Companies Ordinance of Hong Kong Will Include a Treasury Share Regime for Listed Companies

BACKGROUND

The Stock Exchange of Hong Kong Limited permits listed companies to keep the shares bought back by the companies to be held as “treasury shares” from 11 June 2024 onwards, provided that the laws of the companies’ incorporation jurisdictions so allow. The majority of Hong Kong-listed companies are incorporated in the Cayman Islands and Bermuda, both of which have treasury share regimes. In contrast, Hong Kong previously lacked such a regime. Thus, the Companies Ordinance (Chapter 622 of the Laws of Hong Kong) has been recently amended to introduce a treasury share regime, which will take effect on 17 April 2025.

TREASURY SHARE REGIME IN HONG KONG

The treasury share regime in Hong Kong only applies to listed companies. The major elements are as follows:

– The listed company may, upon buy-back of its own shares, hold those shares as “treasury shares” in its own name or through a nominee.

– A listed company holding the treasury shares in its own name or through a nominee must enter its name or the nominee’s name in its Register of Members.

– But the holder of the treasury shares shall not be regarded as a member, a shareholder or a contributory of the company.

– When a listed company holds treasury shares of 5% or more in any class of its shares, it should still report such holding in its annual return (Form NAR1) to be filed with the Companies Registry of Hong Kong even though the holder is not regarded as a member of the company.

– All rights attached to the treasury shares have to be suspended, including the right to attend or vote at the company’s meetings, and the right to receive dividends or any distribution of the company’s assets.

– However, the right to the allotment of shares as fully paid bonus shares in respect of the treasury shares is not affected. Such fully paid bonus shares are to be regarded as being bought back on their allotment. The company must deliver a return of allotment (Form NSC1) to the Companies Registry within a month after such allotment, as well as a return (Form NSC2) to specify the number of bonus shares that are held as treasury shares.

– Treasury shares must be excluded from the number of the issued shares and the total voting rights when calculating the relevant threshold in corporate matters such as passing of resolutions, exercising rights in a takeover offer, and making applications to court.

– The treasury shares may be cancelled. The cancellation does not affect the amount of issued share capital while the number of issued shares is reduced by the number of treasury shares so cancelled.

– When a listed company is delisted, all its treasury shares are to be regarded as cancelled.

– Treasury shares may be transferred or sold, whether for a consideration or not. Nevertheless, such transfer or sale is subject to same approval requirements applicable to allotment of new shares in a listed company. When the treasury shares are sold or transferred for a consideration, the amount of issued share capital will increase but the number of issued shares will not change.

A listed company is not required to report its treasury shares to the Companies Registry on a periodic basis, but it is required to…READ FULL ARTICLE

By: Rossana Chu at YYC Legal LLP

Note: This material has been prepared for general informational purposes only and is not intended to be relied upon as professional advice. Please contact us for specific advice.