A Complete Guide to HK Company Share Transfers

As part of its business life, it is quite common for the share capital of your company to be reorganized at some point in time, where you will have to transfer existing shares.

This may be the case when you sell your business or attract a new investor.

In this guide, we address the main considerations when you plan to transfer shares.

Understanding Share Transfer Hong Kong Procedure

In Hong Kong, transferring shares involves several key steps:

1. Documents Preparation:

• Use the standard share transfer form detailing seller, buyer, shares, and sale price. Those are known as Instruments and Bought and Sold Notes. The share transfer may also involve a Share Purchase Agreement, but this is not mandatory.
• Include supporting documents like share certificates, board resolutions (if needed), and ID copies.

2. Signature and Certification:

• Both parties sign the transfer documents.
• The parties’s signatures are usually witnessed by a third party. This may be by a Hong Kong solicitor, accountant, or any authorized third party.

3. Stamp Duty:

• Shares transfer is subject to a stamp duty of 0.26% on the highest between (i) the purchase price and (ii) the net assets value of the target company.
• Each party normally bears its share of the stamp duty. In practice, it is not uncommon that the buyer typically pays stamp duty on the transfer.
• Options for stamping include electronic (e-stamping) or traditional methods.
• Payment of the stamp duty is made at the Inland Revenue Department

4. Updating of Statutory Registered:

• After stamping, the company secretary of the target company updated the Register of Members and the Register of Directors (if applicable).
• If there is a change of directors, filing is also required with the Hong Kong Companies Registry.

5. Issuance of New Share Certificates:

• Upon completion of the process, the target company issues a new share certificate to the buyer, confirming the ownership transfer.

Important Considerations:

• Some companies may have pre-transfer rights for existing shareholders. Before purchasing the shares of a company, always ensure that no preferential purchase right is granted to any other party.
• Seek professional advice from a solicitor or accountant who is well-versed in Hong Kong company law for a smooth and compliant process.

When Do Share Transfers Take Place?

There are several circumstances when transferring existing shares, whether you are selling all or part of them:

• A transfer of shares between an existing shareholder to another in the context of an internal or group reorganization
• A transfer of shares as part of the sale of your company (welcoming a new shareholder)

What Are the Preconditions for Any Share Transfer?

There are several key actions that you should take before transferring the shares of your company:

• It's important to understand common transfer restrictions. Check your company's articles of association for any limitations on share transfers.
• Review your company's shareholders agreement (if any) for the same possible limitations or restrictions (for example, lock-up periods during which shares cannot be freely transferred).
• Ensure an appropriate board agreement or general meeting resolution authorizing the transfer has been passed.
• Verify if the other parties involved have been offered to purchase the shares to be transferred and have waived such right (in case of the pre-emptive right granted to the other shareholders).

What Documents Are Required for a Share Transfer?

You will need to prepare the following documents and information for any proposed transfer of shares:

• The share purchase agreement, also known as equity transfer agreement (not mandatory but strongly recommended)
• Bought and Sold notes, also known as Contract Notes
• Instrument of Transfer
• Application letter to be submitted to the Inland Revenue Department (IRD)
• Latest audit report audit
• Certified management accounts dated no more than 3 months for the company and its subsidiaries
• If the company has not yet started a business, a letter confirming the same is in replacement of the audit report and management accounts.

Are Previous Share Certificates Still Valid?

The validity of a previous share certificate depends on several factors:

• If the company that issued the certificate is still active, the certificate is probably still valid. Typically, you can verify the company's status online using government resources or the company's website.
• If the details on the certificate, including the company name, shareholder information, and share count, align with the current company records, the certificate remains valid.
• If the company has issued new share certificates because of a stock split, merger, or other event, the previous certificate might be invalid and may not show your current ownership status.
• Although a damaged certificate may make it difficult to use, it does not necessarily mean it is invalid. However, if the certificate is lost, you will need to request a replacement from the company.
• Numerous companies are transitioning to dematerialized shares, which involve electronic recording of ownership. In these instances, the physical certificate may not be necessary for ownership, as the electronic record holds greater significance.

Are Share Transfers Subject to Administrative Procedures?

Share transfers of Hong Kong companies are subject to very limited administrative procedures.

From a legal standpoint, the sale or transfer of shares of a Hong Kong company becomes effective on the date of signing of the relevant share transfer documents (meaning on the date indicated on the share purchase agreement, the bought and sold notes, and the instrument of transfer).

However, the name of the acquirer of the shares can only be entered in the Company's Register of Members after a stamping procedure with the Hong Kong Inland Revenue Department (this stamping procedure is further detailed below).

Please note that share transfers do not need to be immediately reported to the Hong Kong Companies Registry.

Information regarding share transfers affecting a Hong Kong company is only disclosed to the Companies Registry once a year upon the filing of the company's annual return (NAR1 Form).

What Is the Stamp Duty Applicable to Share Transfers?

Any transfer of the shares of a company in Hong Kong is subject to payment of a stamp duty levied by the Inland Revenue of Hong Kong.

This stamp duty is basically a tax on transfers and sales of company shares.

There are several key aspects that you should know about stamp duty:

• The amount of stamp duty payable is 0.26% of the highest purchase price for the transferred shares or the net assets of your company. The amount of the company's net assets are determined based on the latest audit report or management accounts of your company
• There is a deadline to proceed with the stamping documents. If the share transfer documents are signed in Hong Kong, this deadline is two (2) days after the sale. The deadline is thirty (30) days if the share transfer documents are signed outside of Hong Kong.

Let's look at a real-life example:

Clara owns all 100 shares of Gold Dragon Limited.

Clara sells all such 100 shares to Michelle for HK$ 1,000,000.

The net assets value of Gold Dragon Limited is HK$ 800,000 (based on its audited accounts).

Then the stamp duty payable on the share transfer is HK$ 1,000,000 x 0.26% = HK$ 2,600.

What Are the Penalties In Case of Late Stamping?

Penalties for late stamping and payment of stamp duty are progressive.

The penalties start at twice and may reach up to ten times the amount of stamp duty normally due.

How Do You Speed Up the Payment of Stamp Duty on a Share Transfer?

Legally speaking, the name of the buyer can only be entered in the company's Register of Members (also known as Register of Shareholders) after the applicable stamp duty is paid.

In order to speed up the stamp duty process, we recommend that the purchase price for any transfer of the shares of your company be expressed in Hong Kong dollars.

If expressed in Hong Kong dollars, the Hong Kong Inland Revenue Department will be able to assess and calculate the amount of the stamp duty fee immediately on the same day.

On the contrary, if the purchase price is expressed in another currency then the Inland Revenue Department may take a few days to proceed with the currency conversion.

This will delay the completion of the transfer of your shares.

What Happens at the End of the Share Transfer Process?

Upon completion of a share transfer, the buyer receives a share certificate.

The company has two (2) months to issue such a share certificate.

Your company's register of members must also be updated to include the name of the buyer within 2 months.

Finally, the Significant Controller Register of your company may also have to be updated.

How Long Does It Take to Complete a Share Transfer?

We have extensive experience handling share transfers and stamping procedures.

Preparing the application documents only takes a couple of hours if you use Air Corporate's services.

In order to avoid any delay, you should anticipate the preparation of your company's audit report and the latest management accounts.

Air Corporate can, of course, assist you with this part. Sign up today to get a clear share structure setup.

Focus on your business, we take care of the rest.