For Hong Kong private limited company, instead of Memorandum and Articles of Association (“M&A”), we only issue the Articles of Association (“AA”) only; this is because the Memorandum mainly is to state the object clause of the company, where nowadays, a company in Hong Kong is free to engage any legitimate business, Companies Registry has abolished the Memorandum of Association during the launch of New Companies Ordinance in 2014.
When should I amend/alter/change the Articles of Association?
First of all, this is not mandatory to amend the M&A if your company was incorporated before the launch of the new Companies Ordinance; therefore, the main reason for you to consider amending it is to alter the content within, which in general includes below areas:
Class of shares and its related interests, rights, powers and restrictions;
Alternation, Reduction, Buy-backs, Allotments, Capitalization and Distributions of shares;
Appointment, Resignation, Retirement, Powers and Responsibilities of Directors and other offices (such as Company Secretary / CEO);
Meetings and Decision-Making arrangements;
Any other administrative arrangements of the Company;
To further summarize, because articles of association are the agreement binding between the company and each member of the company; and each member of the company, as soon as the specific arrangement of the company complies with the law, such arrangement could be stated in the Articles of Association as part of the enforceable binding agreement. Therefore, for a change of company name, amendment of articles of association is not required.
How to amend the Articles of Association
The Articles of Association template at incorporation already includes basic and standard arrangements of the company. Usually, we receive enquiries on amending the articles of association is either to allot a new class of shares, such as preferred / preference shares or to appoint a director(s) to represent the specific class of shareholders with specific rights and powers.
Because the request is a tailor-made arrangement, we used to advise customers to get assistance from a professional lawyer to obtain the best interests for all parties without later on unnecessary legal dispute due to hasty amendments to the articles of association.
Also, the lawyer in here also acting as a professional consultant to give an expert opinion whether an amendment of articles of association is necessary, or a separate private shareholders agreement could already facilitate the needs while retaining the privacy of the shareholders’ arrangement without publicly disclosed at the company search platform. For this arrangement, the lawyer is needed to act as an independent 3rd party to witness and ensure all engaging parties are well aware of their rights and obligations.
Preparation of mandatory documents
Upon the amended and restated articles of association has prepared by the lawyer, we are here to arrange the remaining mandatory documents for filing to Companies Registry:
Special resolution – mandatory filing to approve the amended articles of association;
Directors’ resolution – mandatory internal records, mainly to approve all execution of the decision of the special resolutions;
Amended Articles of Association – to be certified by any one of the directors of the company to proceed with the filing;
NAA1 – Notification of Alternation of Company’s Articles, this is the form used to adopt the full set amended AA, specific articles to be amended without adopting full set AA is also available;
Depends on the complexity of the amended articles of association, it usually takes around 2 weeks for the Companies Registry to approve the filing of amended Articles of Association. In case there are some confusing articles, or contents that might be contrary to the Companies Ordinance, the case will be escalated for further legal advice, resulting in delay or even rejection of the filing. Therefore, once again, we highly recommend seeking a professional lawyer in the preparation for the amended articles of association.
Upon completion of the filing, we will arrange a hard copy printout of the amended articles of association, also, on request, we can arrange certified amended articles of association for later-on submission to bankside or necessary business partners to ensure the validity of the business relationship.
Any additional information you would like to know, please feel free to drop us an email:- catcherbiz@outlook.com. In addition, we dig out the below materials in case you need a little more insight.
Q4-6 FAQ – Companies Registry - Incorporation
FAQ – Companies Registry - Abolition of Memorandum of Association and Matters relating to Company Articles
Q6 FAQ – Companies Registry – Electronic services, where you can view the sample AA provided by the Companies Registry