Update on Company Law. Hong Kong Arts Administrators Association 10 th March :00pm 4:00pm

Transcription

1 Update on Company Law Hong Kong Arts Administrators Association 10 th March :00pm 4:00pm 1

2 Introduction Rewrite of the Companies Ordinance was endorsed by the Legislative Council in mid The 1 st phase (i.e. the New CO) deals with all provisions relating to live companies The 2 nd phase deals with winding-up and insolvency related provisions 2

3 Introduction The New CO (Companies Ordinance, Cap 622) was passed by the Legislative Council on 12 th July 2012 and about 90% of the new CO was effective from 3 rd March 2014 Provision about insolvency and winding up in the old CO will be retained but retitled as the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32) All other provisions under the old CO will be repealed 3

4 Introduction The New CO contains more than 921 sections and is divided into 21 parts together with 11 schedules. 12 items of subsidiary legislation were also introduced in February

5 Member s privacy (not yet operated) Companies (Residential Addresses and Identification Numbers) Regulation is yet to be operated Pursuant to section 54 of the new CO, the usual residential address of a director and the full identification numbers of any person ("protected information") will not be made available for public inspection. For directors, the new CO requires the provision of correspondence addresses in addition to usual residential addresses. Only the directors' correspondence addresses will be shown on the Companies Register Regarding the identification numbers ("ID numbers") of individuals, certain digits in the ID numbers will be masked and only partial ID numbers (for example, A123***(*)) will be shown on the Companies Register for public inspection. 5

6 Member s privacy (not yet operated) In view of the huge volume of existing records bearing usual residential addresses and ID numbers, section 49 of the new CO provides that the information already on the Companies Register will only be withheld from public inspection upon application and payment of a fee. If a usual residential address of an individual is withheld from public inspection, the correspondence address provided by the individual in lieu of the withheld address will be made available on the Companies Register for public inspection. As for ID number, part of it will remain available for public inspection. 6

7 Member s privacy (not yet operated) Pursuant to sections 55 and 56 of the new CO, in case communication with a director at the director's correspondence address is not effective, the Registrar of Companies ("the Registrar") may, after considering the representations of the director and the company concerned, put the director's usual residential address on the Companies Register as the director's correspondence address and thereby make it available for public inspection. The Registrar's decision of putting the director's usual residential address on the Companies Register will last for five years. 7

8 Correspondence address of company secretary Only the company secretary s correspondence addresses will be shown on the Companies Registry Company secretary s residential address will be replaced automatically by the registered address of the company as the company secretary s correspondence address from 3 rd March 2014 If the company secretary would like to use a different address from the default address set by the Companies Registry, s/he should submit the Form ND2B 8

9 Types of companies under New CO Five types of companies may be formed under section 66 of the New CO: (a) a public company limited by shares; (b) a private company limited by shares; (c) a public unlimited company with a share capital; (d) a private unlimited company with a share capital; (e) a company limited by guarantee without a share capital. 9

10 Natural person is a must All locally incorporated private companies (except dormant companies) must have at least one director who is a natural person (s. 457 New CO). The companies formed under the Old CO will have 6 months of grace period to comply with this requirement (i.e effective from 3 rd September 2014) The private companies formed after 3 rd March 2014 must have at least one director who is a natural person. The at least one natural person director requirement is not applicable to non-hong Kong companies. 10

11 Formation of company (section 67 New CO) Minimum number of shareholders (members) = 1 [s 67(1) New CO]. The shareholder(s) may sign the articles of the company intended to be formed. The shareholder(s) submit to the Companies Registry the incorporation form (NNC1 or NNC1G) and a copy of the Articles of Association ( 公 司 章 程 細 則 ) and pay incorporation fee 11

12 NNC1 or NNC1G? Company limited by shares (NNC1) Company not limited by shares (NNC1G) Private company limited by shares Public company limited by shares Company limited by guarantee Private unlimited company with a share capital Public unlimited company with a share capital 12

13 MOA abolished! Memorandum of Association was abolished. The Memorandum of the existing companies formed before the New CO will be treated as Articles of Association under the New CO. 13

14 Company Name Proposed name of the limited company must not contain the following words as listed in the Companies (Words and Expressions in Company Names) Order (Cap 622A) (avoid using the term: Chamber of Commerce, Kaifong, levy, savings, Tourist Association, Tourism Board, Trust, Trustee, 受 託, 信 託, 旅 遊 協 會, 旅 遊 發 展 局, 商 會, 街 坊, 徵 費, 儲 蓄 ). The word Bank cannot be used also unless approved by the Hong Kong Monetary Authority. 14

15 Company Name Section 100 of New CO states that the name selected: (1) must not be too similar or the same as that already appearing on the index of the companies kept in the Companies Registry which is open to public. [Otherwise, it may be sued by the existing company for passing-off ( 影 射 ). For example: The Walt Disney Company v D Land Travel Limited (HCA3864/2001, 5 th December 2007) for using the name 廸 士 尼 旅 遊 有 限 公 司. The judge ordered the defendant to change its Chinese name on 5 th December 2007 in the Companies Registry] Please note that name registration in the Company Registry is no guarantee for your proper use of the name, nor it is a patent, copyright, trademark. 15

16 Company Name (2) gives the impression that the company is connected with the Central People s Government or the Government of Hong Kong Special Administrative Region; (3) the use of which constitutes a criminal offence; or (4) is offensive or contrary to the public interest. 16

17 Company Name The Registrar of Companies will be empowered to direct the company in question to change its name under the sections 108 and 109 of the New CO. The Registrar will also be given new powers to enhance enforcement against abuses of the company name registration system, including the power to act upon a court order under section 110 of the New CO to direct a company to change its infringing name and the power to replace that name with the company s registration number if it fails to comply with the Registrar s direction to change name. The appeal against the Registrar s direction to change a misleading or offensive name will be submitted to the Administrative Appeals Board (s. 109(3) New CO) instead of to the court. 17

18 Authorised share capital abolished! Authorised share capital is not required to state in the AOA The new law only requires to state the initial share capital at the time of incorporation So it is no longer to pass an ordinary resolution to increase the authorised share capital 18

19 Share capital expressed in foreign currencies All companies are now allowed to express its capital in foreign currencies. 19

20 Articles of Association There are 5 mandatory articles specified in the new CO and 3 sets of Model Articles referred to in the Companies (Model Articles) Notice (Cap 622H) Model articles for public companies limited by shares (s.2 & Schedule 1), Model articles for private companies limited by shares (s.3 & Schedule 2) and Model articles for companies limited by guarantee (s.4 & Schedule 3) The 5 mandatory articles are NOT included in the Model Articles, so the drafters are required to draft the five mandatory articles anyway, rather than simply adopt the Model Articles. 20

21 Articles of Association The 5 mandatory articles are: Company Name (s.81 New CO); Company s objects (s.82 New CO), which are mandatory for company s licensed to dispense with Limited etc in their name (s.103 New CO), but otherwise optional; Members liabilities (s.83 New CO), i.e. limited or unlimited; Liabilities or contributions of members of limited company (s.84 New CO); and Capital and initial shareholdings (s.85) 21

22 Capital and initial Shareholdings Share Capital and Initial Shareholdings on the Company s Formation 股 份 的 類 別 ( 如 普 通 股 / 優 先 股 等 ) Class of Shares (e.g. Ordinary/ Preference etc.) 建 議 發 行 的 股 份 總 數 Total Number of Shares Proposed to be Issued 貨 幣 Curren cy 創 辦 成 員 認 購 的 股 本 總 額 Total Amount of Share Capital to be Subscribed by Founder Members 建 議 發 行 的 股 份 的 將 要 繳 付 或 視 為 已 繳 付 的 總 款 額 Total Amount to be Paid Up or to be Regarded as Paid Up on the Shares Proposed to be Issued 建 議 發 行 的 股 份 的 尚 未 繳 付 或 視 為 尚 未 繳 付 的 總 款 額 Total Amount to Remain Unpaid or to be Regarded as Unpaid on the Shares Proposed to be Issued (a) (b) (a) (b) 22

23 Articles of Association For Capital and Initial Shareholding, A Statement of Capital and Initial Shareholdings is required by Schedule 2 Part 5 of the new CO to be included in the incorporation form under s. 68(2) New CO. The Statement includes the total number of shares that the company proposes to issue on the company s formation, the total amount of share capital to be subscribed by the founder members, the 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). The articles of a company with a share capital may state the maximum number of shares that the company may issue (s.85 (2) New CO) (optional now!) 23

24 Name plate A name plate must be affixed to every registered office or business venue of the company in a conspicuous position and in legible letters, s. 659 New CO and s.3 of the Companies (Disclosure of Company Name and Liability Status) Regulation (Cap 622B). If a location is the registered office or the business venue of more than 6 companies, they can display its registered names through an electronic device for at least 15 continuous seconds at least once in every 4 minutes or the registered name can be displayed within 4 minutes after being requested, s.3 of the Companies (Disclosure of Company Name and Liability Status) Regulation (Cap 622B). 24

25 Name plate Exception: No name plate is required if the company has had no accounting transaction at any time since its incorporation, s.3(4) of the Companies (Disclosure of Company Name and Liability Status) Regulation (Cap 622B). 25

26 Disclosure of company name A company must state its registered name in legible characters in any communication document of the company (receipt, bill, company letter, , poster, advertisement, etc); in any transaction instrument of the company (i.e. contract, agreement, sale order, invoice, etc); and on any website of the company. (Cap. 622B, s.4) 26

27 Penalty for violation of Cap. 622B Violation of this provision will be imposed a fine not exceeding HK$10,000 against the company and every director of the company each, s. 660 New CO 27

28 Common Seal The common seal is now optional (s. 124 New CO), but the company can still make a common seal. If this is the case, the seal must contain the full name of the company and must be made of metal (not necessarily steel) If the company does not make a common seal, the company may execute documents signed by the sole director or, where it has 2 or more directors, by 2 directors or a director and the company secretary, and such documents shall have effect as if executed under seal, s. 127 (3)-(5) New CO. 28

29 Annual Return The legal requirements for submission of annual return (Form NAR1) by every companies in Hong Kong are laid down in Division 5, Part 12 of the New CO, i.e. sections New CO. The annual return must be signed either by a director or the company secretary. There are new change in relation to the submission of annual return by public companies and companies limited by guarantee. 29

30 AR: Private co For private companies, a private company must in respect of every year (except the year of its incorporation) deliver to the Companies Registry for registration an annual return within 42 days after the company s return date. The return date for private companies is the anniversary of the date of the private company s incorporation. The only difference is that there will no longer be the Form AR2-Certificate of No Change and AR3. 30

31 AR: Public co For public companies, annual return should be delivered in respect of each financial year instead of a calendar year to the CR for registration within 42 days after the company s return date. The return date for public companies is 6 months after the end of the public company s accounting year end date. 31

32 AR: Public co For an existing public company, the new requirements only apply to the first financial year of the company that begins on or after the commencement date of the new CO (i.e. 3 rd March 2014) and all subsequent financial years. The annual return for public companies has to be delivered together with certified true copies of relevant financial statements, directors report and auditors report. 32

33 AR: Guarantee co For companies limited by guarantee, annual return should be delivered in respect of each financial year to the CR for registration within 42 days after the company s return date. 33

34 AR: Guarantee co The return date for companies limited by guarantee is 9 months after the end of the public company s accounting year end date. For an existing company limited by guarantee, the new requirements only apply to the first financial year of the company that begins on or after the commencement date of the new CO (i.e. 3 rd March 2014) and all subsequent financial years. The annual return for companies limited by guarantee has to be delivered together with certified true copies of relevant financial statements, directors report and auditors report. 34

35 AR: Dormant co Dormant companies are not required to submit annual return. 35

36 Summary Time for delivery of NAR1 Private co Public co Guarantee co Within 42 days after the return day Return day Anniversary of the date of incorporation 6 months after the end of accounting year end date 9 months after the end of accounting year end date Other documents submitted together NIL certified true copies of relevant financial statements, directors report and auditors report Submission fee Late submission penalty HK$105 Between 42 days and 3 months HK$870; between 3 and 6 months HK$1,740; between 6 and 9 months HK$2,610; longer than 9 months HK$3,480 36

37 AGM Part 12 of the New CO (i.e. s New CO) provides that every company may hold at least once in every financial year a meeting of its members. The first AGM for private company or company limited by guarantee must be held within 9 months after the anniversary of the company s incorporation or 3 months after the end of the accounting year end date, whichever is the later. The first AGM for other companies must be held within 6 months after the anniversary of the company s incorporation or 3 months after the end of the accounting year end date, whichever is the later. The subsequent AGM for private company or company limited by guarantee must be held within 9 months after the accounting year end date. The subsequent AGM for other companies must be held within 6 months after the accounting year end date. 37

38 No AGM required AGM is not required under the following circumstances: Dormant companies One-member companies Everything are done by written resolution and signed by all members Resolution passed and resolved to dispense with holding AGM by all members (such unanimous resolution will have continuous effect until its revocation) 38

39 Different places for AGM at the same time A company may hold a general meeting at 2 or more places using any technology that enables the members of the company to exercise their rights to listen, speak and vote at the meeting. A company may set out rules and procedures for holding a dispersed meeting in the company s articles (s.584 New CO) 39

40 Notice of General Meeting Notice must be issued for every general meeting and be sent to all persons entitled to receive the notice, e.g. members and auditors. The numbers of days notice specified in CO refers to clear days ( 完 整 日 ),i.e. excluding the date of notice and the date of meeting. (Securities and Futures Commission v Stock Exchange of Hong Kong (1992)) The period of notice required depends on the type of meeting and the provisions of the company s AOA. In any event, not less than 21 clear days notice must be given for holding AGM For EGM, not less than 14 clear days notice must be given. 40

41 Special notice Special notice is required when the meeting will consider a change of auditor and/or director. Special notice is a notice given to the company by a member at least 28 days before the meeting. It is a notice that the member intends to move a resolution relating to a change of auditor. Once a special notice is received, the company must give at least 14 clear days notice to its members for this proposed resolution. Notice of general meeting must be given to company directors, members and auditor: In hard copy form or in electronic form By making the notice available on a website 41

42 Proxy Sections New CO provides that any shareholder who is entitled to attend and vote at a meeting may appoint proxy to attend and vote by poll, on a show or hands or vote in the way specified by the shareholder on his behalf, including the right to speak at any meeting. 42

43 Poll A poll may be demanded on any question (except the election of the chairman of the meeting or any adjournment of the meeting) and can be made by: A least 5 shareholders having the right to vote at the meeting; A member or members representing at least 5% of the total voting rights of all the members having the right to vote at the meeting; or By the chairman of the meeting If, before or on the declaration of the result on a show of hands at a general meeting, the chairman of the meeting knows from the proxies received by the company that the result on a show of hands will be different from that on a poll, the chairman must demand a poll. 43

44 Special resolution After passing the special resolution, a copy of the resolution must be submitted to the Companies Registry for registration within 15 days from passing for their records. 44

45 Single resolution to appoint 2 directors At a general meeting of a public company and company limited by guarantee, a motion for appointment of 2 or more persons as directors by a single resolution must not be made, unless no vote is cast against the appointment (s.460). 45

46 Written resolution in lieu of formal general meeting Sections 548 and 612 New CO allows written resolution to take place the formal general meeting. Anything needed to be passed by ordinary resolution or special resolution may be passed as a written resolution. A written resolution signed by or on behalf of all voting members shall be treated as a resolution passed at a general meeting of the company. Such a written resolution will only become effective on the date it was signed by the last member, but it must be signed by the last member within 28 days from the first day of circulation (s.558 New CO). The agreement of a member to a proposed written resolution is ineffective if signified after the end of 28 days. 46

47 Written resolution in lieu of formal general meeting Auditor must be notified of the proposed written resolution in advance at the time of sending of the written resolution to members for circulation. Auditor and members must be notified of the written resolution being passed within 15 days after the resolution is passed. But a physical general meeting must be held under the following circumstances: - Removal of auditors - Removal of directors 47

48 Records of resolutions and general meetings A company must keep records comprising copies of all resolutions of members passed, minutes of all proceedings of general meetings for at least 10 years from the date of the resolution, meeting or decision (s.618 New CO). If the company fails to keep the above records, the company and every responsible person of the company commit an offence and each is liable to a fine of HK$50,000 and to a daily fine of HK$1,

49 Minutes of directors meeting A company must cause minutes of all proceedings at meetings of its directors to be recorded. The meeting records must be kept for at least 10 years. Minutes signed by chairman are evidence of the proceedings at the meeting. Sole director of a private company must provide the company with the written record of that decision within 7 days after the decision is made (s.481 New CO). 49

50 No Share premium account (for Hong Kong companies) Shares are of no par value under section 135 New CO. Share premium is not allowed under the New CO. From the commencement of the New CO, the par value, together with the amounts standing in the credit to the share premium account and the capital redemption reserve will form the share capital (s.37 of Schedule 11, New CO). 50

51 Reasonable care, skill and diligence ( 合 理 水 平 的 謹 慎 技 巧 及 努 力 行 事 ) Directors must take proper care in the discharge and exercise of their duty. Whereas previously the duties of a director to exercise reasonable care, skill and diligence were found mainly in case law, now these duties have been codified in section 465 New CO. Directors fiduciary duties, however, remain defined by case law and uncodified. Section 465 New CO provides that in performing the duties, a director must bring to bear his own skills and experience (a subjective test) as well as those that any director in that position would be presumed to have (an objective test). These standards replace the existing common law rules and equitable principles in relation to the duties (found in Re City Equitable Fire Insurance Co Ltd (1925)). However, the civil consequences for breach (or threatened breach) of the duties under common law and equity are preserved. The duties apply equally to shadow directors as they do to directors (s.466 New CO). 51

52 Section Duty to exercise reasonable care, skill and diligence (1) A director of a company must exercise reasonable care, skill and diligence. (2) Reasonable care, skill and diligence mean the care, skill and diligence that would be exercised by a reasonably diligent person with (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company; and (b) the general knowledge, skill and experience that the director has. (3) The duty specified in subsection (1) is owed by a director of a company to the company. 52

53 Statutory duties: Disclosure of interest in respect of a director Section 536(1) New CO provides that a director who is (directly or indirectly) interested in a transaction, arrangement or contract (contract only in the Old law) or a proposed transaction, arrangement or contract of the company must disclose the nature and extent of their interests in the company s contracts: (1) at the earliest board meeting at which it is practicable for him to do so; or (2) by giving the company a general notice of his interest before the date on which the question of entering into the contract is first taken into consideration. 53

54 Exemption of liabilities for directors It is now allowed the company to add a provision in the AOA to exempt the director from any liability owed to a third party under section 469 New CO. But it cannot exempt liabilities from fine, penalty, criminal offences, civil proceedings initiated from the company 54

55 Exemption of liabilities for directors from ratification Disinterested shareholders may resolve to ratify the conduct of a director involving negligence, default, breach of duty or breach of trust in relation to the company under s. 473 New CO. Votes from interested members (being the director whose conduct is being ratified, or his/her connected entities and a trustee holding the shares for that director or entities) shall be disregarded. If there are no disinterested members, ratification will require all members. 55

56 Thanks! Q & A 56