COMPANIES ORDINANCE - CHAPTER 32 COMPANIES ORDINANCE - LONG TITLE Long title VerDate:30/06/1997 To consolidate and amend the law relating to companies. [1 July 1933] (Originally 39 of 1932 (Cap 32 1950)) COMPANIES ORDINANCE - SECT 1 Short title VerDate:30/06/1997 This Ordinance may be cited as the Companies Ordinance. COMPANIES ORDINANCE - SECT 2 Interpretation VerDate:11/07/2008 "accounts" (帳目) "agent" (代理人) "amend" (修訂) "annual return" (周年申報表) "articles" (章程細則) "authorized financial institution" (認可財務機構) "book and paper" (簿冊及文據) and "book or paper" (簿冊或文據) "certificate of solvency" (有償債能力證明書) "Commission" (監察委員會) "company" (公司) "company limited by guarantee" (擔保有限公司) and "company limited by shares" (股份 有限公司) "contributory" (分擔人) "court" (法院、法庭) "creditors' voluntary winding up" (債權人自動清盤) "debenture" (債權證) "default fine" (失責罰款) "director" (董事) "document" (文件) "electronic record" (電子紀錄) "entitled person" (有權利的人) "existing company" (現有公司) "financial year" (財政年度) "founder member" (創辦成員) "general rules" (一般規則) "group accounts" (集團帳目) "group of companies" (公司集團) "image record" (影像紀錄) "imaging method" (影像處理方法) "incorporation form" (法團成立表格) "issued generally" (公開發出) "liquidator" (清盤人) "listed company" (上市公司) "manager" (經理) "members voluntary winding up" (成員自動清盤) "memorandum" (章程大綱) "the minimum subscription" (最低認購額) "non-Hong Kong company" (非香港公司) "notice of intent" (意願通知書) "offer to sell" (售賣要約) "officer" (高級人員) "officer who is in default" (失責高級人員) "Official Receiver" (破產管理署署長) "place of business" (營業地點) "prescribed" (訂明) "printed" (印刷、印製) "private company" (私人公司) "prospectus" (招股章程) "recognized exchange company" (認可交易所) "recognized exchange controller" (認可控制人) "recognized stock market" (認可證券市場) "record" (紀錄) "Registrar" (處長) "Registrar's index of company names" (處長公司名稱索引) "relevant financial documents" (有關財務文件) "reserve director" (備任董事) "resolution for reducing share capital" (股本減少決議) "a resolution for voluntary winding up" (自動清盤決議) "shadow director" (影子董事) "share" (股、股份) "share warrant" (認股權證) "specified corporation" (指明法團) "specified form" (指明格式) "summary financial report" (財務摘要報告) "Table A" (A表) "the time of the opening of the subscription lists" (開立認購名單的時間) "unlimited company" (無限公司) "unlisted company" (非上市公司) Interpretation and Specification of Forms (Amended 3 of 1997 s. 2) (1) In this Ordinance, unless the context otherwise requires- "accounts" (帳目) includes a company's group accounts, whether prepared in the form of accounts or not; (Added 80 of 1974 s. 2) "agent" (代理人) does not include a person's counsel acting as such; (Added 6 of 1984 s. 2) "amend" (修訂) includes delete, add to or vary and the doing of all or any of such things simultaneously; (Added 30 of 2004 s. 2) "annual return" (周年申報表) means the return required to be made under section 107; (Amended 28 of 2003 s. 2) "articles" (章程細則) means the articles of association of a company, as originally framed or as altered by special resolution, including, so far as they apply to the company, the regulations contained in Table A in the First Schedule annexed to the Companies Ordinance 1865 (1 of 1865), or in that table as altered in pursuance of powers given under that Ordinance, or in Table A in the First Schedule to the Companies Ordinance 1911 (58 of 1911), or in that table as altered in pursuance of section 117 of the last mentioned Ordinance, or in Table A in the First Schedule to this Ordinance; "authorized financial institution" (認可財務機構) means an authorized institution within the meaning of section 2 of the Banking Ordinance (Cap 155); (Added 12 of 1998 s. 2. Amended 49 of 1995 s. 53) "book and paper" (簿冊及文據) and "book or paper" (簿冊或文據) include accounts, deeds, writings, and documents; "certificate of solvency" (有償債能力證明書) means a certificate issued under section 233; (Added 28 of 2003 s. 2) "Commission" (監察委員會) means- (a) subject to paragraphs (b) and (c), the Securities and Futures Commission referred to in section 3(1) of the Securities and Futures Ordinance (Cap 571); (b) where any relevant transfer order made under section 25 of that Ordinance is in force, the recognized exchange company concerned or both the Securities and Futures Commission and the recognized exchange company concerned, in accordance with the provisions of that order; or (c) where any relevant transfer order made under section 68 of that Ordinance is in force, the recognized exchange controller concerned or both the Securities and Futures Commission and the recognized exchange controller concerned, in accordance with the provisions of that order; (Replaced 5 of 2002 s. 407) "company" (公司) means a company formed and registered under this Ordinance or an existing company; "company limited by guarantee" (擔保有限公司) and "company limited by shares" (股份 有限公司) have the meanings assigned to them respectively by section 4(2); (Added 6 of 1984 s. 2) "contributory" (分擔人) has the meaning assigned to it by section 171; (Added 6 of 1984 s. 2) "court" (法院、法庭) means the Court of First Instance; (Replaced 6 of 1984 s. 2. Amended 25 of 1998 s. 2) "creditors' voluntary winding up" (債權人自動清盤) has the meaning assigned to it by section 233(4); (Added 6 of 1984 s. 2) "debenture" (債權證) includes debenture stock, bonds and any other securities of a company whether constituting a charge on the assets of the company or not; "default fine" (失責罰款) has the meaning assigned to it by section 351(1A)(d); (Added 6 of 1984 s. 2. Amended 75 of 1993 s. 2) "director" (董事) includes any person occupying the position of director by whatever name called; "document" (文件) includes summons, notice, order, and other legal process, and registers; "electronic record" (電子紀錄) has the meaning assigned to it by section 2(1) of the Electronic Transactions Ordinance (Cap 553); (Added 30 of 2004 s. 2) "entitled person" (有權利的人), in relation to a listed company, means a person who under section 129G(1) as read with the proviso thereto is entitled to be sent copies of the documents mentioned in that section; (Added 27 of 2001 s. 2) "existing company" (現有公司) means a company formed and registered under the Companies Ordinance 1865 (1 of 1865), or the Companies Ordinance 1911 (58 of 1911); "financial year" (財政年度), in relation to any body corporate, means the period in respect of which any profit and loss account of the body corporate laid before it in general meeting is made up, whether that period is a year or not; (Added 80 of 1974 s. 2) "founder member" (創辦成員) means a person who has signed his name on a memorandum in accordance with section 4(1); (Added 30 of 2004 s. 2) "general rules" (一般規則) means general rules made under section 296 and includes forms; "group accounts" (集團帳目) has the meaning assigned to it by section 124(1); (Added 80 of 1974 s. 2) "group of companies" (公司集團) means any 2 or more companies or bodies corporate one of which is the holding company of the other or others; (Added 6 of 1984 s. 2) "image record" (影像紀錄) means a record produced using the imaging method and, where the context permits, includes a record in a legible form; (Added 28 of 2003 s. 2) "imaging method" (影像處理方法) means a method by which documents in a legible form or in the form of microfilm are scanned by a scanner and the information recorded therein is converted into electronic images, which are then stored on electronic storage media capable of being retrieved and reproduced in a legible form; (Added 28 of 2003 s. 2) "incorporation form" (法團成立表格) has the meaning assigned to it by section 14A(1); (Added 30 of 2004 s. 2) "issued generally" (公開發出), in relation to a prospectus, means issued to persons who are not existing members or debenture holders of the company; (Added 78 of 1972 s. 2) "liquidator" (清盤人) includes a provisional liquidator holding such office by virtue of section 194; (Added 46 of 2000 s. 2) "listed company" (上市公司) means a company which has any of its shares listed on a recognized stock market; (Added 77 of 1991 s. 2. Amended 5 of 2002 s. 407) "manager" (經理), in relation to a company, means a person who, under the immediate authority of the board of directors, exercises managerial functions but does not include- (a) a receiver or manager of the property of the company; or (b) a special manager of the estate or business of the company appointed under section 216; (Added 28 of 2003 s. 2) "members' voluntary winding up" (成員自動清盤) has the meaning assigned to it by section 233(4); (Added 6 of 1984 s. 2) "memorandum" (章程大綱) means the memorandum of association of a company, as originally framed or as altered in pursuance of any enactment; "the minimum subscription" (最低認購額) has the meaning assigned to it by section 42(2); (Added 6 of 1984 s. 2) "non-Hong Kong company" (非香港公司) has the meaning assigned to it by section 332; (Added 30 of 2004 s. 2) "notice of intent" (意願通知書) means a notice of intent referred to in regulations made under section 359A(2); (Added 27 of 2001 s. 2) "offer to sell" (售賣要約), in relation to any shares or debentures, includes- (a) any act or omission or other thing calculated to invite offers to purchase the shares or debentures; (b) any reference to offer for sale; (Added 30 of 2004 s. 2) "officer" (高級人員), in relation to a body corporate, includes a director, manager or secretary; (Added 80 of 1974 s. 2) "officer who is in default" (失責高級人員) has the meaning assigned to it by section 351(2); (Added 6 of 1984 s. 2) "Official Receiver" (破產管理署署長) means the Official Receiver appointed under the Bankruptcy Ordinance (Cap 6); (Added 30 of 1999 s. 2) "place of business" (營業地點), in relation to a non-Hong Kong company, has the meaning assigned to it by section 341(1); (Added 30 of 2004 s. 2) "prescribed" (訂明) means as respects the provisions of this Ordinance relating to the winding-up of companies, prescribed by general rules, and as respects the other provisions of this Ordinance, prescribed by the Chief Executive in Council; (Amended 23 of 1999 s. 3) "printed" (印刷、印製) means produced by ordinary letterpress or lithography or by such other process as the Registrar in his discretion may accept; (Added 4 of 1963 s. 2) "private company" (私人公司) has the meaning assigned to it by section 29; (Added 6 of 1984 s. 2) "prospectus" (招股章程)- (a) subject to paragraph (b), means any prospectus, notice, circular, brochure, advertisement, or other document- (i) offering any shares in or debentures of a company (including a company incorporated outside Hong Kong, and whether or not it has established a place of business in Hong Kong) to the public for subscription or purchase for cash or other consideration; or (ii) calculated to invite offers by the public to subscribe for or purchase for cash or other consideration any shares in or debentures of a company (including a company incorporated outside Hong Kong, and whether or not it has established a place of business in Hong Kong); (b) does not include any prospectus, notice, circular, brochure, advertisement, or other document- (i) to the extent that it is a publication falling within section 38B(2); or (ii) to the extent that it contains or relates to an offer specified in Part 1 of the Seventeenth Schedule as read with the other Parts of that Schedule; (Replaced 30 of 2004 s. 2) "recognized exchange company" (認可交易所) means a company recognized under section 19(2) of the Securities and Futures Ordinance (Cap 571) as an exchange company for operating a stock market; (Added 5 of 2002 s. 407) "recognized exchange controller" (認可控制人) has the same meaning as in section 1 of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap 571); (Added 5 of 2002 s. 407) "recognized stock market" (認可證券市場) has the same meaning as in section 1 of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap 571); (Added 5 of 2002 s. 407) "record" (紀錄) includes not only a written record but any record conveying information or instructions by any other means whatsoever; (Added 28 of 2003 s. 2) "Registrar" (處長) means the Registrar of Companies appointed under section 303; (Replaced 6 of 1984 s. 2) "Registrar's index of company names" (處長公司名稱索引) means the index of names kept by the Registrar under section 22C; (Added 60 of 1990 s. 2) "relevant financial documents" (有關財務文件), in relation to a listed company, means the documents required to be sent under section 129G(1) in respect of the company; (Added 27 of 2001 s. 2) "reserve director" (備任董事) means a person nominated as a reserve director of a private company under section 153A(6); (Added 28 of 2003 s. 2) "resolution for reducing share capital" (股本減少決議) has the meaning assigned to it by section 58(2); (Added 6 of 1984 s. 2) "a resolution for voluntary winding up" (自動清盤決議) has the meaning assigned to it by section 228(2); (Added 6 of 1984 s. 2) "shadow director" (影子董事), in relation to a company, means a person in accordance with whose directions or instructions the directors or a majority of the directors of the company are accustomed to act; (Added 28 of 2003 s. 2) "share" (股、股份) means share in the share capital of a company, and includes stock except where a distinction between stock and shares is expressed or implied; "share warrant" (認股權證) has the meaning assigned to it by section 73; (Added 6 of 1984 s. 2) "specified corporation" (指明法團) means a company or a non-Hong Kong company; (Added 30 of 2004 s. 2) "specified form" (指明格式), in relation to a particular provision of this Ordinance, means the appropriate form specified for the time being under section 2A, for the purposes of that provision; (Added 3 of 1997 s. 3) "summary financial report" (財務摘要報告), in relation to a listed company, means a summary financial report of the company which complies with section 141CF(1); (Added 27 of 2001 s. 2) "Table A" (A表) means Table A in the First Schedule; "the time of the opening of the subscription lists" (開立認購名單的時間) has the meaning assigned to it by section 44A(1); (Added 6 of 1984 s. 2) "unlimited company" (無限公司) has the meaning assigned to it by section 4(2); (Added 6 of 1984 s. 2. Amended 77 of 1991 s. 2) "unlisted company" (非上市公司) means a company which does not have any of its shares listed on a recognized stock market. (Added 77 of 1991 s. 2. Amended 5 of 2002 s. 407) (Amended 1 of 1949 s. 22; 10 of 1987 s. 2; 86 of 1992 s. 2; 5 of 2002 s. 407; 30 of 2004 s. 2) (2) A person shall not be considered to be a shadow director of a company by reason only that the directors or a majority of the directors of the company act on advice given by him in a professional capacity. (Replaced 28 of 2003 s. 2) (3) References in this Ordinance to a body corporate or to a corporation shall be construed as not including a corporation sole but as including a company incorporated outside Hong Kong. (Added 80 of 1974 s. 2) (4) For the purposes of this Ordinance, a company shall, subject to the provisions of subsection (6), be deemed to be a subsidiary of another company, if- (a) that other company- (i) controls the composition of the board of directors of the first-mentioned company; or (Amended 6 of 1984 s. 2) (ii) controls more than half of the voting power of the first-mentioned company; or (iii) holds more than half of the issued share capital of the first-mentioned company (excluding any part of it which carries no right to participate beyond a specified amount in a distribution of either profits or capital); or (b) the first-mentioned company is a subsidiary of any company which is that other company's subsidiary. (Added 80 of 1974 s. 2) (5) For the purposes of subsection (4), the composition of a company's board of directors shall be deemed to be controlled by another company if that other company by the exercise of some power exercisable by it, without the consent of any other person, can appoint or remove all or a majority of the directors, and, for the purposes of this provision, that other company shall be deemed to have power to make such an appointment if- (Amended 12 of 2005 s. 2) (a) a person cannot be appointed as a director without the exercise in his favour by that other company of such a power; or (b) a person's appointment as a director follows necessarily from his being a director or other officer of that other company. (Added 80 of 1974 s. 2) (6) In determining whether one company is a subsidiary of another company- (a) any shares held or power exercisable by that other company in a fiduciary capacity shall be treated as not held or exercisable by it; (b) subject to paragraphs (c) and (d), any shares held or power exercisable- (i) by any person as a nominee for that other company (except where that other company is concerned only in a fiduciary capacity); or (ii) by, or by a nominee for, a subsidiary of that other company, not being a subsidiary which is concerned only in a fiduciary capacity, shall be treated as held or exercisable by that other company; (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned company or of a trust deed for securing any issue of such debentures shall be disregarded; and (d) any shares held or power exercisable by, or by a nominee for, that other company or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other company if the ordinary business of that other company or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that business. (Added 80 of 1974 s. 2) (7) A reference in this Ordinance to the holding company of a company shall be read as a reference to a company of which that last-mentioned company is a subsidiary. (Added 80 of 1974 s. 2) (8) In subsections (4), (5), (6) and (7) the expression "company" (公司) includes any body corporate or corporation. (Added 4 of 1976 s. 2) (8A) In sections 152FA, 152FB and 152FD, the expression "record" (紀 錄) includes book and paper. (Added 30 of 2004 s. 2) (9) For the avoidance of doubt it is declared that a reference, in relation to any purpose of this Ordinance, to any form, matter, particular or information specified by the Registrar means, except where it is provided otherwise, specified by him for the time being for that purpose. (Added 3 of 1997 s. 3) (10) Any provision of this Ordinance that refers (in whatever words) to- (a) the founder members; (Amended 30 of 2004 s. 2) (b) the members or shareholders of a company; (c) a majority of members or shareholders of a company; or (d) a specified number or percentage of members or shareholders of a company, shall, unless the context otherwise requires, apply with necessary modifications in relation to a company that has only one founder member or that has only one person as a member or shareholder, as the case may be. (Added 28 of 2003 s. 2. Amended 30 of 2004 s. 2) (11) Any provision of this Ordinance that refers (in whatever words) to- (a) the directors of a company; (b) the board of directors of a company; (c) a majority of the directors of a company; or (d) a specified number or percentage of the directors of a company, shall, unless the context otherwise requires, apply with necessary modifications in relation to a private company that has only one director. (Added 28 of 2003 s. 2) (12) The reference to a non-Hong Kong company in the definition of "specified corporation" in subsection (1) shall, before the commencement of section 1(1) of Schedule 2 to the Companies (Amendment) Ordinance 2004 (30 of 2004), be deemed to be a reference to an oversea company as is for the time being defined under this Ordinance. (Added 30 of 2004 s. 2 & L.N. 81 of 2005) [cf. 1929 c. 23 s. 380 U.K.] COMPANIES ORDINANCE - SECT 2A Registrar to specify forms VerDate:13/02/2004 (1) The Registrar may specify a form, for use in relation to any purpose of this Ordinance- (a) unless it is provided otherwise in this Ordinance; or (b) except where a form for that purpose may be or is prescribed, and any such form may contain any particulars ancillary or incidental to that purpose. (2) In exercising, as regards any purpose of this Ordinance, the power conferred on him by subsection (1), the Registrar may, if he thinks fit, specify 2 or more different forms to be used in respect of that purpose, in different circumstances. (3) (Repealed 28 of 2003 s. 3) (Added 3 of 1997 s. 4) COMPANIES ORDINANCE - SECT 2B Construction of references to parent company, etc. VerDate:01/12/2005 (1) A reference in this Ordinance to parent company, parent undertaking or subsidiary undertaking shall be construed in accordance with the Twenty-third Schedule. (2) A reference in a provision specified under subsection (3) for the purposes of this subsection— (a) to a holding company shall be deemed to include a parent company; (b) to a subsidiary or subsidiary company shall be deemed to include a subsidiary undertaking; and (c) to shares or an undertaking shall be construed in accordance with the Twenty-third Schedule. (3) The provisions specified for the purposes of subsection (2) are sections 123, 124, 125, 126, 127, 128, 129, 129A, 129D, 133, 140, 141, 161, 161B, 161BA, 163B and 163D and the Second Schedule, the Third Schedule, the Fourth Schedule and the Tenth Schedule. (4) The Secretary for Financial Services and the Treasury may, by notice published in the Gazette, amend subsection (3). (Added 12 of 2005 s. 3) COMPANIES ORDINANCE - SECT 3 (Repealed 6 of 1984 s. 3) VerDate:30/06/1997 COMPANIES ORDINANCE - SECT 4 Mode of forming incorporated company VerDate:11/07/2008 PART I INCORPORATION OF COMPANIES AND MATTERS INCIDENTAL THERETO Memorandum of Association (1) Any one or more persons may, for any lawful purpose, by signing his or their name or names on a memorandum of association (which must be printed in the English or Chinese language) and otherwise complying with the requirements of this Ordinance in respect of registration, form an incorporated company, with or without limited liability. (Amended 6 of 1984 s. 4; 83 of 1995 s. 2; 28 of 2003 s. 4; 30 of 2004 s. 2) (2) Such a company may be either- (a) a company having, or deemed by virtue of subsection (3) to have, the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (in this Ordinance termed a company limited by shares); or (Amended 6 of 1984 s. 4) (b) a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Ordinance termed a company limited by guarantee); or (c) a company not having any limit on the liability of its members (in this Ordinance termed an unlimited company). (3) A company whose memorandum contains a condition in accordance with the fourth paragraph of the form set out in Table B in the First Schedule shall be deemed to be, and, in the case of such a company registered at the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984), always to have been, a company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them. (Added 6 of 1984 s. 4) (4) With effect from the commencement** of section 4(2) of the Companies (Amendment) Ordinance 2003 (28 of 2003), a company cannot be formed as, or become, a company limited by guarantee with a share capital. (Added 28 of 2003 s. 4) [cf. 1929 c. 23 s. 1 U.K.] ___________________________________________________________________________ ______________ Note: * Commencement date: 31 August 1984. ** Commencement date: 13 February 2004. COMPANIES ORDINANCE - SECT 5 Requirements with respect to memorandum VerDate:11/07/2008 (1) The memorandum of every company limited by shares or by guarantee must state the name of the company and- (a) if the name is in English, with "Limited" as the last word of the name; (b) if the name is in Chinese, with "有限公司" as the last 4 Chinese characters of the name; and (c) if the name is both in English and Chinese, with "Limited" as the last word of the name in English and "有限公司" as the last 4 Chinese characters of the name in Chinese respectively. (Replaced 3 of 1997 s. 5) (1A) The- (a) memorandum of- (i) an association referred to in section 21(1) must state the objects of the association; and (ii) a company which is authorized to change its name under section 21(2) must state the objects of the company; and (b) memorandum of any other company may state the objects of the company. (Added 3 of 1997 s. 5) (1B) Subsection (1A) does not affect any requirement relating to the memorandum of a company specified in or under any other enactment. (Added 3 of 1997 s. 5) (2) The memorandum of a company limited by shares or by guarantee must also state that the liability of its members is limited. (3) The memorandum of a company limited by guarantee must also state that each member undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within one year after he ceases to be a member, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and of the costs, charges, and expenses of winding up, and for adjustment of the rights of the contributories among themselves, such amount as may be required, not exceeding a specified amount. (4) In the case of a company having a share capital- (a) the memorandum must also, unless the company is an unlimited company, state the amount of share capital with which the company proposes to be registered and the division thereof into shares of a fixed amount; (b) no founder member may take less than one share; (c) each founder member must write opposite to his name the number of shares he takes. (Amended 30 of 2004 s. 2) (5) The powers of a company formed on or after the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984) shall include, unless expressly excluded or modified by the memorandum or articles, the powers set forth in the Seventh Schedule. (Added 6 of 1984 s. 5) [cf. 1929 c. 23 s. 2 U.K.] ___________________________________________________________________________ ______________ Note: * Commencement date: 31 August 1984. COMPANIES ORDINANCE - SECT 5A Powers of a company VerDate:30/06/1997 (1) A company has the capacity and the rights, powers and privileges of a natural person. (2) Without limiting subsection (1), a company may do anything which it is permitted or required to do by its memorandum or by any enactment or rule of law. (Added 3 of 1997 s. 6) COMPANIES ORDINANCE - SECT 5B Power limited by memorandum, etc. VerDate:30/06/1997 (1) A company- (a) whose objects are stated in its memorandum shall not carry on any business or do anything that it is not authorized by its memorandum to carry on or do; and (b) shall not exercise any power which is expressly excluded or modified by its memorandum or articles, contrary to such exclusion or modification. (2) A member of a company may bring proceedings to restrain the doing of an act in contravention of subsection (1); but no such proceedings shall lie in respect of an act to be done in fulfilment of any legal obligation arising under a previous act of the company. (3) An act of a company (including a transfer of property to or by the company) is not invalid by reason only that it contravenes subsection (1). (Added 3 of 1997 s. 6) COMPANIES ORDINANCE - SECT 5C Exclusion of deemed notice VerDate:30/06/1997 A person shall not be taken to have notice of any matter merely because of its being disclosed in the memorandum or articles kept by the Registrar or a return or resolution lodged with him. (Added 3 of 1997 s. 6) COMPANIES ORDINANCE - SECT 6 Signature of memorandum VerDate:11/07/2008 (1) The memorandum shall be signed by each founder member in the presence of a witness who shall attest the signature by signing his name and stating his occupation and address in legible form. (Amended 30 of 2004 s. 2) (2) The attestation requirement in subsection (1) shall not apply where the memorandum is delivered to the Registrar under section 15 in the form of an electronic record and each founder member has authenticated his signature in such manner as the Registrar may direct. (Added 30 of 2004 s. 2) (Replaced 6 of 1984 s. 6) [cf. 1948 c. 38 s. 3 U.K.] COMPANIES ORDINANCE - SECT 7 Restriction on alteration of memorandum VerDate:30/06/1997 A company may not alter its memorandum except in the cases, in the mode and to the extent for which express provision is made in this Ordinance. (Amended 6 of 1984 s.7) [cf. 1929 c.23 s.4 U.K.] COMPANIES ORDINANCE - SECT 8 Mode in which and extent to which objects may be altered VerDate:13/02/2004 (1) A company may, by special resolution of which notice has been duly given to all the members of the company (including, for the purposes of this section, members who are not entitled to such notice under the articles of the company), alter the conditions of its memorandum with respect to the objects of the company by abandoning or restricting any of those objects or by adopting any new object which could lawfully have been contained in the memorandum at the time of its registration: Provided that, where a private company passes such a resolution, an application may be made to the court in accordance with subsections (2) to (5) for the alteration to be cancelled, and if such an application is made, the alteration shall not have effect except in so far as it is confirmed by the court. (Replaced 6 of 1984 s. 8. Amended 28 of 2003 s. 5) (2) An application under this section may be made- (a) by the holders of not less in the aggregate than 5 per cent in nominal value of the company's issued share capital or any class thereof or, if the company is not limited by shares, not less than 5 per cent of the company's members; or (b) by the holders of not less than 5 per cent of the company's debentures entitling the holders to object to alterations of its objects. (3) An application under this section shall be made within 28 days after the date on which the resolution altering the company's objects was passed, and may be made on behalf of the persons entitled to make the application by such one or more of their number as they may appoint in writing for the purpose. (4) On an application under this section the court may make an order confirming the alteration either wholly or in part and on such terms and conditions as it thinks fit, and may, if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissentient members, and may give such directions and make such orders as it may think expedient for facilitating or carrying into effect any such arrangement. (5) The debentures entitling the holders to object to alterations of a company's objects shall be any debentures secured by a floating charge that were issued or first issued before 15 February 1963, or form part of the same series as any debentures so issued, and a special resolution altering a company's objects shall require the same notice to the holders of any such debentures as to members of the company. In default of any provisions regulating the giving of notice to any such debenture holders, the provisions of the company's articles regulating the giving of notice to members shall apply. (6) (Repealed 6 of 1984 s. 8) (7) Where a private company passes a resolution altering its objects- (Amended 28 of 2003 s. 5) (a) if no application is made with respect thereto under this section, it shall within 15 days after the end of the period for making such an application deliver to the Registrar a printed copy of its memorandum as altered and certified as correct by an officer of the company; and (b) if such an application is made it shall- (i) forthwith give notice of that fact to the Registrar; and (ii) within 15 days after the date of any order cancelling or confirming the alteration, deliver to the Registrar an office copy of the order and, in the case of an order confirming the alteration, a printed copy of its memorandum as altered and certified as correct by an officer of the company. (Amended 28 of 2003 s. 5) The court may by order at any time extend the time for the delivery of documents to the Registrar under paragraph (b) of this subsection for such period as the court may think proper. (7A) Where a company (not being a private company) passes a resolution altering its objects, it shall, within 15 days after the date on which the resolution was passed, deliver to the Registrar a printed copy of its memorandum as altered and certified as correct by an officer of the company. (Added 28 of 2003 s. 5) (8) If a company makes default in giving notice or delivering any document to the Registrar as required by subsection (7) or (7A), the company and every officer of the company who is in default shall be liable to a fine and, for continued default, to a daily default fine. (Amended 7 of 1990 s. 2; 28 of 2003 s. 5) (9) In relation to a resolution for altering the conditions of a company's memorandum with respect to the objects of the company passed before the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984), the provisions of this section in force immediately before such commencement shall continue to have effect as if that Ordinance had not been enacted. (Replaced 6 of 1984 s. 8) (10) In relation to a resolution for altering the conditions of a company's memorandum with respect to the objects of the company that is passed by a company (whether a private company or not) after the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984) and before the commencement** of section 5 of the Companies (Amendment) Ordinance 2003 (28 of 2003), the provisions of this section in force immediately before the commencement** of section 5 of the Companies (Amendment) Ordinance 2003 (28 of 2003) shall continue to have effect as if section 5 of that Ordinance had not been enacted. (Added 28 of 2003 s. 5) (Replaced 4 of 1963 s. 3. Amended 6 of 1984 s. 8) [cf. 1929 c. 38 s. 5 U.K.] ___________________________________________________________________________ ___ Note: * Commencement date: 31 August 1984. ** Commencement date: 13 February 2004. COMPANIES ORDINANCE - SECT 9 Articles prescribing regulations for companies VerDate:11/07/2008 Articles of Association There may in the case of a company limited by shares, and there shall in the case of a company limited by guarantee or unlimited, be registered with the memorandum, articles of association signed by the founder members and prescribing regulations for the company. (Amended 15 of 1955 s. 2 ; 30 of 2004 s. 2) [cf. 1929 c. 23 s. 6 U.K.] COMPANIES ORDINANCE - SECT 10 Regulations required in case of unlimited company or company limited by guarantee VerDate:30/06/1997 (1) In the case of an unlimited company the articles shall state the number of members with which the company proposes to be registered and, if the company has a share capital, the amount of share capital with which the company proposes to be registered. (Amended 6 of 1984 s. 9) (2) In the case of a company limited by guarantee, the articles shall state the number of members with which the company proposes to be registered. (Amended 6 of 1984 s. 9) (3) Where a company not having a share capital has increased the number of its members beyond the registered number, it shall, within 15 days after the increase was resolved on or took place, give to the Registrar notice of the increase, and the Registrar shall record the increase. If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine and, for continued default, to a daily default fine. (Amended 7 of 1990 s. 2) [cf. 1929 c. 23 s. 7 U.K.] COMPANIES ORDINANCE - SECT 11 Adoption and application of Table A VerDate:30/06/1997 (1) Articles of association may adopt all or any of the regulations contained in Table A. (2) In the case of a company limited by shares and registered after the commencement of this Ordinance, if articles are not registered, or, if articles are registered, in so far as the articles do not exclude or modify the regulations contained in Table A, those regulations shall, so far as applicable, be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles. [cf. 1929 c.23 s.8 U.K.] COMPANIES ORDINANCE - SECT 12 Printing and signature of articles VerDate:11/07/2008 (1) Articles shall- (Amended 30 of 2004 s. 2) (a) be printed in the English or Chinese language; (Amended 83 of 1995 s. 2) (b) be divided into paragraphs numbered consecutively; (c) be signed by each founder member in the presence of a witness who shall attest the signature by signing his name and stating his occupation and address in legible form. (Amended 30 of 2004 s. 2) (2) The attestation requirement in subsection (1)(c) shall not apply where the articles are delivered to the Registrar under section 15 in the form of an electronic record and each founder member has authenticated his signature in such manner as the Registrar may direct. (Added 30 of 2004 s. 2) (Replaced 6 of 1984 s. 10) [cf. 1948 c. 38 s. 9 U.K.] COMPANIES ORDINANCE - SECT 13 Alteration of articles by special resolution VerDate:11/11/1999 (1) Subject to the provisions of this Ordinance and to the conditions contained in its memorandum, a company may by special resolution alter or add to its articles. (1A) Nothing in this section shall authorize a company to make any alteration or addition in its articles which is inconsistent with any special rights attached to a class of shares in the company. (Added 6 of 1984 s. 11) (2) Any alteration or addition so made in the articles shall, subject to the provisions of this Ordinance, be as valid as if originally contained therein, and be subject in like manner to alteration by special resolution. (3) Where the articles of a company are altered, the company shall within 15 days after the alteration deliver to the Registrar a printed copy of its articles as altered and certified as correct by an officer of the company. (Added 30 of 1999 s. 3) (4) If a company makes default in delivering any document to the Registrar as required by subsection (3), the company and every officer of the company who is in default shall be liable to a fine and, for continued default, to a daily default fine. (Added 30 of 1999 s. 3) [cf. 1929 c. 23 s. 10 U.K.] COMPANIES ORDINANCE - SECT 14 Statutory forms of memorandum and articles VerDate:30/06/1997 Form of Memorandum and Articles The form of- (a) the memorandum of association of a company limited by shares; (b) the memorandum and articles of association of a company limited by guarantee and not having a share capital; (c) the memorandum and articles of association of a company limited by guarantee and having a share capital; (d) the memorandum and articles of association of an unlimited company having a share capital; shall be respectively in accordance with the forms set out in Tables B, C, D and E in the First Schedule, or as near thereto as circumstances admit. [cf. 1929 c. 23 s. 11 U.K.] COMPANIES ORDINANCE - SECT 14A Incorporation form VerDate:11/07/2008 Application to Registrar for Formation of Incorporated Company (Added 30 of 2004 s. 2) (1) A person who wishes to form an incorporated company shall apply to the Registrar in the specified form (in this Ordinance referred to as the "incorporation form"), which shall contain such particulars as are specified in the form. (2) Without prejudice to the generality of subsection (1), the incorporation form shall contain- (a) the name of the company intended to be incorporated; (b) the intended address of the company's registered office in Hong Kong; (c) a statement as to whether the company is to be a company limited by shares, a company limited by guarantee or an unlimited company; (d) if the company is to be a company limited by shares or limited by guarantee, a statement as to whether it is to be a private company; (e) if the company is to be a company limited by shares or an unlimited company having a share capital, the amount of share capital with which the company proposes to be registered and the number of shares of fixed amount into which the share capital is to be divided; (f) if the company is to be a company limited by guarantee, the amount that each person who is to be a member is to undertake to contribute to the assets of the company in the event of its being wound up; (g) the name and address of each person who is to be a founder member of the company and, if the company is to be a company limited by shares or an unlimited company having a share capital, the number of shares that each founder member is to take, on the incorporation of the company; (h) the following particulars with respect to each person who is to be a director of the company on its incorporation- (i) in the case of an individual, his present forename and surname and any former forename or surname, any alias, his usual residential address and the number of his identity card (if any) or, in the absence of such number, the number and issuing country of any passport held by him; and (ii) in the case of a body corporate, its corporate name and registered or principal office; (i) the following particulars with respect to the person who is to be the secretary of the company on its incorporation (or, where there are to be joint secretaries, with respect to each of them)- (i) in the case of an individual, his present forename and surname and any former forename or surname, any alias, his usual residential address and the number of his identity card (if any) or, in the absence of such number, the number and issuing country of any passport held by him; and (ii) in the case of a body corporate, its corporate name and registered or principal office, but where all the partners in a firm are joint secretaries, the name and principal office of the firm may be substituted for the particulars mentioned in subparagraphs (i) and (ii); (j) the statement of compliance required by section 18(2); and (k) statements signed by each person who is to be a director of the company on its incorporation stating that he consents to act in that capacity and has attained the age of 18 years. (3) The incorporation form shall be signed by any 2 founder members named in the form, or where only one founder member is named in the form, by that founder member. (4) The terms and expressions used in subsection (2)(h) and (i) shall be construed in accordance with section 158(10). (Added 30 of 2004 s. 2) COMPANIES ORDINANCE - SECT 15 Delivery and registration of incorporation form, memorandum and articles VerDate:11/07/2008 Registration (1) A duly completed incorporation form shall be delivered to the Registrar for registration together with copies of the memorandum and articles, if any, certified to be a true copy of the original by a founder member. (2) The Registrar shall retain and register the documents delivered under this section. (Replaced 30 of 2004 s. 2) COMPANIES ORDINANCE - SECT 16 Effect of registration VerDate:11/07/2008 (1) On the registration of a company's incorporation form and copies of its memorandum and articles, if any, certified under section 15, the Registrar shall issue a certificate, with his signature or his printed signature, certifying that the company is incorporated and, in the case of a limited company, that the company is limited. (Amended 83 of 1995 s. 3) (2) From the date of incorporation mentioned in the certificate of incorporation, the founder members, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Ordinance. (Amended 30 of 2004 s. 2) [cf. 1929 c. 23 s. 13 U.K.] COMPANIES ORDINANCE - SECT 17 Power of company to hold lands VerDate:30/06/1997 (1) Every company incorporated under this Ordinance shall have power to acquire, hold and dispose of land. (Replaced 74 of 1974 s. 3) (2) For the purposes of this section, "land" (土地) includes any estate or interest in land, buildings, messuages and tenements of what nature or kind soever. (Replaced 25 of 1958 s. 2) [cf. 1929 c. 23 s. 14 U.K.] "land" (土地) COMPANIES ORDINANCE - SECT 18 Conclusiveness of certificate of incorporation VerDate:11/07/2008 (1) A certificate of incorporation issued by the Registrar in respect of any association shall be conclusive evidence that all the requirements of this Ordinance in respect of registration and of matters precedent and incidental thereto have been complied with, and that the association is a company authorized to be registered and duly registered under this Ordinance. (Amended 83 of 1995 s. 4) (2) A statement of compliance in the incorporation form, certifying the company's compliance with all or any of the requirements referred to in subsection (1) and signed by a founder member or a person named in the incorporation form as a director or secretary of the company, shall be produced to the Registrar and the Registrar may accept the statement as sufficient evidence of compliance. (Replaced 30 of 2004 s. 2) [cf. 1929 c. 23 s. 15 U.K.] COMPANIES ORDINANCE - SECT 19 Unlimited companies may be re-registered as limited VerDate:30/06/1997 (1) A company which, at or after the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984), is registered as unlimited may be re-registered as limited if a special resolution that it should be so re-registered (complying with the requirement of subsection (2)) is passed and an application in that behalf, framed in the specified form and signed by a director or by the secretary of the company, is lodged with the Registrar together with the documents mentioned in subsection (3) not earlier than the day on which the copy of the resolution forwarded to him in pursuance of section 117 is received by him; and the Eighth Schedule shall have effect for the purposes of this section as if for references in that Schedule to the registration of a company there were substituted references to its re-registration under this section. (Amended 3 of 1997 s. 7) (2) The said requirement is that the resolution- (a) shall state the manner in which the liability of the members of the company is to be limited and, if the company is to have a share capital, what that capital is to be; and (b) shall- (i) if the company is to be limited by guarantee, provide for the making of such alterations in its memorandum and such alterations in and additions to its articles as are requisite to bring the memorandum and articles, both in substance and in form, into conformity with the requirements of this Ordinance with respect to the substance and form of the memorandum and articles of a company to be formed thereunder whose condition as to mode of limitation of liability and possession of a share capital (or want of it) will be similar to the condition of the company as to those matters which will obtain upon its re-registration; (ii) if the company is to be limited by shares, provide for the making of such alterations in its memorandum as are requisite to bring it, both in substance and in form, into conformity with the requirements of this Ordinance with respect to the substance and form of the memorandum of a company to be formed thereunder as a company so limited, and such alterations in and additions to its articles as are requisite in the circumstances. (3) The documents referred to in subsection (1) are a printed copy of the memorandum as altered in pursuance of the resolution and a printed copy of the articles as so altered. (4) The Registrar shall retain the application and other documents lodged with him under subsection (1) and shall issue to the company a certificate of incorporation appropriate to the status to be assumed by the company by virtue of this section; and upon the issue of the certificate- (a) the status of the company shall, by virtue of the issue, be changed from unlimited to limited; and (b) the alterations in the memorandum specified in the resolution and the alterations in, and additions to, the articles so specified shall, notwithstanding anything in this Ordinance, take effect. (5) A certificate of incorporation issued by virtue of this section shall be conclusive evidence that the requirements of this section with respect to re-registration and of matters precedent and incidental thereto have been complied with, and that the company was authorized to be re-registered under this Ordinance in pursuance of this section and was duly so re-registered. (6) In the event of the winding up of a company re-registered in pursuance of this section, the following provisions shall have effect- (a) notwithstanding section 170(1)(a), a past member of the company who was a member thereof at the time of re-registration shall, if the winding up commences within the period of 3 years beginning with the day on which the company is re-registered, be liable to contribute to the assets of the company in respect of debts and liabilities of its contracted before that time; (b) where no persons who were members of the company at that time are existing members of the company, a person who, at that time, was a present or past member thereof shall, subject to section 170(1)(a) and paragraph (a) of this subsection, but notwithstanding section 170(1)(c), be liable to contribute as aforesaid notwithstanding that the existing members have satisfied the contributions required to be made by them in pursuance of this Ordinance; (c) notwithstanding section 170(1)(d) and (e), there shall be no limit on the amount which a person who, at that time, was a past or present member of the company is liable to contribute as aforesaid. (Replaced 6 of 1984 s. 12) [cf. 1967 c. 81 s. 44 U.K.] ___________________________________________________________________ Note: * Commencement date: 31 August 1984. COMPANIES ORDINANCE - SECT 20 Restriction on registration of companies by certain names VerDate:01/07/1997 Adaptation amendments retroactively made - see 23 of 1999 s. 3 Provisions with respect to Names of Companies (1) A company shall not be registered by a name- (a) which is the same as a name appearing in the Registrar's index of company names; (b) which is the same as that of a body corporate incorporated or established under an Ordinance; (c) the use of which by the company would, in the opinion of the Chief Executive, constitute a criminal offence; or (d) which, in the opinion of the Chief Executive, is offensive or otherwise contrary to the public interest. (2) Except with the consent of the Chief Executive no company shall be registered by a name which- (a) in the opinion of the Chief Executive, would be likely to give the impression that the company is connected in any way with the Central People's Government or the Government of Hong Kong or any department of either Government; or (b) includes any word or expression for the time being specified in an order made under section 22B. (3) In determining for the purposes of subsection (1)(a) or (b) whether one name is the same as another- (a) the following shall be disregarded- (i) the definite article, where it is the first word of the name; (ii) the following words and expressions where they appear at the end of the name, that is to say- (A) "company"; (B) "and company"; (C) "company limited"; (D) "and company limited"; (E) "limited"; (F) "unlimited"; (G) "public limited company"; (H) "公司"; (Added 3 of 1997 s. 8) (I) "有限公司"; (Added 3 of 1997 s. 8) (J) "無限公司"; and (Added 3 of 1997 s. 8) (K) "公眾有限公司"; (Added 3 of 1997 s. 8) (iii) abbreviations of any of the words or expressions referred to in subparagraph (ii) where they appear at the end of the name; and (iv) type and case of letters, accents, spaces between letters and punctuation marks; (Amended 3 of 1997 s. 8) (b) "and" and "&", "Hong Kong", "Hongkong" and "HK", and "Far East" and "FE" are respectively to be taken as the same; (c) two different Chinese characters shall be regarded as the same if the Registrar is satisfied that having regard to the usage of the two Chinese characters in Hong Kong, they can reasonably be used interchangeably. (Added 3 of 1997 s. 8) (Replaced 60 of 1990 s. 3. Amended 23 of 1999 s. 3) [cf. 1985 c. 6 s. 26 U.K.] COMPANIES ORDINANCE - SECT 20A (Repealed 60 of 1990 s. 4) VerDate:30/06/1997 (Repealed 60 of 1990 s. 4) ___________________________________________________________________________ ___ Note: See 60 of 1990 s. 11. COMPANIES ORDINANCE - SECT 21 Power to dispense with certain words in name of charitable and other companies VerDate:01/07/2000 (1) Where it is proved to the satisfaction of the Registrar that an association about to be formed as a limited company is to be formed for promoting commerce, art, science, religion, charity or any other useful object, and intends to apply its profits, if any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the Registrar may by licence direct that the association may be registered as a company with limited liability, without the addition of- (a) if the name of the association is in English, the word "Limited" to its name; (b) if the name of the association is in Chinese, the expression in Chinese "有限公司" to its name; and (c) if the name of the association is both in English and Chinese, such word and expression to its name in English and Chinese respectively, and the association may be registered accordingly and shall, on registration, enjoy all the privileges and (subject to the provisions of this section) be subject to all the obligations of limited companies. (Replaced 3 of 1997 s. 9) (2) Where it is proved to the satisfaction of the Registrar- (a) that the objects of a company registered under this Ordinance as a limited company are restricted to those specified in subsection (1) and to objects incidental or conducive thereto; and (b) that by its constitution the company is required to apply its profits, if any, or other income in promoting its objects and is prohibited from paying any dividend to its members, the Registrar may by licence authorize the company to make by special resolution a change in its name including or consisting of the omission of the word "Limited" or the expression in Chinese "有限公司" or both such word and expression, as the case may be, and subsections (4) and (5) of section 22 shall apply to a change of name under this subsection as they apply to a change of name under that section. (Amended 3 of 1997 s. 9) (3) A licence by the Registrar under this section may be granted on such conditions and subject to such regulations as the Registrar thinks fit, and those conditions and regulations shall be binding on the body to which the licence is granted, and (where the grant is under subsection (1)) shall, if the Registrar so directs, be inserted in the memorandum and articles, or in one of those documents. (4) A body to which a licence is granted under this section shall be exempted from the provisions of this Ordinance relating to the use of the word "Limited" or the expression in Chinese "有限公司" or both such word and expression, as the case may be, as any part of its name, the publishing of its name and the sending of lists of members to the Registrar. (Amended 3 of 1997 s. 9) (5) A licence under this section may at any time be revoked by the Registrar, and upon revocation the Registrar shall, where the name upon the register of the body to which it was granted is- (a) in English, enter the word "Limited" at the end of that name; (b) in Chinese, enter the expression in Chinese "有限公司" at the end of that name; or (c) both in English and Chinese, enter such word and expression at the end of its name in English and Chinese respectively, and the body shall cease to enjoy the exemptions and privileges or, as the case may be, the exemptions granted by this section: Provided that before a licence is so revoked, the Registrar shall give to the body notice in writing of his intention, and shall afford it an opportunity of being heard in opposition to the revocation. (Amended 3 of 1997 s. 9) (6) A body in respect of which a licence under this section is in force shall not have power to alter its memorandum or articles unless- (a) (Repealed 46 of 2000 s. 3) (b) the proposed alteration is approved in writing by the Registrar. (7) Where a body in respect of which a licence under this section is in force alters its memorandum or articles, the Registrar may (unless he sees fit to revoke the licence) vary the licence by making it subject to such conditions and regulations as the Registrar thinks fit, in lieu of or in addition to the conditions and regulations, if any, to which the licence was formerly subject. (8) Where a licence granted under this section to a body the name of which contains the words "Chamber of Commerce" or the expression in Chinese "總商會" is revoked, the body shall within a period of 6 weeks from the date of revocation or such longer period as the Registrar may think fit to allow, change its name to a name which does not contain those words, and - (Amended 3 of 1997 s. 9) (a) the notice to be given under the proviso to subsection (5) to that body shall include a statement to the effect of the foregoing provisions of this subsection; and (b) subsections (4) and (5) of section 22 shall apply to a change of name under this subsection as they apply to a change of name under that section. (9) If a body referred to in subsection (8) makes default in complying with the requirements of that subsection, it shall be liable to a fine and, for continued default, to a daily default fine. (Amended 7 of 1990 s. 2) (10) Without prejudice to section 23 of the Interpretation and General Clauses Ordinance (Cap 1), this section shall apply in relation to any body in respect of which a licence (being a licence granted under this Ordinance in respect of the registration of that body as a company with limited liability without the addition of the word "Limited" to its name) is in force at the commencement of the Companies (Amendment) Ordinance 1978 (51 of 1978) as if such licence had been granted under this section after the commencement of that Ordinance. (Replaced 51 of 1978 s. 2) [cf. 1948 c. 38 s. 19 U.K.] COMPANIES ORDINANCE - SECT 22 Change of name VerDate:13/02/2004 (1) A company may by special resolution change its name. (1A) Where a company passes a special resolution changing its name, it shall, within 15 days after the passing of the resolution, give notice in the specified form of the change of its name to the Registrar. (Added 28 of 2003 s. 7) (1B) If a company fails to comply with subsection (1A), the company and every officer of the company who is in default is liable to a fine and, for continued default, to a daily default fine. (Added 28 of 2003 s. 7) (2) Where a company has been registered by a name which- (a) is the same as or, in the opinion of the Registrar, too like a name appearing at the time of the registration in the Registrar's index of company names; (b) is the same as or, in the opinion of the Registrar, too like a name which should have appeared in that index at that time; or (c) is the same as or, in the opinion of the Registrar, too like the name of a body corporate incorporated or established under any Ordinance at the time of the registration, the Registrar may within 12 months of that time, in writing, direct the company to change its name within such period as he may specify. (3) Section 20(3) applies in determining under subsection (2) whether a name is the same as or too like another. (4) If it appears to the Registrar that misleading information has been given for the purpose of a company's registration by a particular name, or that undertakings or assurances have been given for that purpose and have not been fulfilled, he may within 5 years of the date of its registration by that name direct, in writing, the company to change its name within such period as he may specify. (5) Where a direction is given under subsection (2) or (4), the Registrar may by a further direction in writing extend the period within which the company is to change its name, at any time before the end of that period. (6) A company which fails to comply with a direction under this section and every officer of the company who is in default shall be liable to- (a) a fine and, in the case of an individual, imprisonment; and (b) for continued default, a daily default fine. (7) Where a company gives notice of a change of its name to the Registrar under subsection (1A), the Registrar shall, subject to section 20- (a) enter the new name on the register in place of the former name; and (b) issue a certificate of change of name, and the change of name shall have effect from the date on which the certificate is issued. (Replaced 28 of 2003 s. 7) (8) A change of name by a company under this section does not affect any rights or obligations of the company or render defective any legal proceedings by or against it and any legal proceedings that could have been commenced or continued against it by its former name may be commenced or continued against it by its new name. (Replaced 60 of 1990 s. 5) [cf. 1985 c. 6 s. 28 U.K.] COMPANIES ORDINANCE - SECT 22A Power of Registrar to require company to abandon misleading name VerDate:30/06/1997 (1) If in the opinion of the Registrar the name by which a company is registered gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public, he may direct it to change its name. (2) A direction given under this section to a company shall, if not duly made the subject of an application under subsection (3) to the court, be complied with within a period of 6 weeks from the date of the direction or such longer period as the Registrar may think fit to allow. (3) A company to which a direction is given under this section may, within a period of 3 weeks from the date of the direction, apply to the court to set the direction aside, and the court may set it aside or confirm it; and if it confirms it, it shall specify a period within which it shall be complied with. (4) If a company makes default in complying with a direction under this section, it shall be liable to a fine and, for continued default, to a daily default fine. (Amended 7 of 1990 s. 2) (5) Subsections (4) and (5) of section 22 shall apply in relation to a change of name under this section as they apply in relation to a change of name under that section. (Added 6 of 1984 s.13) [cf. 1967 c.81 s.46 U.K.] COMPANIES ORDINANCE - SECT 22B Specification of names by Chief Executive VerDate:13/02/2004 (1) The Chief Executive may by order- (a) specify words or expressions for the registration of which as, or as part of, a company's name the approval of the Chief Executive is required under section 20(2)(b); and (b) in relation to any such word or expression, specify a Government department or other body as the relevant body for the purposes of subsection (2). (Amended 23 of 1999 s. 3) (2) Where a company or the promoter of a proposed company proposes to have as, or as part of, its name any word or expression referred to in subsection (1), a request shall be made in writing by the company or the promoter to any body specified under subsection (1)(b) as the relevant body in relation to such word or expression, to indicate whether it has any objection to the proposed name and the reasons for any such objection. (3) Where a company or a promoter makes a request under subsection (2) the company secretary or the promoter shall deliver in writing to the Registrar a statement that such request has been made to the body referred to in subsection (2) together with a copy of any written reply received from that body and, in the case of a change of name, the notice of change of name required by section 22(1A). (Amended 28 of 2003 s. 8) (4) Section 305 (inspection, production and evidence of documents kept by Registrar) shall not apply to any document delivered under subsection (3). (5) An order under this section may contain such transitional provisions and savings as the Chief Executive may consider appropriate, and may make different provisions for different cases or different classes of cases. (Amended 23 of 1999 s. 3) (Added 60 of 1990 s. 6) [cf. 1985 c. 6 s. 29 U.K.] COMPANIES ORDINANCE - SECT 22C Registrar's index of company names VerDate:01/07/1997 Adaptation amendments retroactively made - see 23 of 1999 s. 3 (1) The Registrar shall keep an index of the names of the following- (a) every company; and (b) every company incorporated outside Hong Kong which has complied with section 333. (2) The Chief Executive may by order amend subsection (1) so as to add to it any other body or class of body whether incorporated or unincorporated. (Amended 23 of 1999 s. 3) (Added 60 of 1990 s. 6) [cf. 1985 c. 6 s. 714 U.K.] COMPANIES ORDINANCE - SECT 23 Effect of memorandum and articles VerDate:13/02/2004 General Provisions with respect to Memorandum and Articles (1) Subject to the provisions of this Ordinance, the memorandum and articles shall, when registered, have effect as a contract under seal- (a) between the company and each member; and (b) between a member and each other member, and shall be deemed to contain covenants on the part of the company and of each member to observe all the provisions of the memorandum and articles. (Replaced 28 of 2003 s. 9) (1A) Without limiting the generality of subsection (1), the memorandum and articles shall, when registered, be enforceable by the company against each member and by a member against the company and against each other member. (Added 28 of 2003 s. 9) (2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company, and be of the nature of a specialty debt. [cf. 1929 c. 23 s. 20 U.K.] COMPANIES ORDINANCE - SECT 24 Provision as to memorandum and articles of companies limited by guarantee VerDate:30/06/1997 (1) In the case of a company limited by guarantee and not having a share capital, and registered on or after 1 January 1912, every provision in the memorandum or articles or in any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member shall be void. (2) For the purpose of the provisions of this Ordinance relating to the memorandum of a company limited by guarantee and of this section, every provision in the memorandum or articles, or in any resolution, of a company limited by guarantee and registered on or after the date aforesaid, purporting to divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital, notwithstanding that the nominal amount or number of the shares or interests is not specified thereby. [cf. 1929 c. 23 s. 21 U.K.] COMPANIES ORDINANCE - SECT 25 Alterations in memorandum or articles increasing liability to contribute to share capital not to bind existing members without consent VerDate:30/06/1997 Notwithstanding anything in the memorandum or articles of a company, no member of the company shall be bound by an alteration made in the memorandum or articles after the date on which he became a member, if and so far as the alteration requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made, or in any way increases his liability as at that date to contribute to the share capital of, or otherwise to pay money to, the company: Provided that this section shall not apply in any case where the member agrees in writing, either before or after the alteration is made, to be bound thereby. [cf. 1929 c. 23 s. 22 U.K.] COMPANIES ORDINANCE - SECT 25A Power to alter conditions in memorandum which could have been contained in articles VerDate:13/02/2004 (1) Subject to the provisions of sections 25 and 168A, any condition contained in a company's memorandum which could lawfully have been contained in articles of association instead of in the memorandum may, subject to the provisions of this section, be altered by the company by special resolution: Provided that, where a private company passes such a resolution, an application may be made to the court for the alteration to be cancelled, and if such an application is made, the alteration shall not have effect except in so far as it is confirmed by the court. (Amended 28 of 2003 s. 10) (2) This section shall not apply where the memorandum itself provides for or prohibits the alteration of all or any of the said conditions, and shall not authorize any variation or abrogation of the special rights of any class of members. (3) Where a private company passes a resolution under this section altering any condition contained in its memorandum, subsections (2)(a), (3), (4), (7) and (8) of section 8 shall apply in relation to the alteration and to any application made under this section in the same manner as they apply in relation to alterations and to applications made under section 8. (Replaced 28 of 2003 s. 10) (3A) Where a company (not being a private company) passes a resolution under this section altering any condition contained in its memorandum, subsections (7A) and (8) of section 8 shall apply in relation to the alteration made under this section in the same manner as they apply in relation to alterations made under section 8. (Added 28 of 2003 s. 10) (4) This section shall apply to a company's memorandum whether registered before or after the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984). (5) In relation to a resolution for altering any condition contained in a company's memorandum that is passed by a company (whether a private company or not) under this section before the commencement** of section 10 of the Companies (Amendment) Ordinance 2003 (28 of 2003), the provisions of this section in force immediately before that commencement shall continue to have effect as if section 10 of that Ordinance had not been enacted. (Added 28 of 2003 s. 10) (Added 6 of 1984 s. 14) [cf. 1948 c. 38 s. 23 U.K.] ___________________________________________________________________________ _____ Note: * Commencement date: 31 August 1984. ** Commencement date: 13 February 2004. COMPANIES ORDINANCE - SECT 26 Copies of memorandum and articles to be given to members VerDate:30/06/1997 (1) A company shall, on being so required by any member, send to him a copy of the memorandum and of the articles, if any, and a copy of any Ordinance which alters the memorandum, subject to payment, in the case of a copy of the memorandum and of the articles, of $5 or such less sum as the company may prescribe, and, in the case of a copy of an Ordinance, of such sum not exceeding the published price thereof as the company may require. (2) If a company makes default in complying with this section, the company and every officer of the company who is in default shall be liable for each offence to a fine. (Amended 7 of 1990 s. 2) (Amended 6 of 1984 s. 15) [cf. 1929 c. 23 s. 23 U.K.] COMPANIES ORDINANCE - SECT 27 Issued copies of memorandum to embody alterations VerDate:30/06/1997 (1) Where an alteration is made in the memorandum of a company, every copy of the memorandum issued after the date of the alteration shall be in accordance with the alteration. (2) If, where any such alteration has been made, the company at any time after the date of the alteration issues any copies of the memorandum which are not in accordance with the alteration, the company and every officer of the company who is in default shall be liable for each offence to a fine. (Amended 22 of 1950 Schedule; 6 of 1984 s. 16; 7 of 1990 s. 2) [cf. 1929 c. 23 s. 24 U.K.] COMPANIES ORDINANCE - SECT 28 Definition of member VerDate:11/07/2008 Membership of Company (1) The founder members of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members. (Amended 30 of 2004 s. 2) (2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company. [cf. 1929 c. 23 s. 25 U.K.] COMPANIES ORDINANCE - SECT 28A Membership of holding company VerDate:30/06/1997 (1) Subject to the provisions of this section, a body corporate cannot be a member of a company which is its holding company, and any allotment or transfer of shares in a company to its subsidiary shall be void. (2) Nothing in this section shall apply where the subsidiary is concerned as personal representative, or where it is concerned as trustee, unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money. (3) This section shall not prevent a subsidiary which was, at the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984), a member of its holding company, from continuing to be a member. (4) This section shall not prevent a company which at the date it becomes a subsidiary of another company is a member of that other company, from continuing to be a member. (5) This section shall not prevent a subsidiary from becoming a member of its holding company, or prevent an allotment to a subsidiary of shares in its holding company, by or by virtue of the exercise by the subsidiary of any rights of conversion attached to any shares in its holding company or under any debentures thereof held by the subsidiary at the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984). (6) This section shall not prevent a subsidiary which is a member of its holding company from accepting and holding further shares in its holding company if such further shares are allotted to it as fully paid up in consequence of a capitalization of reserves or profits by such holding company. (7) Subject to subsection (2), a subsidiary which is a member of its holding company shall have no right to vote at meetings of the holding company or any class of members thereof. (8) Subject to subsection (2), this section shall apply in relation to a nominee for a body corporate which is a subsidiary, as if references therein to such a body corporate included references to a nominee for it. (9) Where a holding company makes an offer of shares to its members it may sell, on behalf of a subsidiary, any such shares which the subsidiary could, but for this section, have taken by virtue of shares already held by it in the holding company, and pay the proceeds of the sale to the subsidiary. (10) In relation to a company limited by guarantee or unlimited which is a holding company, the reference in this section to shares, whether or not it has a share capital, shall be construed as including a reference to the interest of its members as such, whatever the form of that interest. (Added 6 of 1984 s. 17) [cf. 1984 c. 38 s. 27 U.K.] ___________________________________________________________________________ ___ Note: * Commencement date: 31 August 1984. COMPANIES ORDINANCE - SECT 29 Meaning of private company VerDate:30/06/1997 Private Companies (1) For the purposes of this Ordinance, the expression "private company" (私人公司) means a company which by its articles- (a) restricts the right to transfer its shares; and (b) limits the number of its members to 50, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were while in that employment, and have continued after the determination of that employment to be, members of the company; and (c) prohibits any invitation to the public to subscribe for any shares or debentures of the company. (2) Where 2 or more persons hold one or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member. [cf. 1929 c. 23 s. 26 U.K.] "private company" (私人公司) COMPANIES ORDINANCE - SECT 30 Circumstances in which company ceases to be or to enjoy privileges of a private company VerDate:01/07/1997 Adaptation amendments retroactively made - see 23 of 1999 s. 3 (1) If a company, being a private company, alters its articles in such manner that they no longer include the provisions which, under section 29, are required to be included in the articles of a company in order to constitute it a private company, the company shall, as on the date of the alteration, cease to be a private company and shall, within a period of 14 days after the said date, deliver to the Registrar for registration a prospectus or a statement in lieu of prospectus in the form and containing the particulars set out in Part I of the Second Schedule and, in the cases mentioned in Part II of that Schedule setting out the reports specified therein, and the said Parts I and II shall have effect subject to the provisions contained in Part III of that Schedule. (Amended 78 of 1972 s. 3) (1A) Every statement in lieu of prospectus delivered under subsection (1) shall, where the persons making any report required by Part II of the Second Schedule have made therein or have, without giving the reasons, indicated therein any such adjustments as are mentioned in paragraph 5 of the Second Schedule, have endorsed thereon or attached thereto a written statement signed by those persons setting out the adjustments and giving the reasons therefor. (Added 78 of 1972 s. 3) (2) If default is made in complying with subsection (1) or (1A), the company and every officer of the company who is in default shall be liable to a default fine. (Amended 78 of 1972 s. 3; 7 of 1990 s. 2) (2A) Where a statement in lieu of prospectus delivered to the Registrar under subsection (1) includes any untrue statement, any person who authorized the delivery of the statement, in lieu of prospectus for registration shall be liable to imprisonment and a fine, unless he proves either that the untrue statement was immaterial or that he had reasonable ground to believe and did up to the time of the delivery for registration of the statement in lieu of prospectus believe that the untrue statement was true. (Added 78 of 1972 s.3. Amended 7 of 1990 s. 2) (2B) For the purposes of this section- (a) a statement included in a statement in lieu of prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included; and (b) a statement shall be deemed to be included in a statement in lieu of prospectus if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein. (Added 78 of 1972 s. 3) (2C) The Chief Executive in Council may by regulation amend the Second Schedule. (Added 78 of 1972 s. 3. Amended 23 of 1999 s. 3) (3) Where the articles of a company include the provisions aforesaid but default is made in complying with any of those provisions, the company shall cease to be entitled to the privileges and exemptions conferred on private companies under the provisions contained in sections 109(3) and 141D, and thereupon the said provisions shall apply to the company as if it were not a private company: (Amended 6 of 1984 s. 18) Provided that the court, on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any other person interested and on such terms and conditions as seem to the court just and expedient, order that the company be relieved from such consequences as aforesaid. [cf. 1929 c. 23 s. 27 U.K.] COMPANIES ORDINANCE - SECT 31 (Repealed 28 of 2003 s. 12) VerDate:13/02/2004 (Subheading repealed 28 of 2003 s. 11) COMPANIES ORDINANCE - SECT 32 Form of contracts VerDate:30/06/1997 Contracts, etc. (1) Contracts on behalf of a company may be made as follows- (Amended L.N. 223 of 1976) (a) a contract which if made between private persons would be by law required to be in writing and under seal, may be made on behalf of the company in writing under the common seal of the company; (Amended 6 of 1984 s. 20) (b) a contract which if made between private persons would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied; (c) a contract which if made between private persons would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under its authority, express or implied. (2) A contract made according to this section shall be effectual in law, and shall bind the company and its successors and all other parties thereto. (3) A contract made according to this section may be varied or discharged in the same manner in which it is authorized by this section to be made. [cf. 1929 c. 23 s. 29 U.K.] COMPANIES ORDINANCE - SECT 32A Pre-incorporation contracts VerDate:30/06/1997 (1) Where a contract purports to have been made in the name or on behalf of a company at a time when the company has not been incorporated- (a) subject to subsection (2) and any express agreement to the contrary, the contract shall have effect as a contract entered into by the person purporting to act for the company or as agent for it, and he shall be personally liable on and entitled to enforce the contract accordingly; (b) the company may, after incorporation, ratify the contract to the same extent as if it had already been incorporated at that time and as if the contract had been entered into on its behalf by an agent acting without its authority. (2) Where a contract is ratified by virtue of this section, the person who purported to act for or on behalf of the company in making the contract shall not thereafter be under any greater liability than he would have been if he had entered into the contract on behalf of the company as an agent acting without its authority and after its incorporation. (Added 6 of 1984 s. 21) [cf. 1972 c. 68 s. 9 U.K.] COMPANIES ORDINANCE - SECT 33 Bills of exchange and promissory notes VerDate:30/06/1997 A bill of exchange or promissory note shall be deemed to have been made, accepted, or endorsed on behalf of a company if made, accepted, or endorsed in the name of, or by or on behalf or on account of, the company by any person acting under its authority. [cf. 1929 c. 23 s. 30 U.K.] COMPANIES ORDINANCE - SECT 34 Execution of deeds abroad VerDate:30/06/1997 (1) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place not situate in Hong Kong. (Amended 1 of 1949 s. 6; 6 of 1984 s. 259) (2) A deed signed by such an attorney on behalf of the company and under his seal shall bind the company and have the same effect as if it were under its common seal. [cf. 1929 c. 23 s. 31 U.K.] COMPANIES ORDINANCE - SECT 35 Power for company to have official seal for use abroad VerDate:30/06/1997 (1) A company whose objects require or comprise the transaction of business outside Hong Kong, may, if authorized by its articles, have for use in any territory, district, or place not situate in Hong Kong, an official seal, which shall be a facsimile of the common seal of the company, with the addition on its face of the name of every territory, district, or place where it is to be used. (Amended 1 of 1949 s. 7; 6 of 1984 s.259) (2) A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company. (3) A company having an official seal for use in any such territory, district or place may, by writing under its common seal, authorize any person appointed for the purpose in that territory, district or place, to affix the official seal to any deed or other document to which the company is party in that territory, district or place. (4) The authority of any such agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or if no period is there mentioned, then until notice of the revocation or determination of the agent's authority has been given to the person dealing with him. (5) The person affixing any such official seal shall, by writing under his hand, certify on the deed or other instrument, to which the seal is affixed, the date on which and the place at which it is affixed. [cf. 1929 c. 23 s. 32 U.K.] COMPANIES ORDINANCE - SECT 36 Authentication of documents VerDate:30/06/1997 Authentication of Documents A document or proceeding requiring authentication by a company may be signed by a director, secretary, or other authorized officer of the company, and need not be under its common seal. [cf. 1929 c. 23 s. 33 U.K.] COMPANIES ORDINANCE - SECT 37 Dating of prospectus VerDate:30/06/1997 PART II SHARE CAPITAL AND DEBENTURES Prospectus A prospectus issued by or on behalf of a company shall be dated, and that date shall, unless the contrary is proved, be taken as the date of publication of the prospectus. (Amended 78 of 1972 s. 4) [cf. 1929 c. 23 s. 34 U.K.] COMPANIES ORDINANCE - SECT 38 Specific requirements as to particulars in prospectus VerDate:03/12/2004 (1) Subject to the provisions of section 38A, every prospectus issued by or on behalf of a company must either be in the English language and contain a Chinese translation or be in the Chinese language and contain an English translation, and must state the matters specified in Part I of the Third Schedule and set out the reports specified in Part II of that Schedule, and the said Parts I and II shall have effect subject to the provisions contained in Part III of the said Schedule. (Replaced 78 of 1972 s. 5. Amended 83 of 1995 s. 5) (1A) Every prospectus to which subsection (1) applies must contain a statement specified in Part 1 of the Eighteenth Schedule. (Added 78 of 1972 s. 5. Amended 83 of 1995 s. 5; 23 of 2004 s. 56; 30 of 2004 s. 2) (1B) If any prospectus is issued which does not comply with or contravenes the requirements of subsections (1) and (1A), the company and every person who is knowingly a party to the issue thereof shall be liable to a fine. (Added 78 of 1972 s. 5. Amended 7 of 1990 s. 2) (2) A condition requiring or binding an applicant for shares in or debentures of a company to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document, or matter not specifically referred to in the prospectus, shall be void. (3) Subject to the provisions of section 38A, it shall not be lawful to issue any form of application for shares in or debentures of a company unless the form is issued with a prospectus which complies with the requirements of this section: (Amended 78 of 1972 s. 5) Provided that this subsection shall not apply if it is shown that the form of application was issued- (Amended 30 of 2004 s. 2) (a) in connexion with a bona fide invitation to a person to enter into an underwriting agreement with respect to the shares or debentures; (b) in relation to shares or debentures which were not offered to the public; or (c) in connexion with an offer specified in Part 1 of the Seventeenth Schedule as read with the other Parts of that Schedule. (Added 30 of 2004 s. 2) If any person acts in contravention of the provisions of this subsection, he shall be liable to a fine. (Amended 6 of 1984 s. 259; 7 of 1990 s. 2; 30 of 2004 s. 2) (3A) This section shall not prevent the publication of the English version only of a prospectus in an English language newspaper or the Chinese version only in a Chinese language newspaper, nor the publication in such newspaper together with the prospectus of a form of application relating thereto. (Added 6 of 1984 s. 22) (4) In the event of non-compliance with or contravention of any of the requirements of this section, a director or other person responsible for the prospectus shall not incur any liability by reason of the non-compliance or contravention, if- (a) as regards any matter not disclosed, he proves that he was not cognisant thereof; or (b) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part; or (c) the non-compliance or contravention was in respect of matters which in the opinion of the court dealing with the case were immaterial or was otherwise such as ought, in the opinion of that court, having regard to all the circumstances of the case, reasonably to be excused: Provided that, in the event of failure to include in a prospectus a statement with respect to the matters specified in paragraph 19 of Part I of the Third Schedule, no director or other person shall incur any liability in respect of the failure unless it be proved that he had knowledge of the matters not disclosed. (Amended 78 of 1972 s. 5) (5) This section shall not apply- (a) to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons; or (b) to the issue of a prospectus or form of application relating to shares or debentures which are or are to be in all respects uniform with shares or debentures previously issued and for the time being listed on a recognized stock market; (Amended 6 of 1984 s. 259; 10 of 1987 s. 11; 5 of 2002 s. 407) but, subject as aforesaid, this section shall apply to a prospectus or a form of application whether issued on the formation of a company or subsequently. (Replaced 78 of 1972 s. 5) (6) Nothing in this section shall limit or diminish any liability which any person may incur under the general law or this Ordinance apart from this section. (7) It is hereby declared that the provisions of the Third Schedule applied by this section are also applied to a guarantor corporation in relation to an offer or invitation to the public to subscribe for or purchase debentures of a company. (Replaced 30 of 2004 s. 2) (8) In subsection (7), "guarantor corporation" (提供擔保的法團), in relation to an offer or invitation to the public to subscribe for or purchase debentures of a company, means a corporation that guarantees or agrees to guarantee- (a) the repayment of any money received or to be received by the company in response to the offer or invitation; (b) any other obligations of the company under or in respect of the debentures; or (c) in favour of the company any amount- (i) to which the company is entitled; and (ii) receipt of which, as stated in the prospectus concerned, is intended to enable the company to wholly or partly discharge any of its obligations under or in respect of the debentures. (Added 30 of 2004 s. 2) [cf. 1929 c. 23 s. 35 U.K.] "guarantor corporation" (提供擔保的法團) COMPANIES ORDINANCE - SECT 38A Exemption of certain persons and prospectuses from compliance with certain requirements VerDate:03/12/2004 "relevant provisions" (有關條文) (1) Where it is proposed to offer any shares in or debentures of a company to the public by a prospectus or class of prospectuses issued generally, there may, on the request of the applicant, and subject to such conditions (if any) as the Commission thinks fit, be issued by the Commission a certificate of exemption from compliance with any or all of the requirements of the relevant provisions if, having regard to the circumstances, the Commission considers that the exemption will not prejudice the interest of the investing public and compliance with any or all of those requirements- (a) would be irrelevant or unduly burdensome; or (b) is otherwise unnecessary or inappropriate. (Replaced 30 of 2004 s. 2) (2) Whether or not a request referred to in subsection (1) has been made, the Commission may, by notice published in the Gazette, and subject to such conditions (if any) as the Commission thinks fit and specified in the notice, exempt- (a) any class of companies; or (b) any class of prospectuses issued by companies, from any or all of the requirements of the relevant provisions if, having regard to the circumstances, the Commission considers that the exemption will not prejudice the interest of the investing public and compliance with any or all of those requirements, in the case of that class of companies or prospectuses, as the case may be- (c) would be irrelevant or unduly burdensome; or (d) is otherwise unnecessary or inappropriate. (Replaced 30 of 2004 s. 2) (3) Where exemption from compliance with section 38(1) and (3) in relation to the requirements of the Third Schedule is granted under this section, whether by the issue of a certificate of exemption or by a notice in the Gazette, the certificate or notice, as the case may be, shall be expressed to have effect with regard to all of the requirements of the Third Schedule or to such of them as are specified in the certificate or notice, as the case may be. (4) In this section, "relevant provisions" (有關條文) means any of the provisions of- (a) section 38(1), (1A), (3) or (7), 38D(3) or (4), 42(1) or (4), 44A(1), (2) or (6) or 44B(1) or (2); or (b) Part 1 of the Twentieth Schedule or Part 1 of the Twenty-first Schedule. (Added 30 of 2004 s. 2) (5) The Commission may, by order published in the Gazette, amend subsection (4). (Added 30 of 2004 s. 2) (6) The Commission shall publish, by means of an on-line medium, such particulars of exemptions granted under subsection (1) as it considers appropriate. (Added 30 of 2004 s. 2) (7) Where the Commission proposes to issue- (a) a notice of exemption under subsection (2); or (b) an amendment order under subsection (5), it shall publish a draft of the proposed notice or order, in such manner as it considers appropriate, for the purpose of inviting representations on the proposed notice or order by the public. (Added 30 of 2004 s. 2) (8) Where the Commission issues a notice or order mentioned in subsection (7) after a draft is published under that subsection in relation to the notice or order, it shall- (a) publish, in such manner as it considers appropriate, an account setting out in general terms- (i) the representations made on the draft; and (ii) the response of the Commission to the representations; and (b) where the notice or order is issued with modifications which in the opinion of the Commission result in the notice or order being significantly different from the draft, publish, in such manner as it considers appropriate, details of the difference. (Added 30 of 2004 s. 2) (9) Subsections (7) and (8) do not apply if the Commission considers, in the circumstances of the case, that- (a) it is unnecessary or inappropriate that such subsections should apply; or (b) any delay involved in complying with such subsections would not be- (i) in the interest of the investing public; or (ii) in the public interest. (Added 30 of 2004 s. 2) (Replaced 86 of 1992 s. 3) COMPANIES ORDINANCE - SECT 38B Advertisements concerning prospectuses VerDate:03/12/2004 (1) Subject to subsection (2), it shall not be lawful for any person to publish or cause to be published- (a) by way of advertisement any extract from or abridged version of a prospectus; or (b) an advertisement in relation to a prospectus or proposed prospectus, whether in the English or Chinese language or in any other language in relation to shares or debentures of a company whether incorporated in or outside Hong Kong. (Replaced 30 of 2004 s. 2) (2) Notwithstanding subsection (1)- (a) the publication of an extract from or abridged version of a prospectus which is in accordance with such requirements as may have been specified by the Commission under subsection (2A)(a); (Replaced 86 of 1992 s. 4. Amended 30 of 2004 s. 2) (b) the publication of the English version only of a prospectus in an English language newspaper or the Chinese version only in a Chinese language newspaper; (c) the publication of an advertisement, invitation or document which has been authorized by the Commission under section 105 of the Securities and Futures Ordinance (Cap 571); (Added 86 of 1992 s. 4. Amended 5 of 2002 s. 407; 30 of 2004 s. 2) (d) the publication of an extract from or abridged version of a prospectus which is in accordance with such requirements as may have been authorized by the Commission under subsection (2A)(b) in that particular case; (Added 86 of 1992 s. 4. Amended 30 of 2004 s. 2) (e) the publication of an advertisement which- (i) complies with the requirements of the Nineteenth Schedule applicable to the advertisement; and (ii) contains such information as is permitted under subsection (2AA); or (Added 30 of 2004 s. 2) (f) the publication of an advertisement- (i) in relation to a company which is a collective investment scheme authorized under section 104(1) of the Securities and Futures Ordinance (Cap 571); and (ii) which has been authorized under section 105 of the Securities and Futures Ordinance (Cap 571), (Added 30 of 2004 s. 2) shall not contravene this section. (2AA) For the purposes of subsection (2)(e)(ii), the Commission may, on the request of the applicant, and in accordance with the guidelines published under section 38BA, permit an advertisement to contain such information as is specified in the permission and subject to such conditions as are specified in the permission. (Added 30 of 2004 s. 2) (2A) The Commission may- (a) by notice in the Gazette, specify requirements applicable to the form and manner of, and any other matters relating to, publication of an extract from or abridged version of a prospectus, or any class of prospectuses; (b) in any particular case, specify requirements applicable to and authorize the form and manner of, and any other matters relating to, publication of any extract from or abridged version of a prospectus. (Added 86 of 1992 s. 4. Amended 30 of 2004 s. 2) (2B) A prospectus referred to in subsection (2A) means a prospectus relating to shares in or debentures of a company, whether incorporated in or outside Hong Kong. (Added 86 of 1992 s. 4) (3) If any person acts in contravention of subsection (1), he shall be liable to a fine. (Amended 7 of 1990 s. 2) (Added 78 of 1972 s. 6) COMPANIES ORDINANCE - SECT 38BA Commission may publish guidelines relating to publications falling within section 38B(2) VerDate:03/12/2004 (1) The Commission may prepare and publish guidelines in relation to the form and manner of, and any other matters relating to, publications falling within section 38B(2). (2) Guidelines published under subsection (1) are not subsidiary legislation. (Added 30 of 2004 s. 2) COMPANIES ORDINANCE - SECT 38C Expert's consent to issue of prospectus containing statement by him VerDate:30/06/1997 (1) A prospectus inviting persons to subscribe for shares in or debentures of a company and including a statement purporting to be made by an expert shall not be issued unless- (a) he has given and has not, before delivery of a copy of the prospectus for registration, withdrawn his written consent to the issue thereof with the statement included in the form and context in which it is included; and (b) a statement that he has given and has not withdrawn his consent as aforesaid appears in the prospectus. (2) If any prospectus is issued in contravention of this section the company and every person who is knowingly a party to the issue thereof shall be liable to a fine. (Amended 7 of 1990 s. 2) (3) In this section the expression "expert" (專家) includes engineer, valuer, accountant, and any other person whose profession gives authority to a statement made by him. (Added 78 of 1972 s. 6) [cf. 1948 c. 38 s. 40 U.K.] "expert" (專家) COMPANIES ORDINANCE - SECT 38D Registration of prospectus VerDate:03/12/2004 (1) No prospectus shall be issued by or on behalf of a company unless the prospectus complies with the requirements of this Ordinance and, on or before the date of its publication, its registration has been authorized under this section and a copy thereof has been registered by the Registrar. (2) Every prospectus shall- (a) on the face of it, state that a copy has been registered as required by this section and immediately after such statement- (i) state that neither the Commission nor the Registrar takes any responsibility as to the contents of the prospectus; (ii) where the prospectus is or is to be authorized for issue by a recognized exchange company pursuant to a transfer order made under section 25 of the Securities and Futures Ordinance (Cap 571), state that neither the Commission nor the recognized exchange company nor the Registrar takes any responsibility as to the contents of the prospectus; or (iii) where the prospectus is or is to be authorized for issue by a recognized exchange controller pursuant to a transfer order made under section 68 of that Ordinance, state that neither the Commission nor the recognized exchange controller nor the Registrar takes any responsibility as to the contents of the prospectus; (Replaced 5 of 2002 s. 407) (b) on the face of it, specify or refer to statements included in the prospectus which specify, any documents required by this section to be endorsed on or attached to the copy so registered; and (c) conform with such requirements as are prescribed by the Chief Executive in Council or specified by the Registrar under section 346 which are applicable to prospectuses to be registered under this Part. (Amended 23 of 1999 s. 3) (3) An application for authorization for registration of a prospectus under this section shall be made in writing to the Commission and there shall be delivered to the Commission together with the application a copy of the prospectus proposed to be registered which has been signed by every person who is named therein as a director or proposed director of the company or by his agent authorized in writing and having endorsed thereon or attached thereto- (a) any consent to the issue of the prospectus required by section 38C from any person as an expert; and (b) in the case of a prospectus issued generally, also- (i) a copy of any contract required by paragraph 17 of the Third Schedule to be stated in the prospectus or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof or, if in the case of a prospectus exempted under section 38A from compliance with the requirements of section 38(1), a contract or a copy thereof or a memorandum of a contract is required by the Commission to be available for inspection in connection with the request made under section 38A(1), a copy or, as the case may be, a memorandum of that contract; (ii) where the prospectus offers shares in the company for sale to the public, a list of the names, addresses and descriptions of the vendor or vendors of the shares; and (iii) where the persons making any report required by Part II of the Third Schedule have made therein, or have, without giving the reasons, indicated therein, any such adjustments as are mentioned in paragraph 42 of that Schedule, a written statement signed by those persons setting out the adjustments and giving the reasons therefor. (4) The references in subsection (3)(b)(i) to the copy of a contract required thereby to be endorsed on or attached to a copy of the prospectus shall, in the case of a contract wholly or partly in a language other than English or Chinese, be taken as references to a copy of a translation of the contract in either language or a copy embodying a translation in English or Chinese of the parts not in either language, as the case may be, being a translation certified in the prescribed manner under subsection (10) to be a correct translation. (Amended 83 of 1995 s. 7; 30 of 2004 s. 2) (5) The Commission may- (a) authorize the registration by the Registrar, of a prospectus to which this section applies and where the Commission so authorizes, the Commission shall issue a certificate- (i) certifying that the Commission has done so; and (ii) specifying the documents which are required to be endorsed on or attached to the copy of the prospectus to be registered; or (b) refuse to authorize such registration. (6) The Commission shall not authorize the registration of a prospectus which relates to an intended company. (7) The Registrar- (a) shall not register a prospectus under this section unless- (i) it is dated and the copy thereof to be registered has been signed in the manner required by this section; (ii) it is accompanied by a certificate issued under subsection (5); (iii) it has endorsed thereon or attached thereto all the documents specified in the certificate issued under subsection (5); and (iv) it conforms with such requirements as are prescribed by the Chief Executive in Council or specified by the Registrar under section 346 which are applicable to prospectuses to be registered under this Part; and (Amended 23 of 1999 s. 3) (b) shall register a prospectus if subparagraphs (i), (ii), (iii) and (iv) of paragraph (a) are complied with in respect of that prospectus. (8) If a prospectus is issued without having endorsed thereon or attached thereto the required documents or without a copy thereof which has the required documents endorsed or attached having been registered under this section by the Registrar, the company, and every person who is knowingly a party to the issue of the prospectus, shall be liable to a fine and, for continued default, to a daily default fine from the date of the issue of the prospectus until a copy thereof is so registered or until the required documents are endorsed or attached, as the case may be. (9) Any person aggrieved by the refusal to authorize the registration of a prospectus under this section may appeal to the court and the court may either dismiss the appeal or order that the registration of the prospectus be authorized by the Commission under this section. (10) A translation mentioned in subsection (4) shall be- (a) certified by the person making the translation as a correct translation; and (b) deemed to be certified in the prescribed manner if the person making the translation has been certified, by the appropriate person mentioned in subparagraph (i) or (ii), as a person believed by that appropriate person to be competent to translate it into the English or Chinese language, as the case may be, that is to say- (i) if the translation be made outside Hong Kong- (A) a notary public in the place where the translation is made; (B) such other person as may be specified by the Commission; or (C) such other person belonging to a class of persons specified by the Commission, by notice published in the Gazette, for the purposes of this paragraph; (ii) if the translation be made in Hong Kong- (A) a notary public in Hong Kong; (B) a solicitor of the High Court of Hong Kong; (C) such other person as may be specified by the Commission; or (D) such other person belonging to a class of persons specified by the Commission, by notice published in the Gazette, for the purposes of this paragraph. (Added 30 of 2004 s. 2) (11) A notice published under subsection (10)(b)(i)(C) or (ii)(D) is not subsidiary legislation. (Added 30 of 2004 s. 2) (Replaced 86 of 1992 s. 5) COMPANIES ORDINANCE - SECT 39 (Repealed 6 of 1984 s. 23) VerDate:30/06/1997 COMPANIES ORDINANCE - SECT 39A Amendment of prospectus consisting of one document VerDate:03/12/2004 (1) A prospectus- (a) consisting of one document; and (b) to which the provisions of this Part are applicable, may only be amended in accordance with the provisions of Part 1 of the Twentieth Schedule. (2) The provisions of Part 1 of the Twentieth Schedule may alter the operation of a provision of this Part in relation to any prospectus, or class of prospectuses, which may be amended under subsection (1). (3) If any company contravenes subsection (1), the company and every officer of the company who is in default shall be liable to a fine. (4) For the avoidance of doubt, it is hereby declared that this section and Part 1 of the Twentieth Schedule do not apply to a prospectus to which section 39B applies. (Added 30 of 2004 s. 2) COMPANIES ORDINANCE - SECT 39B Prospectus may consist of more than one document, etc. VerDate:03/12/2004 (1) A prospectus to which the provisions of this Part are applicable may consist of more than one document in accordance with the provisions of Part 1 of the Twenty-first Schedule. (2) A prospectus to which subsection (1) applies may only be amended in accordance with the provisions of Part 1 of the Twenty-first Schedule. (3) The provisions of Part 1 of the Twenty-first Schedule may alter the operation of a provision of this Part in relation to any prospectus, or class of prospectuses, which falls within subsection (1) or which may be amended under subsection (2). (4) If any company contravenes subsection (2), the company and every officer of the company who is in default shall be liable to a fine. (Added 30 of 2004 s. 2) COMPANIES ORDINANCE - SECT 39C Submission of certified copies VerDate:08/07/2005 Where any document (howsoever described), other than a prospectus, is required under any of the provisions of sections 37 to 44B inclusive to be submitted to the Registrar by a company, the requirement shall be deemed to be satisfied by the submission to the Registrar of a copy of the document certified— <* Note- Exp. x-Ref: Sections 37, 38, 38A, 38B, 38BA, 38C, 38D, 39, 39A, 39B, 39C, 40, 40A, 40B, 41, 41A, 42, 43, 44, 44A, 44B *> (a) to be a true copy of the document; and (b) by— (i) a director or secretary of the company or an agent of the director or secretary authorized in writing for the purpose by the director or secretary; (ii) a solicitor within the meaning of section 2(1) of the Legal Practitioners Ordinance (Cap 159) or a certified public accountant within the meaning of section 2 of the Professional Accountants Ordinance (Cap 50); or (Amended 10 of 2005 s. 223) (iii) a notary public within the meaning of section 2(1) of the Legal Practitioners Ordinance (Cap 159). (Added 30 of 2004 s. 2) COMPANIES ORDINANCE - SECT 40 Civil liability for misstatements in prospectus VerDate:03/12/2004 (1) Subject to the provisions of this section, where a prospectus invites persons to subscribe for shares in or debentures of a company, the following persons shall be liable to pay compensation to all persons who subscribe for any shares or debentures on the faith of the prospectus for the loss or damage they may have sustained by reason of any untrue statement included therein, that is to say- (a) every person who is a director of the company at the time of the issue of the prospectus; (b) every person who has authorized himself to be named and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time; (c) every person being a promoter of the company; and (d) every person who has authorized the issue of the prospectus: Provided that where under section 38C the consent of a person is required to the issue of a prospectus and he has given that consent, he shall not by reason of his having given it be liable under this subsection as a person who has authorized the issue of the prospectus except in respect of an untrue statement purporting to be made by him as an expert. (1A) Subsection (1)(d) shall not apply- (a) to the Commission; (b) where the relevant prospectus is authorized by a recognized exchange company pursuant to a transfer order made under section 25 of the Securities and Futures Ordinance (Cap 571), to the Commission or the recognized exchange company; or (c) where the relevant prospectus is authorized by a recognized exchange controller pursuant to a transfer order made under section 68 of that Ordinance, to the Commission or the recognized exchange controller. (Replaced 5 of 2002 s. 407) (2) No person shall be liable under subsection (1) if he proves- (a) that, having consented to become a director of the company, he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or (b) that the prospectus was issued without his knowledge or consent, and that on becoming aware of its issue he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or (c) that, after the issue of the prospectus and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto and gave reasonable public notice of the withdrawal and of the reason therefor; or (d) that- (i) as regards every untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, he had reasonable ground to believe, and did up to the time of the allotment of the shares or debentures, as the case may be, believe, that the statement was true; and (ii) as regards every untrue statement purporting to be a statement by an expert or contained in what purports to be a copy of or extract from a report or valuation of an expert, it fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation, and he had reasonable ground to believe and did up to the time of the issue of the prospectus believe that the person making the statement was competent to make it and that person had given the consent required by section 38C to the issue of the prospectus and had not withdrawn that consent before delivery of a copy of the prospectus for registration or, to the defendant's knowledge, before allotment thereunder; and (iii) as regards every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document: Provided that this subsection shall not apply in the case of a person liable, by reason of his having given a consent required of him by the said section 38C, as a person who has authorized the issue of the prospectus in respect of an untrue statement purporting to be made by him as an expert. (3) A person who, apart from this subsection would under subsection (1) be liable, by reason of his having given a consent required of him by section 38C, as a person who has authorized the issue of a prospectus in respect of an untrue statement purporting to be made by him as an expert, shall not be so liable if he proves- (a) that, having given his consent under the said section 38C to the issue of the prospectus, he withdrew it in writing before delivery of a copy of the prospectus for registration; or (b) that, after delivery of a copy of the prospectus for registration and before allotment thereunder, he, on becoming aware of the untrue statement, withdrew his consent in writing and gave reasonable public notice of the withdrawal, and of the reason therefor; or (c) that he was competent to make the statement and that he had reasonable ground to believe and did up to the time of the allotment of the shares or debentures, as the case may be, believe that the statement was true. (4) Where- (a) the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorized or consented to the issue thereof; or (b) the consent of a person is required under section 38C to the issue of the prospectus and he either has not given that consent or has withdrawn it before the issue of the prospectus, the directors of the company, except any without whose knowledge or consent the prospectus was issued, and any other person who authorized the issue thereof shall be liable to indemnify the person named as aforesaid or whose consent was required as aforesaid, as the case may be, against all damages, costs and expenses to which he may be made liable by reason of his name having been inserted in the prospectus or of the inclusion therein of a statement purporting to be made by him as an expert, as the case may be, or in defending himself against any action or legal proceeding brought against him in respect thereof: Provided that a person shall not be deemed for the purposes of this subsection to have authorized the issue of a prospectus by reason only of his having given the consent required by section 38C to the inclusion therein of a statement purporting to be made by him as an expert. (5) For the purposes of this section- (a) the expression "promoter" (發起人) means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company; and (b) the expression "expert" (專家) has the same meaning as in section 38C. (6) This section shall apply to a publication falling within section 38B(2) as if the publication were a prospectus. (Added 30 of 2004 s. 2) (7) It is hereby declared that, for the purposes of this section, "persons who subscribe for any shares or debentures" (任何股份或債權證的認購人) includes persons specified in the Twenty-second Schedule. (Added 30 of 2004 s. 2) (Replaced 78 of 1972 s. 7) [cf. 1948 c. 38 s. 43 U.K.] "promoter" (發起人) "expert" (專家) "persons who subscribe for any shares or debentures" (任何股份或債權證的認購人) COMPANIES ORDINANCE - SECT 40A Criminal liability for misstatements in prospectus VerDate:03/12/2004 (1) Where a prospectus issued after the commencement* of the Companies (Amendment) Ordinance 1972 (78 of 1972) includes any untrue statements, any person who authorized the issue of the prospectus shall be liable to imprisonment and a fine, unless he proves either that the statement was immaterial or that he had reasonable grounds to believe and did up to the time of the issue of the prospectus believe that the statement was true. (Amended 7 of 1990 s. 2) (2) A person shall not be deemed for the purposes of this section to have authorized the issue of a prospectus by reason only of his having given the consent required by section 38C to the inclusion therein of a statement purporting to be made by him as an expert. (3) Subsection (1) shall not apply- (a) to the Commission; (b) where the relevant prospectus is authorized by a recognized exchange company pursuant to a transfer order made under section 25 of the Securities and Futures Ordinance (Cap 571), to the Commission or the recognized exchange company; or (c) where the relevant prospectus is authorized by a recognized exchange controller pursuant to a transfer order made under section 68 of that Ordinance, to the Commission or the recognized exchange controller. (Replaced 5 of 2002 s. 407) (4) This section shall apply to a publication falling within section 38B(2) as if the publication were a prospectus. (Added 30 of 2004 s. 2) (Added 78 of 1972 s. 8) [cf. 1948 c. 38 s. 44 U.K.] ___________________________________________________________________________ ___ Note: * Commencement date: 1 March 1973. COMPANIES ORDINANCE - SECT 40B Right to damages and compensation not affected VerDate:30/06/1997 A person is not debarred from obtaining damages or other compensation from a company by reason only of- (a) his holding or having held shares in the company; or (b) his having any right- (i) to apply or subscribe for shares; or (ii) to be included in the register of the company in respect of shares. (Added 3 of 1997 s. 10) [cf. 1985 c. 6 s. 111A U.K.] COMPANIES ORDINANCE - SECT 41 Document containing offer of shares or debentures for sale to be deemed prospectus VerDate:30/06/1997 (1) Where a company allots or agrees to allot any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public, any document by which the offer for sale to the public is made shall for all purposes be deemed to be a prospectus issued by the company, and all enactments and rules of law as to the contents of prospectuses and to liability in respect of statements in and omissions from prospectuses, or otherwise relating to prospectuses, shall apply and have effect accordingly, as if the shares or debentures had been offered to the public for subscription and as if persons accepting the offer in respect of any shares or debentures were subscribers for those shares or debentures, but without prejudice to the liability, if any, of the persons by whom the offer is made, in respect of mis-statements contained in the document or otherwise in respect thereof. (2) For the purposes of this Ordinance, it shall, unless the contrary is proved, be evidence that an allotment of, or an agreement to allot, shares or debentures was made with a view to the shares or debentures being offered for sale to the public if it is shown- (a) that an offer of the shares or debentures or of any of them for sale to the public was made within 6 months after the allotment or agreement to allot; or (b) that at the date when the offer was made the whole consideration to be received by the company in respect of the shares or debentures had not been so received. (3) Section 38D as applied by this section shall have effect as though the persons making the offer were persons named in a prospectus as directors of a company, and section 38 as applied by this section shall have effect as if it required a prospectus to state in addition to the matters required by that section to be stated in a prospectus- (a) the net amount of the consideration received or to be received by the company in respect of the shares or debentures to which the offer relates; and (b) the place and time at which the contract under which the said shares or debentures have been or are to be allotted, or a copy thereof, may be inspected. (Amended 78 of 1972 s. 9) (4) Where a person making an offer to which this section relates is a company or a firm, it shall be sufficient if the document aforesaid is signed on behalf of the company or firm by 2 directors of the company or not less than half of the partners, as the case may be, and any such director or partner may sign by his agent authorized in writing. [cf. 1929 c. 23 s. 38 U.K.] COMPANIES ORDINANCE - SECT 41A Interpretation of provisions relating to prospectuses VerDate:03/12/2004 (1) For the purposes of the foregoing provisions of this Part- (Amended 30 of 2004 s. 2) (a) a statement included in a prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included; and (b) a statement shall be deemed to be included in a prospectus if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith. (2) For the purposes of sections 40 and 40A, “untrue statement” (不真實 陳述), in relation to any prospectus, includes a material omission from the prospectus. (Added 30 of 2004 s. 2) (Added 78 of 1972 s. 10) [cf. 1948 c. 38 s. 46 U.K.] “untrue statement” (不真實陳述) COMPANIES ORDINANCE - SECT 42 Prohibition of allotment unless minimum subscription received VerDate:30/06/1997 Allotment (1) Subject to section 38A, no allotment shall be made of any share capital of a company offered to the public for subscription unless the amount stated in the prospectus as the minimum amount which, in the opinion of the directors must be raised by the issue of share capital in order to provide for the matters specified in paragraph 7 in Part I of the Third Schedule has been subscribed, and the sum payable on application for the amount so stated has been paid to and received by the company. For the purposes of this subsection, a sum