragraphs as modified by subsection (3). (2) Where- (a) it is proposed to offer any shares in or debentures of a company incorporated outside Hong Kong by a prospectus issued generally; and (b) the shares or debentures have been approved by the recognized exchange company that operates GEM for listing on GEM, (5 of 2002 s. 407) the prospectus is exempted from compliance with the requirements of section 342(1)(b) of the Ordinance, in relation to paragraphs 27 and 31 and, if applicable, paragraphs 32 and 33 of the Third Schedule to the Ordinance, if it complies with the requirements of those paragraphs as modified by subsection (3). (3) For the purposes of subsections (1) and (2), paragraphs 27, 31, 32 and 33 of the Third Schedule to the Ordinance are modified so that for any reference to "3 preceding years", "3 financial years" and "3 years" in those paragraphs, there is substituted a reference to "2 preceding years", "2 financial years" and "2 years" respectively. COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 6 Exemptions for valuation of operating leases VerDate:01/04/2003 (1) Where- (a) it is proposed to offer any shares in or debentures of a company incorporated under the Ordinance by a prospectus issued generally; and (b) the shares or debentures have been approved by a recognized exchange company for listing on a stock market it operates, (5 of 2002 s. 407) then, subject to the conditions specified in subsection (3), the prospectus is exempted from compliance with the requirements of section 38(1) of the Ordinance, in relation to paragraph 34(2) of the Third Schedule to the Ordinance, with respect to any interest of the company, or any of its subsidiaries, in land or buildings as a lessee under an operating lease. (2) Where- (a) it is proposed to offer any shares in or debentures of a company incorporated outside Hong Kong by a prospectus issued generally; and (b) the shares or debentures have been approved by a recognized exchange company for listing on a stock market it operates, (5 of 2002 s. 407) then, subject to the conditions specified in subsection (3), the prospectus is exempted from compliance with the requirements of section 342(1)(b) of the Ordinance, in relation to paragraph 34(2) of the Third Schedule to the Ordinance, with respect to any interest of the company, or any of its subsidiaries, in land or buildings as a lessee under an operating lease. (3) The conditions referred to in subsections (1) and (2) are that- (a) the value of the interest of the company, or any of its subsidiaries, in the land or buildings has been determined by an independent qualified valuer as required by the listing rules applicable to the stock market referred to in subsection (1)(b) or (2)(b), as the case may be; (5 of 2002 s. 407) (b) the value of the interest so determined is zero; (c) a report of the valuer setting out the particulars required by paragraph 34(2) of the Third Schedule to the Ordinance- (i) has been made available to the recognized exchange company referred to in subsection (1)(b) or (2)(b), as the case may be before the prospectus is issued; and (5 of 2002 s. 407) (ii) is referred to in the prospectus and made available to the public for inspection; and (d) a summary of all interests of the company and its subsidiaries in the land or buildings covered by the exemption is included in the prospectus. (4) In this section- "operating lease" (營運租約) means a lease under which an interest in land or buildings is leased, and- (a) the lease confers on the lessee no unilateral right to transfer, sublet, mortgage or otherwise dispose of the interest without the consent of the lessor; (b) the term of the lease is for a period substantially less than the estimated useful economic life of the land or buildings; and (c) the substantive risks and rewards of ownership of the land or buildings have not been, and are not proposed to be, transferred from the lessor to the lessee. "operating lease" (營運租約) COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 7 (Repealed L.N. 181 of 2004) VerDate:07/01/2005 COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 8 Exemptions for prospectuses relating to offers of debentures not proposed to be listed VerDate:23/05/2003 (1) Where- (a) it is proposed to offer any debentures of a company incorporated under the Ordinance by a prospectus issued generally; and (b) the debentures will not be listed on a recognized stock market, then, subject to subsection (3), the prospectus is exempted from compliance with the requirements of section 38(1) of the Ordinance, in relation to paragraphs 4, 5, 12(1), 13, 14, 15, 16, 19, 22, 26(b), 31 and 45 of the Third Schedule to the Ordinance. (2) Where- (a) it is proposed to offer any debentures of a company incorporated outside Hong Kong by a prospectus issued generally; and (b) the debentures will not be listed on a recognized stock market, then, subject to subsection (3), the prospectus is exempted from compliance with the requirements of section 342(1)(b) of the Ordinance, in relation to paragraphs 4, 5, 12(1), 13, 14, 15, 16, 19, 22, 26(b), 31 and 45 of the Third Schedule to the Ordinance. (3) For the purposes of subsections (1) and (2)- (a) the exemption in relation to paragraph 12(1) of the Third Schedule to the Ordinance shall not have effect with respect to that part of paragraph 12(1)(c) of that Schedule concerning short particulars of any transaction relating to the property completed within the 2 preceding years in which any person who is, or was at the time of the transaction, a promoter or a director or proposed director of the company concerned had any interest direct or indirect; (b) the exemption in relation to paragraph 31 of the Third Schedule to the Ordinance shall have effect subject to the condition that there are set out in the prospectus- (i) the auditor's report and the audited financial statements of the company and of any guarantor corporation referred to in the prospectus for the 2 financial years immediately preceding the issue of the prospectus; or (ii) if the auditor's report or the audited financial statements of either the company or such guarantor corporation for the financial year immediately preceding the issue of the prospectus are not available at the time of the issue of the prospectus, a statement of that fact and the auditor's report and the audited financial statements of the company and of any such guarantor corporation for the 2 financial years immediately preceding that financial year, and, if no accounts have been made up in respect of any part of the period of 2 years ending on a date 3 months before the issue of the prospectus, a statement of that fact; and (c) the exemption in relation to paragraph 45 of the Third Schedule to the Ordinance shall have effect only for the purposes of the interpretation of paragraph 6 of that Schedule and subject to the condition that the business address of the natural person in question is disclosed in substitution for the place of his usual residence. (L.N. 85 of 2003) COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 9 Exemptions for prospectuses relating to offers of debentures proposed to be listed VerDate:23/05/2003 (1) Where- (a) it is proposed to offer any debentures of a company incorporated under the Ordinance by a prospectus issued generally; (b) the debentures have been approved by a recognized exchange company for listing on a stock market it operates; and (c) the debentures constitute debt securities and are regulated as such under the relevant listing rules, then- (d) subject to subsection (3)(a) and (c), the prospectus is exempted from compliance with the requirements of section 38(1) of the Ordinance, in relation to paragraphs 4, 5, 12(1), 13, 14, 15, 16, 19, 22, 26(b) and 45 of the Third Schedule to the Ordinance; and (e) subject to subsection (3)(b) and the condition specified in subsection (4), the prospectus is exempted from compliance with the requirements of section 38(1) of the Ordinance, in relation to paragraphs 1, 2, 8, 10, 11, 18, 23, 24, 25, 26(a) and (c), 27, 29, 30, 31, 32, 33(1) and 43 of the Third Schedule to the Ordinance. (2) Where- (a) it is proposed to offer any debentures of a company incorporated outside Hong Kong by a prospectus issued generally; (b) the debentures have been approved by a recognized exchange company for listing on a stock market it operates; and (c) the debentures constitute debt securities and are regulated as such under the relevant listing rules, then- (d) subject to subsection (3)(a) and (c), the prospectus is exempted from compliance with the requirements of section 342(1)(b) of the Ordinance, in relation to paragraphs 4, 5, 12(1), 13, 14, 15, 16, 19, 22, 26(b) and 45 of the Third Schedule to the Ordinance; and (e) subject to subsection (3)(b) and the condition specified in subsection (4), the prospectus is exempted from compliance with the requirements of section 342(1)(b) of the Ordinance, in relation to paragraphs 1, 2, 8, 10, 11, 18, 23, 24, 25, 26(a) and (c), 27, 29, 30, 31, 32, 33(1) and 43 of the Third Schedule to the Ordinance. (3) For the purposes of subsections (1) and (2)- (a) the exemption in relation to paragraph 12(1) of the Third Schedule to the Ordinance shall not have effect with respect to that part of paragraph 12(1)(c) of that Schedule concerning short particulars of any transaction relating to the property completed within the 2 preceding years in which any person who is, or was at the time of the transaction, a promoter or a director or proposed director of the company concerned had any interest direct or indirect; (b) the exemption in relation to paragraphs 31, 32 and 33(1) of the Third Schedule to the Ordinance shall have effect only in relation to prospectuses issued by an issuer who has previously offered by a prospectus issued generally shares or debentures that have been approved for listing on a recognized stock market and such shares or debentures continue to be listed on that recognized stock market; and (c) the exemption in relation to paragraph 45 of the Third Schedule to the Ordinance shall have effect only for the purposes of the interpretation of paragraph 6 of that Schedule and subject to the condition that the business address of the natural person in question is disclosed in substitution for the place of his usual residence. (4) The condition referred to in subsections (1)(e) and (2)(e) is that the prospectus complies with- (a) the specified requirements without any waiver, modification or other dispensation thereof having been granted by the relevant recognized exchange company (and to the extent that the prospectus so complies with only some of the specified requirements, the exemptions under subsections (1)(e) and (2)(e) shall have effect only in relation to those paragraphs of the Third Schedule to the Ordinance referred to in subsections (1)(e) and (2)(e) that impose requirements which are the same as or similar to those specified requirements); and (b) all other requirements of the relevant listing rules applicable to the prospectus (except to the extent that compliance with such requirements is, in accordance with those rules, waived, modified or otherwise dispensed with by the relevant recognized exchange company). (5) In this section- (a) "debt securities" (債務證券) has the meaning assigned to it in the relevant listing rules; (b) "relevant listing rules" (《有關上市規則》) means the listing rules applicable to the stock market referred to in subsection (1)(b) or (2)(b) (as the case may be); (c) "relevant recognized exchange company" (有關認可交易所) means the recognized exchange company that makes the relevant listing rules; and (d) "specified requirements" (指明規定) means those requirements of the relevant listing rules which- (i) apply to the content of prospectuses offering debt securities; and (ii) are the same as or similar to those imposed by virtue of paragraphs 1, 2, 8, 10, 11, 18, 23, 24, 25, 26(a) and (c), 27, 29, 30, 31, 32, 33(1) and 43 of the Third Schedule to the Ordinance, and, for the purpose of determining whether a requirement of the relevant listing rules is the same as or similar to a requirement imposed by virtue of any of paragraphs 1, 2, 8, 10, 11, 18, 23, 24, 25, 26(a) and (c), 27, 29, 30, 31, 32, 33(1) and 43 of the Third Schedule to the Ordinance, it is immaterial that the requirement of the relevant listing rules imposes a more or less onerous obligation than the requirement of paragraph 1, 2, 8, 10, 11, 18, 23, 24, 25, 26(a) or (c), 27, 29, 30, 31, 32, 33(1) or 43 of the Third Schedule to the Ordinance if they relate to the same matter. (L.N. 85 of 2003) "debt securities" (債務證券) "relevant listing rules" (《有關上市規則》) "relevant recognized exchange company" (有關認可交易所) "specified requirements" (指明規定) COMPANIES ORDINANCE (EXEMPTION OF COMPANIES AND PROSPECTUSES FROM COMPLIANCE WITH PROVISIONS) NOTICE - SECT 10 Prospectus to state exemptions relied on VerDate:23/05/2003 Where a prospectus is issued in reliance of any exemption under this Notice, it must contain a statement identifying the exemptions that the issuer of the prospectus has relied on under this Notice. (L.N. 85 of 2003)