Completing Form NAMA1 for an Approved Amalgamation Proposal in Hong Kong

Purpose of Form NAMA1 Approved Amalgamation Proposal Hong Kong

Form NAMA1 Approved Amalgamation Proposal Hong Kong is the statutory document used to initiate a court-approved amalgamation under the Companies Ordinance (Cap. 622). This form serves as the formal proposal that sets out the terms, structure and conditions of the amalgamation before the court considers whether to confirm it. The proposal must be lodged with the Companies Registry as part of the legal process to merge two or more companies into a single entity.

Unlike a short-form amalgamation under section 682 of Cap. 622, which uses the NAMA2 and NAMA3 route, the approved amalgamation procedure requires the court's involvement. The Companies Registry will not register the amalgamation until the court has issued an order confirming it and the prescribed forms have been filed.

NAMA1 Form Hong Kong - Who Signs and What It Contains

The NAMA1 form Hong Kong must be signed by a director of each amalgamating company. The directors' resolution authorising the proposal must have been passed before the form is executed. The key contents of the proposal include:

• The name and company number of each amalgamating company
• The proposed name of the amalgamated company
• The registered office address of the amalgamated company
• The proposed share capital structure of the amalgamated company
• The terms of the amalgamation, including how shares or other consideration will be allocated
• Any conditions precedent that must be satisfied before the amalgamation takes effect
• The date on which the amalgamation is proposed to become effective

The proposal must also specify whether any amalgamating company is a wholly owned subsidiary or holding company, as this affects the level of court scrutiny required.

Approved Amalgamation Proposal - Required Attachments

When filing the approved amalgamation proposal, the following attachments must accompany Form NAMA1:

1. A certified true copy of the directors' resolution passed by each amalgamating company authorising the proposal
2. A copy of the proposed amalgamation agreement, if one exists
3. A statement explaining the basis on which the amalgamation is proposed and why it is in the interests of all members and creditors
4. Evidence that the required notice has been given to each member of each amalgamating company, including the notice period prescribed under section 666 of Cap. 622
5. If the amalgamation involves a company that is subject to a court order affecting its affairs, a copy of that order

The Companies Registry will check the form for completeness before issuing a certificate of registration of the proposal. Missing attachments will cause the filing to be rejected.

Hong Kong Company Amalgamation - The Court Order Process

A Hong Kong company amalgamation under the approved procedure requires the applicant to apply to the Court of First Instance for an order confirming the proposal. The court will consider:

• Whether the solvent test has been satisfied, meaning each amalgamating company is able to pay its debts as they fall due
• Whether the rights of creditors are adequately protected
• Whether any member who objected to the amalgamation has been treated fairly
• Whether the amalgamation complies with the requirements of Part 13 Division 2 of Cap. 622

The court may confirm the amalgamation without variation, confirm it subject to conditions, or refuse to confirm it. If the court confirms the amalgamation, it will issue an order that must be filed with the Companies Registry within seven days of the order being made.

Companies Registry NAMA1 - Filing Procedure and Fee

The Companies Registry NAMA1 must be filed in the prescribed manner. The filing channels are:

• Electronic filing: Through the Companies Registry e-Services portal at https://www.eregistry.gov.hk/
• Paper filing: By delivering the completed form and attachments to the Companies Registry office in Queensway

The current registration fee for filing Form NAMA1 is set by the Registrar of Companies and is payable at the time of filing. If the form is delivered in paper format, the fee is higher than the electronic filing fee. The fee schedule is published on the Companies Registry website and is subject to periodic revision.

Notice to Members and Creditor Claims

Before the proposal can be filed, each amalgamating company must give notice to its members. The notice must specify the date, time and place of the meeting (if any) at which the proposal will be considered, or if no meeting is required, the date by which members may object. The notice must contain a copy of the proposal or a summary of its material terms.

For creditor claims, the directors of each amalgamating company must certify that they have made adequate provision for payment of all creditors. Any creditor who objects to the amalgamation may apply to the court under section 670 of Cap. 622 for an order restraining the amalgamation or requiring security for the debt. The court will consider the creditor's position before making any final order.

Directors' Resolution and Solvent Test

The directors' resolution authorising the proposal must be passed by the board of each amalgamating company. The resolution must state that the directors:

• Have considered the terms of the proposal
• Believe that the amalgamation is in the best interests of the company and its members
• Are satisfied that the solvent test is met

The solvent test requires that each amalgamating company is able to pay its debts as they become due within the period of 12 months immediately following the date of the amalgamation. The directors must consider the company's current and projected financial position when making this assessment.

Certified True Copy and Filing Deadline

After the court has confirmed the amalgamation, a certified true copy of the court order must be lodged together with the Companies Registry NAMA1 within seven days of the order being made. The certified true copy must be sealed by the court or certified by the company's solicitor as a true copy of the order.

The filing deadline is strict. If the certified true copy is not filed within the seven-day period, the amalgamation cannot be registered and the court order lapses. The companies would then need to restart the process from the beginning.

Practical Steps for Filing Form NAMA1

The practical steps to file Form NAMA1 are:

1. Prepare the proposal and have it approved by a directors' resolution in each amalgamating company
2. Give notice to members as required by Cap. 622
3. Address any creditor claims that arise
4. Apply to the court for an order confirming the amalgamation
5. Within seven days of the court order, file Form NAMA1 together with the certified true copy of the court order at the Companies Registry
6. Pay the applicable filing fee
7. Await registration of the amalgamation

The Companies Registry will issue a certificate of amalgamation once the filing is accepted and processed. The amalgamation takes effect on the date stated in the certificate, which is usually the date of registration.