The Exchange Listing Rules, including Chapters 19 and 19A, apply to the listing of depositary receipts subject to the additional requirements, modifications, exceptions and interpretations set out in this Chapter. The primary principle underlying the Exchange Listing Rules dealing with depositary receipts is that the holders of depositary receipts are to be treated as generally having equivalent rights and obligations as those afforded to shareholders in an issuer under:(a) the issuer's constitution;(b) the law governing the rights and liabilities as between shareholders and the issuer;(c) the Exchange Listing Rules; and(d) the Securities and Futures Ordinance and subsidiary legislation (including but not limited to the provisions relating to market misconduct and disclosure of inside information and of interests).
References in the Exchange Listing Rules to:(a) "holder of depositary receipts" means the holder of one or more depositary receipt certificates as evidenced by the register of depositary receipts maintained by the depositary in Hong Kong;(b) "shares" or "securities" shall include depositary receipts; and(c) "shareholder" or "member of the issuer" shall include the holder of depositary receipt(s).
For the purpose of the Exchange Listing Rules, a depositary shall not be:(a) an "associate" or "close associate";(b) a "controlling shareholder";(c) a "substantial shareholder"; or(d) excluded from being treated as a member of the public under rule 8.24,
merely by reason of the fact that it is holding shares of an issuer as depositary for the benefit of depositary receipt holders.
If an application is made for the listing of depositary receipts, which are instruments which evidence the interests and rights in shares, the issuer of the shares which the depositary receipts represent is the issuer for the purposes of the Exchange Listing Rules and the application will be dealt with as if it were an application for the admission of the shares which they represent. Prospective issuers should consult the Exchange at the earliest opportunity to seek confidential guidance as to their suitability and the suitability of the depositary.
A depositary issues depositary receipts as agent of the issuer. The depositary holds the shares represented by the depositary receipts for the benefit of the holders of the depositary receipts. The issuer must ensure that the depositary performs the depositary's obligations under the deposit agreement and the Exchange Listing Rules, and that the rights of depositary receipt holders are fully recognised and are generally equivalent to the rights of shareholders of the issuer.
Depositary receipts may be issued in respect of newly issued shares and/or in respect of shares placed with a depositary by existing shareholders provided that the issuer applies to be the issuer of such depositary receipts and assumes the obligations and duties imposed on an issuer by the Exchange Listing Rules. An application for the listing of depositary receipts will not be allowed if the shares which the depositary receipts would represent are al listed on the Exchange and vice versa.
19B.07(1) Subject to (2) below, rule 8.19 is not applicable to any application for listing in respect of depositary receipts.(2) An application for the listing of depositary receipts should allow free conversion between the depositary receipts and the issuer's shares from time to time placed with the depositary up to the entire class of the issued shares which the depositary receipts represent or such lower amount as the issuer may prescribe. For the avoidance of doubt, where approval for the listing of the depositary receipts has been granted, the creation or cancellation of depositary receipts resulting from the conversion of any issued shares into depositary receipts or vice versa up to the prescribed amount of the issued shares which the depositary receipt represent for which listing has been sought will not require a further application to the Exchange.(3) Listing must be sought for all further issues of depositary receipts in excess of those depositary receipts al listed. For the avoidance of doubt, nothing in rule 8.20 shall be construed as requiring listing to be sought for any further issues of shares which the depositary receipts represent.
For the purpose of determining the total number of issued shares of the issuer under rule 8.08, the Exchange will take account of the issuer's underlying shares which will be treated as the same class as the depositary receipts representing those shares provided that there is no restriction on the conversion of those shares into depositary receipts.