2019年1月16日 水曜日





投稿者 Kuribayashi Sogo Law Office | 記事URL

2018年4月 5日 木曜日



投稿者 Kuribayashi Sogo Law Office | 記事URL

2017年3月17日 金曜日

Listing on the Stock Exchange of HK

Date: 17/03/2017
Christy Li

The Stock Exchange of Hong Kong (the "Exchange") is one of the stock exchanges with the largest market capitalisation and active trading in the world. It is an ideal platform for enterprises to raise capital. It is expected that Hong Kong will continue to rank top globally for initial public offerings in 2017, with 130 companies raising funds up to HK$220 billion. This article will briefly introduce the listing methods and the basic listing requirements for listing on the Exchange.

(I) Listing Methods
A company wishing to go public in Hong Kong can apply to list either on the Main Board or the Growth Enterprise Market ("GEM") of the Exchange. There are four methods of listing, the details of which are set out as below:
(i) Offer for Subscription: this is an offer to the public by, or on behalf of, an issuer of its own securities for subscription.
(ii) Offer for Sale: this is an offer to the public by, or on behalf of, the holders or allottees of securities already in issue or agreed to be subscribed.
(iii) Placing: The obtaining of subscriptions for, or the sale of securities by, an issuer or intermediary primarily from or to persons selected or approved by the issuer or the intermediary.
(iv) Introduction: this is an application for listing of securities already in issue where no marketing arrangements are required.
In addition, a GEM issuer may transfer its listing to the Main Board under a streamlined procedure.

(II) Basic Listing Requirements
(i) Financial Requirements
A Main Board new applicant must have a trading record of not less than three financial years and meet one of the following three financial criteria:

  Profit Test Market Cap/Revenue Test Market Cap/Revenue/Cashflow Test
Profit Attributable to Shareholders At least HK$50 million in the last 3 financial years (with profits of at least HK$20 million recorded in the most recent year, and aggregate profits of at least HK$30 million recorded in the 2 years before that) - -
Market Cap At least HK$200 million at the time of listing At least HK$4 billion at the time of listing At least HK$2 billion at the time of listing
Revenue   At least HK$500 million for the most recent audited financial year At least HK$500 million for the most recent audited financial year
Cashflow     Positive cashflow from operating activities of at least HK$100 million in aggregate for the three preceding financial years

A GEM new applicant must have a trading record of at least two financial years comprising:
i. A positive cashflow generated from operating activities in the ordinary and usual course of business of at least HK$20 million in aggregate for the two financial years immediately preceding the issue of the listing document
ii. Market cap of at least HK$100 million at the time of listing

(ii) Acceptable Jurisdictions
Chapter 19 of the Main Board Listing Rules and Chapter 24 of the GEM Listing Rules provide the general framework applicable to all overseas companies seeking a listing on the Exchange.  Main Board Rule 19.05(1)(b) and GEM Rule 24.05(1)(b) and the explanatory notes thereto set out the shareholder protection standards that are expected of an overseas company when seeking a primary listing on the Exchange. Applicants incorporated outside Hong Kong and other recognised jurisdictions seeking a primary listing on Main Board and GEM are assessed on a case-by-case basis and have to demonstrate they are subject to appropriate standards of shareholder protection, which are at least equivalent to those required under Hong Kong law.

(iii) Accounting Standards
A new applicant's accounts must be prepared in accordance with Hong Kong Financial Reporting Standards, International Financial Reporting Standards or China Accounting Standards for Business Enterprises for PRC issuer only.

For Main Board new applicants, accounts of an overseas-incorporated issuer seeking a secondary listing on the Exchange prepared in accordance with generally accepted accounting principles in the United States of America or other accounting standards may be acceptable by the Exchange on a case by case basis.

(iv) Suitability for Listing
Both the issuer and its business must, in the opinion of the Exchange, be suitable for listing. An issuer or its group (other than an investment company) whose assets consist wholly or substantially of cash or short-dated securities will not normally be regarded as suitable for listing, except where the issuer or group is solely or mainly engaged in the securities brokerage business.

(v) Operating History and Management
A Main Board new applicant must have a trading record period of at least 3 financial years with management continuity for at least the 3 preceding financial years; and ownership continuity and control for at least the most recent audited financial year. Under the Market Cap/Revenue test, the Exchange may accept a shorter trading record period under substantially the same management if the new applicant can demonstrate that its directors and management have sufficient and satisfactory experience of at least three years in the line of business and industry of the new applicant; and there is management continuity for the most recent audited financial year.

A GEM new applicant must have a trading record of at least 2 full financial years with substantially the same management throughout the 2 full financial years; and a continuity of ownership and control throughout the full financial year immediately preceding the issue of the listing document. The Exchange may accept a shorter trading record period and waive or vary the ownership and management requirements for newly-formed "project" companies and mineral companies.

(vi) Minimum Market Capitalisation
The expected market capitalisation of a new applicant at the time of listing must be at least HK$200 million for Main Board and HK$100 million for GEM.

(vii) Market Capitalisation of Public Float
The expected market capitalisation at the time of listing of the securities of a new applicant which are held by the public must be at least HK$50 million for Main Board and HK$30 million for GEM.

(viii) Public Float
At least 25% of the issuer's total number of issued shares must at all times be held by the public. Where the issuer has one class of securities or more apart from the class of securities for which listing is sought, the total securities of the issuer held by the public on all regulated markets at the time of listing must be at least 25% of the issuer's total number of issued shares. However, the class of securities for which listing is sought must not be less than 15% of the issuer's total number of issued shares.

(ix) Spread of Shareholders
The equity securities seeking for listing must be held among at least 300 holders for Main Board, and at least 100 persons for GEM.

(x) Offering Mechanism
A new applicant may not list by way of placing only if there is likely to be significant public demand for its securities. For GEM, A new applicant is free to decide on its offering mechanism and may list on our Exchange by way of placing only.

(xi) New Issue Price
Both the Main Board and the GEM Listing Rules do not impose conditions on the new issue price. However, new shares cannot be issued at a price below their nominal value.

投稿者 Kuribayashi Sogo Law Office | 記事URL

2017年3月10日 金曜日

HK Company Law Topics2: Acquisition of Shares in a HK Private Company

Date: 10/03/2017
Christy Li

If a purchase wishes to acquire the entire or part of the issued share capital of a private company incorporated in Hong Kong and to obtain the legal and beneficial title therein, this could be done in a simple way by executing the instrument of transfer and the bought and sold notes in relation to the targeted shares. As a reminder, share transfers are sometimes restricted by, for example, provisions in the company's articles of association.

However, in the case of acquisition of a company with substantial assets and/or operation, the transaction will be structured and relevant legal documents would be involved to ascertain parties' rights and liabilities in the contemplated transaction, which are similar to that used in many international jurisdictions and typically includes the following:
(1) a confidentiality letter or non-disclosure agreement in which the parties undertake to keep confidential the actual transaction and any information they may obtain during the due diligence process. In some cases, it may include a provision for exclusive negotiations for a particular period so that the purchaser knows that there will be no dual negotiations or auction type process;
(2) a due diligence questionnaire and report in relation to the business or company;
(3) a sale and purchase agreement that specifies the obligations and liabilities of each party in relation to the sale. This normally includes detailed representations and warranties regarding the business or company;
(4) a disclosure letter in which the seller makes disclosures against the representations and warranties in the sale and purchase agreement;
(5) share transfer forms where the sale and purchase involves, including but not limited to the instrument of transfer and bought and sold notes.
The transfer of Hong Kong stock attracts stamp duty at 0.2% on the higher of the consideration or market value of the shares (that is, 0.1% on the shares sold and a further 0.1% on the shares bought) together with a fixed amount of HK$5 on the instrument of transfer. For unlisted shares, the Stamp Office looks to the net asset value of the company to ascertain its market value. Contract notes must be submitted to the Stamp Office for stamping within 2 days (30 days if the sale takes place outside Hong Kong) of their execution. There are also stamp duty mitigation techniques such as issuance of new shares to the buyer instead of transferring existing shares. Any mitigation techniques require proper implementation.

In the case of a private company, a certified copy of the latest audited accounts (consolidated where relevant) or latest management accounts (if audited accounts have not been prepared or if they are not up to date) together with details of any land and properties held and a copy of any sale and purchase agreement must normally be submitted when the documents are lodged for stamping. The Stamp Office may also require additional information.

Penalties for failure to stamp documents within the required time range from 2 to 10 times the amount of duty payable, although the Collector of Stamp Revenue has power to remit the whole or any part of any penalty in appropriate cases. Neither the company nor any other person is permitted to act on or in general rely in court proceedings on any stampable instrument which is not duly stamped. An unstamped instrument may not be registered in the company's books.

After stamping (and compliance with any other formalities prescribed by the articles of association), the transfer can be registered in the statutory books of the company and a new share certificate issued.

投稿者 Kuribayashi Sogo Law Office | 記事URL

2017年3月 8日 水曜日

HK Company Law Topics 1: Setting up a company in HK

Date: 08/03/2017
Christy Li

Hong Kong is one of the popular jurisdictions where international investors would elect for establishing trading and investment companies for cross border transactions. The governance of Hong Kong incorporated companies, including but not limited to the company incorporation, directors and shareholders, are mainly set out in the Companies' Ordinance (Cap.622) (the "Companies Ordinance"). This note provides an outline of matters relating to the incorporation of a Hong Kong company.

Why Hong Kong?
As an introduction of the Hong Kong market, below are some of the benefits of setting up a Hong Kong company:

1. English legal system.  Hong Kong's constitution, or the Basic Law, protects the fundamental rights of individuals and the capitalist system inherited from British colonial rule. Although Hong Kong is part of the People's Republic of China ("PRC"), Hong Kong enjoys a high degree of autonomy from the PRC under the "One Country, Two Systems" policy including the right of final adjudication by the Hong Kong Court of Final Appeal. Hong Kong maintains the common law system and the Companies Ordinance follows the principles set out in the UK company laws, affording stable legal system.

2. Financial Centre.   Being a preeminent financial and banking centre, Hong Kong has attracted major players in the financial and legal practitioners. In 2017 and for the 23rd consecutive year, the Heritage Foundation and Wall Street Journal's Index of Economic Freedom rated Hong Kong with the highest economic freedom score out of 171 countries around the world. The Index of Economic Freedom placed particular emphasis on Hong Kong's efficient legal and tax systems, competitive trade regime and overall business freedom. Most importantly, there is no restriction on capital transfer in or out of Hong Kong.

3. Easy to set up.  Setting up a Hong Kong company is well regulated and very quick and simple.  With all required documents, it normally takes 7-10 days to set up a Hong Kong company.  The minimum issued share capital is only HK$1. It requires only one shareholder and one director and can be 100% foreign owned.

4. Favourable Tax Regime.  Hong Kong has a simple and efficient tax system that taxes income on a territorial basis. This means that income is only subject to tax in Hong Kong if it has, or is deemed to have, a source from within the territory. The current profits tax rate in Hong Kong is 16.5% for companies with profits derived from a Hong Kong source. There are no taxes in Hong Kong on dividends, interest or capital gains and distributions made outside of the territory are free of withholding tax. There is also no value added tax and estate duty. 

5. Tax Treaty Status.  Hong Kong has concluded various double tax agreements (the "DTA") with foreign countries where Japan is one of them. On 9 November 2010, the government of Japan and Hong Kong has entered into the first income tax treaty which clarifies the scope of income that can be taxed in Japan and Hong Kong and stipulates provisions on negotiation between tax authorities including mediation procedures to resolve tax-related problems arising between Japan and Hong Kong. This treaty generally reduces withholding tax rates on investment income (dividends, interest and royalties) and the potential avoidance of double taxation by permitting a resident of one jurisdiction to claim a credit for taxed paid income derived in the other jurisdiction.

Under the Companies Ordinance of Hong Kong, a private company in Hong Kong is defined as a company which by its articles:
1. restricts the shareholders' right to transfer shares;
2. limits the number of its shareholders to 50 (which does not include (a) persons who employed by the company and (b) former employees of the company who were members of the company while they were employed); and
3. prohibits the making of any invitation to the public to subscribe for any shares or debentures of the company.

In addition, a private company must not be a company limited by guarantee.
The incorporation of a limited liability private company in Hong Kong could be done online at the 24-hour portal e-Registry or deliver the documents in hard copy form to the Companies Registry with fees:
1. Incorporation Form (Form NNC1 for company limited by shares)
2. A copy of the company's Articles of Association
3. A Notice to Business Registration Office (IRBR1)

Under the Business Registration Ordinance (Cap.310), at the time an incorporation application is made, the applicant must pay to the Commissioner the prescribed business registration fee and levy and deliver a notice in a form specified by the Commissioner (Form IRBR1) together with the other incorporation documents to the Company Registry. On the incorporation of the company, the company is deemed to have made a business registration application. A business registration certificate will then be issued together with the certificate of incorporation on the incorporation of the company. The business registration certificate must be displayed by the company. A business registration certificate can be obtained for one year or three years.

Share Capital
The Companies Ordinance provides that shares in a Hong Kong company have no nominal value. The Companies Ordinance has not prescribed any requirement for the number of shares to be issued. The articles of association of a Hong Kong company with a share capital can state the maximum number of shares that the company may issue.

Company Name
For limited liability companies incorporated in Hong Kong, the company name must not be the same as a name appearing in the index of company names kept by the Companies Registry. You may conduct a company name search free of charge through the Companies Registry's Cyber Search Centre or the Company Search Mobile Service.

Company Structure
Under the Companies Ordinance, Hong Kong companies must have at least one member (i.e. shareholder) and that one member may be a nominee of the beneficial owner. The member need not be resident in Hong Kong and can be an individual or a corporation. The sole shareholder can be a director of the company.

A private limited liability company in Hong Kong requires at least one director who is a natural person and one company secretary. If the company has one director only, the sole director cannot be the company secretary of the company at the same time. A non-Hong Kong resident can be appointed as a director. If the company secretary is a natural person, he/she should ordinarily reside in Hong Kong. If the company secretary is a body corporate, its registered office or place of business should be in Hong Kong.

Pursuant to the Professional Accountants Ordinance (Cap.50), the company must appoint an auditor who is either an accountant or firm of accountants registered in Hong Kong and having recognised qualifications.

The company must have a registered office in Hong Kong to which any legal documents, notices or communications can be served on the company. Such notices or communications are properly served if left at or sent by post to that office. Various statutory registers and documents of a company are required to be kept at its registered office. These include registers of debenture holders, shareholders, charges, directors and company secretaries, copies of every instrument creating a charge, copies of permitted indemnity provisions or written memoranda setting out the terms of such provisions, copies of management contracts or written memoranda setting out the terms of such contracts, copies of shareholders' resolutions, minutes of proceedings of general meetings and written records of decisions of a sole member and a register of particulars referred to in section 384 of the Companies Ordinance.

The intended address of the company's registered office is required to be stated in the incorporation form registered. Any change in the registered office address after the date of incorporation must be notified to the Registrar. A notice of the change in the specified form (Form NR1) must be sent to the Registrar within fifteen days after the date of the change.

The fees for incorporating a company limited by shares are:
1. company registration fee - HK$1,720 (If unsuccessful, an application for a refund of HK$1,425 may be made)
2. business registration fee - HK$2,000 for a one-year certificate; HK$5,200 for a three-year certificate
3. levy to the Protection of Wages on Insolvency Fund - HK$250 for a one-year certificate; HK$750 for a three-year certificate

Processing Time
Online applications for company incorporation and business registration can normally be processed within one hour. If you deliver your application in hard copy form, the Certificate of Incorporation and Business Registration Certificate will normally be issued within four working days.

投稿者 Kuribayashi Sogo Law Office | 記事URL



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