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3. Part 3 Company Formation and related matters, and Re-registration of Companies

Company Formation

Section 66 sets out the types of companies that may be formed under the New CO : –

  1. private companies limited by shares;
  2. public companies limited by shares;
  3. private unlimited companies with a share capital;
  4. public unlimited companies with a share capital; and
  5. companies limited by guarantee without a share capital.

Abolishing the Memorandum of Association

Under the New CO, the memorandum of association (“MA”) is no longer required for any company.

For existing companies (i.e. companies formed under the old regime), the conditions in the memorandum are deemed to be contained in the articles of association, except for conditions relating to authorised share capital and par value, which are regarded to have been removed for all purposes (section 98).

Companies which apply to be incorporated under the New CO need to submit only their incorporation form and articles of association.

Any person or persons may form a company by signing the articles of association of the company intended to be formed and delivering to the Registrar for registration a copy of the articles in the same form as those signed by the founding members, together with a completed incorporation form.

The agreement by the founding members to form a company and take up membership of the company to be formed, previously contained in the memorandum of association, is now contained in the articles (section 67).

Mandatory Articles of Association

Companies incorporated under the New CO are required to have certain mandatory articles of association: for instance, the company name (section 81), details of the company’s liabilities, or contributions of the founding members (sections 83 and 84).

For the most part, these mandatory articles have the same conditions as in the MA of companies incorporated under the old Companies Ordinance.

Companies incorporating under the New CO are required to have as one of their mandatory articles a statement of their capital and initial shareholdings, which is also required to be contained in their incorporation forms.

According to section 85(1), this requirement applies only to companies incorporated under the New CO. It is not necessary for companies incorporated under the old regime to amend their articles to include this provision.

Model Articles of Association

According to section 79, a company may choose to adopt any or all of the provisions of the model articles of association prescribed for the type of company to which it belongs.

These model articles are prescribed in Schedules 1 to 3 of the Companies (Model Articles) Notice (Cap. 622H).

Three sets of model articles are prescribed by the Notice: one set for public companies limited by shares, one for private companies limited by shares, and one for companies limited by guarantee.

The model articles prescribed for each type of company form part of the articles of a company if it does not register any other articles, and the model articles apply unless they are excluded or modified by the company’s registered articles (section 80).

Optional Articles

Under section 82(2), companies may still choose to include objects in their articles.

The articles of a company with a share capital may also state the maximum number of shares that the company may issue.

“Limited”/ “有限公司”

Limited Companies can only be registered with “limited” as the last word of their English name or “有限公司” of their Chinese name (section 102).

However, the Registrar, may, by licence, exercise his/her power to dispense with the use of the word “limited” or “有限公司” (section 103).

Common Seal

The old regime required that every company have a common seal with the company name engraved in legible characters.

Under the New CO, a common seal is no longer mandatory. The keeping and use of a common seal is optional.

A company can now contract under seal or in writing (section 127).