HIGHLIGHTS OF MAJOR CHANGES IN NEW COMPANIES ORDINANCE

Transcription

1 HIGHLIGHTS OF MAJOR CHANGES IN NEW COMPANIES ORDINANCE Kevin Wong ( 黃 河 ) -- China-Appointed Attesting Officer ( 中 國 委 托 公 証 人 ) -- Hong Kong Solicitor -- England & Wales Solicitor -- Consultant of S.T. Cheng & Co., Solicitors HK Mobile : PRC Mobile : con@stcheng.com / megashark2012@gmail.com

2 New Companies Ordinance New Companies Ordinance Chapter 622 Passed on 12 July 2012 Come into operation on 3 March Parts 921 Sections Schedules Regulations Current CO Vs 367 Sections Vs 24 Schedules

3 After the Change Existing CO (Cap.32) Provisions on existing companies e.g. Share Capital, Directors, Company Secretaries, Meetings Companies Ordinance (Cap 622) Insolvency provisions Prospectus provisions Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32)

4 To Enhance Corporate Governance To Ensure Better Regulation To Facilitate Business To Modernize the Law

5 Types of Companies (New CO) Limited Liability vs Unlimited Liability A. limited company : (i) limited by shares (S.8) (ii) limited by guarantee (S.9) A company limited by guarantee must not have capital. B. unlimited company (S.10) Unlimited company must have share capital.

6 Types of Companies (New CO) Private Company vs Public Company A. Private company (S.11, New CO) : (i) restrictions in connection with private company under the Existing CO (S.29) retained; (ii) it is not a company limited by guarantee. B. Public company (S.12) (defined in New CO) (i) it is not a private company; and (ii) it is not a company limited by guarantee.

7 COMPANY FORMATION AND RELATED MATTERS AND REGISTRATION OF COMPANY 5 Types of companies formed in New CO (S.66) : Private company limited by shares Public company limited by shares Private unlimited companies with a share capital Public unlimited companies with a share capital Companies limited by guarantee without a share capital

8 FORMATION OF COMPANY (S.67) A.A is the sole constitution [ No more MA] Conditions of M.A of an existing company will be regarded as provisions of the company s articles 5 mandatory articles 3 sets of model articles Public company limited by shares Private company limited by shares Companies limited by guarantee

9 Abolition of Conditions of MA Authorized Share Capital Par Value of Share

10 PAR VALUE Accounting for share issues under par value ( PV ) and no -par value ( NPV ) mechanisms: Issue 1 share at an issue price of $100 (a) Under a PV share mechanism where the PV of the share is $10 Dr CASH 100 Cr Share capital 10 (b) Under a NPV share mechanism Share premium Dr CASH 100 Cr Share capital

11 ABOLITION OF PAR VALUE Existing CO : shares issued by a Hong Kong company with a share capital must have a par value. New CO (a) S.135(1) : shares in a company have no nominal value. (b) S.135(2) : this applies to shares issued before, on or after the effective date of the New CO. (c) S.37 of Schedule 11 : any amount in a company s existing share premium account (and also capital redemption reserve) will become part of the company s share capital. (d) S.170 : alteration of capital : increase of capital, capitalization of profit, issue of bonus shares, consolidation or subdivision of shares are feasible. (e) S.172 : redenomination of currency of its share capital.

12 Five mandatory articles Company Name Company s objects Members Liabilities Liabilities or contributions of members of limited company (S.84) Capital and initial shareholdings S.81 S.82 S.83 S.85 mandatory for companies licensed to dispense with Limited in their name Limited Unlimited S.8 of schedule 2- Statement of capital and initial shareholdings

13 S. 8 Schedule 2- Statement of Capital and Initial Shareholdings Total number of share proposed to issue Total amount of share capital to be subscribed by the founder members Total amount to be paid up and to remain unpaid on the total number of shares proposed to be issued on formation and similar information for each class of shares (if any)

14 LIMITATION OF DIRECTOR S POWER IN THE ARTICLES S.117 : Transaction or act binds company despite limitation in articles etc. The power of the company s directors to bind the company is to be regarded as free of any limitation under any relevant document of the company. S.120 : No notice of any matter merely because it is disclosed in (a) the articles of a company kept by the Registrar; or (b) a return or resolution kept by the Registrar.

15 Transactions in relation to Share Capital Modified and new provisions Reduction of capital Share redemptions Buy-backs Financial assistance to acquire its own shares

16 Share Capital Reduction The court free procedure can be summarized in the following time frame All the directors make a solvency statement (S.216(1)) Within 15 days of the date of the solvency statement, the members must pass a special resolution i.e. at least 75% of those voting to approve the proposal (S.216(2)) After the special resolution, the company must publish a notice of capital reduction in Gazette and the newspapers (S.218(1)) On the date of the publication of notice of reduction or earlier, the company delivers to the Registrar for registration the solvency statement (S.218(5)) The company must allow a 5-week period after the date of the special resolution for members or creditors to raise objections (S.220(1)) Assuming no objections raised, the company must deliver, no earlier than 5 weeks and no later than 7 weeks after the date of special resolution, a return (including a statement of capital) to the Registrar stating reduction of capital (S.224(1)) Reduction of share capital becomes effective on the return registered by the Registrar (S.225(1))

17 Existing CO: Redemption / Buy-back of Shares - shares are to be repurchased/redeemed out of distributable profits or the proceeds of a fresh issue of shares. - only private companies are permitted to fund a buy -back by payment out of capital based on a solvency statement made by the directors, on which the auditors must report, as well as publicizing the plan to allow time for creditors or members to object (unless the court is involved). New CO : - S.257 : all companies may redeem/buy back its own shares out of capital, provided the necessary procedures are followed. - S.257(3) : Exception : a buy -back by a listed company of its own shares from a recognized stock market or approved stock exchange.

18 Redemption / Buy-back of Shares S.259(1) : The statutory procedures are as follows : - the solvency statement made by all directors, - approval by special resolution passed by the members, within 15 days after the date of the solvency statement, - payment out of capital to be made not earlier than 5 weeks and no later than 7 weeks after the date of the special resolution, - (i) delivery to the Companies Registrar for registration of a solvency statement, - (ii) publication of a notice in the Gazette and newspaper, - (iii) the 5-week period of allowing members or creditors to raise objection, - (iv) delivery to CR of a return of share redemption/buy -back

19 Financial Assistance for Acquisition of Own Shares Existing CO: - a company and its subsidiaries cannot give financial assistance directly or indirectly for the purpose of an acquisition of shares in the company. New CO : - The prohibition is retained. - S.275(3) : No prohibition of financial assistance given for the purpose of an acquisition of shares in its holding company which is incorporated outside Hong Kong. - S.276 : A financial assistance given in contravention of the New CO, the validity of such financial assistance and its related contracts remain effective but the company and every responsible person of the company is liable to a fine of HK$150,000 and to imprisonment for 12 months (s. 275 (4)). - S : to allow all types of companies (listed or unlisted) to provide financial assistance, subject to satisfaction of the solvency test and one of the three procedures.

20 Directors Resolution to approve the assistance (S.283(1)(a), 284(1)(a), 285(1)(a)) The board resolution must set out the basis for the decision to approve the provision of financial assistance Director s voting in favour make a solvency statement (S.283(1)(b), 284(1)(b), 285(1)(b)) 1) financial assistance (including previous financial assistance granted under this procedure that has not been repaid) not exceeding 5% of share capital and reserves of the company as disclosed in the most recent audited financial statements of the company (S.283(1)(c)); or 2) financial assistance approved by written resolution of all members (S.284(1)(c)); or 3) financial assistance with the approval of members by ordinary resolution (S.285(1)(d)) (ii) (i), (ii) & (iii) (i) & (ii) (i) company sends to each member a copy of the solvency statement and a notice (ii) financial assistance given not more than 12 months after the date of the solvency statement (iii) assistance given not less than 28 days after the passage of the resolution (S.285(1)(e)(i))

21 Solvency Test New CO: - S.205 : A company satisfies a solvency test in relation to a transaction if : - (a) immediately after the transaction there will be no ground on which the company could be found to be unable to pay its debts; and - (b) either - (i) if it is intended to commence winding up within 12 months, the company will be able to pay its debts in full 12 months of the commencement of the winding up; or - (ii) in any other case the company will be able to pay its debts as they become due during 12 months after transaction. Solvency Statement - S.206(1) : A solvency statement is a statement that each of the directors making it has formed the opinion that the company satisfies the solvency test in relation to the transaction. - A solvency statement must be made and signed by : - all directors for buy-backs and reductions of capital, and - signed by a majority of directors for financial assistance. Auditors are no longer required to give any assurance in connection with this statement.

22 Seal Existing CO: every company must have a common seal but it is silent on execution requirements. New CO: S.124 : Adoption and use of common seal (which must be a metallic seal) will become optional. Execution Procedure S.127(2): A company may execute a document under its common seal by affixing its common seal in accordance with the provisions of its articles of association; S.127(5): A document has effect as if executed under the company s common seal if signed in accordance with S.127(3) and expressed to be executed by the company. S.127(3): A company may execute a document by signing the document by any two directors or any director and the company secretary or (in the case of a single-director company) its sole director. S.128(1): A company may execute a document as a deed where : - execution of the document must be in accordance with S.127 outlined above; - the document must be expressed to be executed by the company as a deed; and - the document must be delivered as a deed.

23 Registration of Charges ( Part 8 New CO) Changes to the list of registrable charges Adding a charge on instalments due, but not paid, on the issue price of shares Adding charge on an aircraft or share in an aircraft Charges on bank accounts or cash deposit and a ship owner s lien on subfreights for amounts due under a charter are not charges on book debts and are not registrable.

24 Registration of Charges Existing CO: There are uncertainties and ambiguities with the provisions. New CO: New provisions to eliminate the unclear and redundant items. - Replacing the automatic acceleration of repayment obligation Existing CO: if a charge becomes void due to non -registered with CR within prescribed time limit, the money secured by it would automatically become immediately payable; New CO : S.337(6) replaces the word automatic by discretionary, so that the lender can determine if the secured amount is to become immediately payable; - Requiring to register a certified copy of the charge instrument that is allowed to be inspected by the public Existing CO: only prescribed particulars of the charge is available for public inspection, but not the charge instrument itself; New CO: both a certified copy of the charge instrument (if any) and the prescribed particulars of the charge are registrable and available for public inspection;

25 Registration of Charges - Shorten the filing period to CR of a certified copy of the charge instrument and the prescribed particulars from 5 weeks to 1 month Existing CO: has to file to CR within 5 weeks; New CO : shorten the filing period to 1 month; "month" ( 月 ) means calendar month (S. 3 Interpretation and General Clauses Ordinance)

26 Directors and company secretaries Two major changes A private company (Not related to a public company) Codification of the common law on the standard of care of a director Must have at least one director who is a natural person

27 DIRECTOR S DUTY OF CARE, SKILL AND DILIGENCE - CODIFICATION New CO S.465 : a director s statutory duty to exercise reasonable care, skill and diligence: (i) objective test, and (ii) subjective test. Reasonable care, skill and diligence means : - one which would be exercised by a reasonably diligent person with

28 DIRECTOR S DUTY OF CARE, SKILL AND DILIGENCE - CODIFICATION Objective test : the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director; Subjective test : the general knowledge, skill and experience that the director has S.465 (New CO) applies to a shadow director.

29 New indemnity provisions Relieving offices from liability and provision of director s liability insurance Existing CO New CO A Company s indemnity against directors liability in the Company s articles is void, unless in compliance with the requirements under S.165(2) i.e. for paying the costs incurred for defending proceedings (civil or criminal). S.468(3) : A Company s indemnity for its directors or its associated company s directors against such director s liability for negligence, default, breach of duty or breach of trust in relation to the Company or its associated company is void. S.468(4): this section does not prevent a company from taking out an insurance (for the directors). S.469 : the indemnity is a permitted indemnity provision if it provides for indemnity against liability incurred by a director to a 3 rd party provided no indemnity against directors liability to pay for penalty for regulatory non-compliance, to defend criminal or civil proceedings for which judgment is obtained against the director.

30 Chart 24 S.473 Ratification of conduct of directors involving negligence, default, breach of duty or breach of trust in relation to the company Can only be ratified by resolution of the members of a company

31 Fair Dealing by Directors Perceived to have a conflict of interest situation Extend the prohibition on loans directors to cover a wider category of persons connected with a director New exemptions from the prohibition approval of members s s.496

32 Fair Dealing by Directors new exceptions criminal penalties small loans 5% expenditure on defending proceedings etc Existing CO s.157j have been abolished called up capital or net assets But transaction is voidable

33 Fair Dealing by Directors prohibitions on payments new exception directors for loss of office small payments extended payment by a company to a director of its holding company to payments to entities connected with a director or former director not exceeding $100,000 s.517

34 Fair Dealing by Directors widens the ambit of disclosure of material interest (Existing CO s.162) s.536(1) for public companies transaction adds arrangement procedures for declaration of interest to other directors clarified includes disclosure by a director of any material interest entities to the current "contract and extent to the current nature extended to shadow directors

35 Company Administration and Procedure resolutions meetings company records the registered office the annual return

36 Important change the expansion of the single provision as to written resolutions in the Existing CO s.116b The articles of the company may provide alternative procedures ss who may propose a written resolution? company s duty to circulate written resolutions procedure for signifying agreement period for agreeing to a proposed written resolution Court may intervene if rights of circulation are abused

37 Company Administration and Procedure Notice of Meeting Publication on website Change in number of days S.571 Enhanced powers for members to require the circulation of members resolution and statements s.573 New Period of Notice AGM 21 Days 14 days for limited co 7 days for unlimited co s s.615

38 Company Administration and Procedure A company may hold a general meeting At two or more places Using any technology Enable Members Listen Speak Vote

39 New provisions with regard to the right to demand a poll Rights of proxies Clarifying Existing CO s.114d Reduce threshold 10% Removed current requirement of onetenth of the paid up capital 5% New CO s.591

40 Existing CO s.111(6) New CO AGM A company is not required to hold an AGM if it has only one member AGM is dispensed with by unanimous members consent s.612 (2) (a) s.612 (2) (b)

41 Miscellaneous Offences Relief to officers or auditors of a company in proceedings for misconduct and security for costs New power for the Registrar of Companies to compound specified offences : Companies Registrar may offer not to prosecute a person in breach provided he/she/it pays and remedies the breach within a specified period.

42 Thank you!