Changing shareholders in a company

The company shareholders can easily be changed or transferred at the time of incorporation

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The shares of a company are the equity of the company, representing the ownership of the business. In a Hong Kong Corporation, you can easily change the shareholder or transfer them, but the process to it is not that easy. A lot of things have to be kept in view if you want to proceed with changing the shareholders or transferring them.

Hongkong Business

Introduction

According to the Obligations of Hong Kong Ordinance, every Hong Kong private limited company has a provision in its articles regarding the transfer of shares. However, in the company ordinance, there is no constraint on share transfer, thus the most common way to change the Company Shareholder are:

  • Every transfer of share has to be approved by the board.
  • The shares which are to be transferred should be offered to the shareholders first on the basis of the provision of right.

The process of changing a shareholder in Hong Kong or the transfer of shares is listed below:

  • The preconditions of the rights should be met with or waived off.
  • A Share Transfer Form has to be signed by the transferor as well as the transferee.
  • Give the Share Transfer Form and underlying shares to the company.
  • Wait for the Board of Directors to approve the share transfer
  • Prepare the sale agreement and share transfer form for stamps.
  • Once the shares have been stamped and the buyer’s particulars have been confirmed for registration in the Company Registers, this acts as the proof of transfer of shares.

When the shares of a company are already in the company and you want to transfer it to a person already associated with the business or is already a shareholder. You can know about the process from the following:

  • The transfer of shares should be according to the shareholders of the company, i.e. to change the shareholders of the company, you must take the approval of the existing shareholders.
  • Once you obtain the approval, the documents are prepared for the transfer to take place. These documents are- contract notes, an instrument of transfer, resolutions, sale and purchase agreement, management account, etc.
  • The latest audit report has to be submitted if the company has conducted business in the past months. If the audit report has not been prepared within 6 months before the date of the transfer of shares, then a certified management account of the company is required within 3 months.
  • Once the necessary documents are collected, the contract notes or the transfer has to be stamped by the government along with the respective fees, called the stamp duty.
  • The stamp duty payable is based on the Total Net Asset Value of the company or the consideration, whichever is higher.
  • Once all the documents are collected, they are sent to the stamp office, and the process of change of shareholders is completed once the documents have been stamped.

Issuing new shares in the Hong Kong company includes the allotment of shares to specific people by the directors and issue of new shares to people once it has been registered in the Company’s Shareholders register with relevant particulars.

The distribution of shares, other than allotment to existing shareholders in proportion of their existing shareholding can be done with the approval of shareholders in a general meeting. This authority can be given either for a specific allotment or any allotment in general.

A return of allotment of shares should be filed within one month of the date of assignment in the company registry disclosing the shareholders and members of the company. If the company failed to submit such records within a month, then the chances are that your request for change of company shareholders might not be approved. Then, you are required to file an application to the court of the leave to file the return after the time has passed.

A share can be beneficially held by any person other than the holder of the share who is registered in the company’s registry. However, for a private company, it is not necessary for the beneficial owner to be known by any other company on a public record. However, a subsidiary company is obligated to state in its accounts, the name of its ultimate holding company.

For preparing the documents or for our company to help you prepare the documents, the following information must be provided:

  • The latest audit report within 6 months (and/or certified latest management accounts within 3 months, if the business has started.)
  • A copy of the passport or identity card and residential address of the new shareholder.
  • Name of the transferor (seller)
  • Amount of shares to be transferred
  • Land and property information, if any.
  • Agreement of sale and purchase, if any
  • Auditor’s report and/or certified latest management of the subsidiary company, if any
  • Resolution for distribution of dividend if any
  • A copy of the article of association of the company.

The time required for processing a share transfer usually takes 3-5 working days depending upon the schedule. The process is described below:

  • You are required to give the information and documents needed for the transfer as per your schedule.
  • It takes one day for our company to prepare the bought and sold note and the instrument of transfer along with the other documents.
  • Then the transferor and transferee are required to sign the transfer documents as per their schedule.
  • The original transfer documents along with the supporting documents are collected and then are submitted in the stamp office for assessment along with the stamp duty payable.
  • The new share certificate is prepared and updated in the register of members, and the rest of the documents are delivered to you.

There is a constraint of lime for when to pay your stamp duty and get the stamps for change in the company’s shareholder in Hong Kong. If this is processed late, you will be charged penalties. The timing for paying the stamp duty is:

  • Contract Note for sale or purchase of Hong Kong stock- payment to be made in 2 days after the sale or purchase if in Hong Kong.
  • Contract Note for sale or purchase of Hong Kong stock- payment to be made within 30 days of sale/purchase if made elsewhere.
  • Transfer operating as a voluntary disposition of any gift- payment to be made within 7 days of execution if in Hong Kong.
  • Transfer operating as a voluntary disposition of any gift- payment to be made within 30 days of execution if outside Hong Kong.
  • Transfer of different kinds of documents relating to the change of company shareholder in Hong Kong- payment to be done before execution.
  • Transfer of different kinds of documents relating to the change of company shareholder in Hong Kong- payment to be done 30 days after execution, if outside Hong Kong.

If you fail to pay the stamp duty before the due date, you will be liable for some penalty as mentioned below:

  • If the delay in paying stamp duty does not exceed one month- you will be liable to pay a penalty of twice the amount of stamp duty payable.
  • If the delay exceeds one month but does not exceed 2 months- you will be liable to pay a penalty of four times the amount of stamp duty payable.
  • Delay in payment of stamp duty in any other case- you will be liable to pay a penalty of ten times the amount of stamp duty payable.

In the case of request of remission of the late penalty, it is to be made in writing with the complete explanations of the delay with the supporting evidence. And if satisfied, the collector might remit the entire or a part of the amount depending on your reason and the justification.

If the company in Hong Kong is a new one and whats to change its shareholders, then one out of the two situations can arise here. The first one is that the company has commenced the business since it started and the other one is where the company has not yet commenced the business. Let us take a look at both situations vividly.

If the company has already commenced the business, the following documents are required:

  • The latest audited report of the company and its subsidiary.
  • Certified management accounts of the company and its subsidiary. It has to be from the last date of the latest audited report up to the date within 3 months from the date of transfer. It happens only if the audited accounts are not up-to-date within 6 months before the date of this transaction.
  • A copy of the resolution of the meeting of the directors for the dividends paid or are payable if any. This is after the end date of the latest audited accounts which are not up to the date within 6 months before the date of this transaction.
  • A copy of the return of allotments for an increase in the share capital, if any, after the end date of the latest audited accounts.
  • Any other necessary information or documents, in individual cases.

On the other hand, if the company has not commenced any business, no audit report is prepared since it has been recently incorporated, a written confirmation along with a supported copy of a certificate of incorporation of the business is needed.

According to our experience, a number of government agents of IRD would request the director to sign a declaration that would be given to the IRD stating that the company has never conducted any business and does not have any subsidiaries or assets. Even so, if the IRD finds that the director made a false report but declaring this, the business would be considered as criminally liable for it.

Hence, it is always suggested to have an experienced agent who can take care of all the needs and documents required just like our company does.we will advise you on the specifics for the need of transfer of share document, and how to report the accounting and financial statements in proper due diligence to the government.

As mentioned above, every document has a stamp duty that needs to be paid for each instrument of transfer that costs about HKD 5. On the other hand, you are required to pay compensation for the sales of shares at the rate of 0.2% of Net Asset Value, whichever is higher, for the sale agreement.

For calculating the net asset value for the transfer of shares, we are required to submit the above-mentioned documents to the IRD assessor for changing the company shareholders in Hong Kong.

Once the documents are collected, the stamp duty is calculated as:

[ amount of consideration (or net asset of the subject company x % of interest to be transferred) x 0.1% ] x 2 + HKD5

For instance, if a business has net assets of HKD 10,000 and a half to the total shares will be transferred, then the amount of stamp duty payable will be calculated as:

(HKD10,000 x 50% x 0.1%) x 2 + HKD5 = HKD15

In case you find any difficulties with the procedure and the process, our company can always help you out. Even though we have outlined the transfer of shares process, there can be mishaps with documentation along the way, which may delay or fail the application with the government. The professionals in our company would assist you at every step so that you find the processes easy and the process is completed on time without any hassle.

  Order – Change of company shareholders