Abolition of Memorandum of Association and Matters relating to Company Articles

Under the old Companies Ordinance (Cap. 32) (“the old Ordinance”), a company formed in Hong Kong is required to have a Memorandum of Association and Articles of Association. Under the new Companies Ordinance (“the new CO”), a company incorporated in Hong Kong is only required to have Articles of Association. The Memorandum of Association is abolished under the new CO and information which was required to be contained in the Memorandum of Association under the old Ordinance are set out in the Articles of Association.

The Memorandum of Association used to contain the objects clause of a company. However the objects clause of a company is now less significant given the abolition of the doctrine of ultra vires in relation to corporate capacity in 1997 and all companies now have the capacity and rights of a natural person. As all the information provided on incorporation apart from the objects clause and the authorised capital (which has been removed following the migration to no par) is contained in the Articles of Association and the incorporation form, the need to retain the Memorandum of Association as a separate constitutional document has diminished. It is on this basis that the requirement to have a Memorandum of Association is abolished under the new CO.

The Memorandum of Association is abolished completely under the new CO. For companies formed and registered under a former Companies Ordinance (“existing companies”), a condition that was in the Memorandum of Association immediately before the commencement of the new CO is deemed to be regarded as a provision of the Articles of Association of that company under section 98 of the new CO. However, any such condition which states the amount of share capital with which the company is registered is regarded as deleted and any such condition that divides the share capital into shares of a fixed amount is also regarded as deleted (section 98(4)).

Not necessary, please see the response in respect of Q3 above. However, it is advisable for companies to take the opportunity to review and update their constitutional documents by abolishing the memorandum of association and incorporating the relevant provisions in the articles of association so that their constitutions comprise the articles of association only.

Subject to section 88(3) and any other provisions of the new CO, a company may only alter its Articles of Association by special resolution (section 88(2)).

The following documents are required to be delivered for registration:

1. A copy of the special resolution for alteration of the Articles of Association under section 622 of the new CO;
2. A notice of alteration in the relevant specified forms, namely Forms NAA1, NAA2, NAA3 or NAA4 (see below);
3. A certified copy of the Articles of Association as altered (for Forms NAA1, NAA2 and NAA3) ; and
4. Other relevant documents required to be delivered with the specified forms for registration as appropriate.

• Form NAA1 (Notice of Alteration of Company’s Articles (Other than Alteration of Company’s Objects and Certain Articles by Existing Company)) – for reporting alteration of any provisions of a company’s articles.

• Form NAA2 (Notice of Alteration of Company’s Objects) – for reporting alteration of a company's objects only.

  Notes:

1. Both Forms NAA1 and NAA2 are required to be delivered if there are alterations of both the provisions in the articles (other than certain articles of an existing company (see Form NAA3 below)) and the objects (including the deletion of any of the objects) of the company. Each form is required to be delivered with a certified copy of the articles as altered.
2. The time for delivery of Forms NAA1 and NAA2 is different if the company is a private company (including a company limited by guarantee which was a private company under the old Ordinance). See Note 2 of the Notes for Completion of Form NAA2.

• Form NAA3 (Notice of Alteration of Certain Articles by Existing Company) – for reporting alteration of any provisions of the articles of an existing company if the provisions were contained in the company's Memorandum of Association and could lawfully have been contained in the company' articles instead of in the Memorandum of Association when the Memorandum was registered.

• Form NAA4 (Notice of Change of Company Status) – for reporting change of company status from private company to public company or vice versa by alteration of the company’s articles.

Please see New Companies Ordinance – Outline of Major Changes in Filing Requirements for details.

New companies incorporated under the new CO must have Articles of Association dealing with the following matters:-

• the company name (section 81);

• the articles of a limited company must state that the liability of its members is limited (section 83(1));

• the articles of an unlimited company must state that the liability of its members is unlimited (section 83(2));

• the articles of a company limited by shares must state that the liability of its members is limited to any amount unpaid on shares held by the members (section 84(1));

• the articles of a company limited by guarantee must state that each person who is a member of the company undertakes that if the company is wound up while the person is a member, or within one year after ceasing to be a member, that the person will contribute an amount required, not exceeding a specified amount, to the company’s assets ( section 84(2));

• the articles of a company with a share capital must state the capital and initial shareholdings (section 85(1) and section 8 of Part 5 of Schedule 2);

• the articles of an association to be incorporated with a licence granted under section 103, or of a company with such a licence must state the company’s objects whilst the licence remains in force (section 82(1)). For any other company, it is not mandatory to state its objects in its Articles of Association but it may do so (section 82(2)); and

• the articles of a company with a share capital may state the maximum number of shares that the company may issue (section 85(2)). Note this is not mandatory.

Existing companies will comply with the requirements to have the mandatory articles by virtue of the deeming provision in section 98 of the new CO and there is nothing that they need to do to comply with the provisions. Please note however that -

• only an unlimited company incorporated under the new CO need comply with section 83(2) of the new CO, which requires the articles of such a company to state that the liability of its members is unlimited;

• section 84(1) of the new CO which requires the articles of a company limited by shares to state that the liability of the members is limited to any amount unpaid on the shares does not apply to the articles of an existing company that is deemed to be a company limited by shares under section 4(3) of the old Ordinance;

• there is no requirement for existing companies to comply with section 85 of the new CO which requires the articles of a company with a share capital to state the details of capital and initial shareholdings. This requirement applies only to companies which are required to have such information in their incorporation forms. This will therefore apply only to companies with a share capital incorporated under the new CO.

The new CO empowers the Financial Secretary to prescribe Model Articles for companies. These replace Tables A and C set out in the First Schedule to the old Ordinance and apply to companies incorporated after the commencement of the new CO.

The Companies (Model Articles) Notice (Cap. 622H) prescribes Model Articles for public companies limited by shares (Schedule 1), private companies limited by shares (Schedule 2) and companies limited by guarantee (Schedule 3). A company may adopt any or all of the provisions of the Model Articles appropriate to the type of company being formed and the appropriate Model Articles will apply in so far as the articles registered by the company upon incorporation do not exclude or modify them. If a company’s registered articles do not prescribe any regulations for the company, the Model Articles appropriate to that type of company will form part of the company’s articles (section 80).

The Model Articles will be in addition to the mandatory articles that a company is required to have (see answer to Q6 above).

Model Articles for the types of companies mentioned in Q8 above are provided in the Companies (Model Articles) Notice (Cap. 622H).

Table A, in so far as not modified by the provisions of the new CO, continues to apply to those existing companies who had adopted Table A (by default or otherwise) as their articles of association. Please also see Q13 below.

Yes, please refer to the list of “Articles made void by provisions of the new Companies Ordinance” (pdf Format).

Companies should review their Articles to ensure that they will be able to take advantage of some of the new initiatives under the new CO, for example the provisions on financial assistance for acquisition of shares, non-court based reduction of capital, capitalization of profits under the new no par regime, etc. If in doubt they should seek professional advice.

Section 921(5) of the new CO provides that a reference in an Ordinance, instrument or document (such as the articles of association) to a provision in the old CO that has been repealed and re-enacted (with or without modification) by a provision of the new CO, is to be construed as being or including a reference to the corresponding provision of the new CO. However, section 921(5) applies only where the repealed provision has been re-enacted by the new CO. Moreover, even where section 921(5) is applicable, to facilitate easy reference, companies are encouraged to review and update the references to the old CO provisions in their articles of association to avoid confusion.

Model Articles apply to private and public companies limited by shares and companies limited by guarantee incorporated on or after the commencement of the new CO which choose to adopt them in their entirety or with amendments. They also apply by default to companies formed under the new CO which register their own bespoke articles, in so far as the bespoke articles do not exclude or modify the Model Articles (section 80). Model Articles do not apply by default to existing companies.

There are no Model Articles for unlimited companies as these types of companies are relatively rare and often have very specific needs that do not justify a standardised approach.