Form NAMA2 Certificate on Solvency Statement by Directors in Hong Kong

What Is the Form NAMA2 Solvency Statement Certificate Hong Kong

Form NAMA2 is the statutory document filed with the Companies Registry for an amalgamation under Part 13 of the Companies Ordinance (Cap. 622). It contains the directors' formal declaration that each amalgamating company is solvent. The form records the solvency statement required by section 662 and the directors' certificate that accompanies it. The Companies Registry will not register an amalgamation without a properly completed NAMA2.

The form has two parts. The first is the solvency statement itself, made by the directors of each amalgamating company. The second is the directors' certificate, confirming the statement has been made and the conditions in the Ordinance are satisfied. Both parts must be completed before Form NAMA1 is delivered to the Registrar.

NAMA2 Form Hong Kong: Who Signs and When

All directors of each amalgamating company must sign the NAMA2 form. The Companies Ordinance requires every director to make the solvency statement, not merely a majority. If a company has three directors, all three must sign. The statement must be made no earlier than 15 days before the date on which the amalgamation is proposed to take effect.

Prepare the form alongside the amalgamation proposal and the directors' statement under Form NAMA3. File it simultaneously with Form NAMA1 and any other required documents, such as Form NAMA5 (if creditors' claims are affected) or Form NAMA6 (court application). The Companies Registry will reject a submission if the NAMA2 is missing or incomplete.

Directors Solvency Statement: The Financial Test

The directors solvency statement is the core of Form NAMA2. Each director must declare that, having made full inquiry into the affairs of the company, they are of the opinion that the company is solvent. The test for solvency under section 662(3) has three limbs:

• The company will be able to pay its debts as they fall due during the period of 12 months immediately after the amalgamation takes effect.
• If the company is intended to be wound up within that 12-month period, it will be able to pay its debts in full within that period.
• The realisable value of the company's assets will not be less than the amount of its liabilities, taking into account contingent and prospective liabilities.

Directors must consider the company's position both before and after the amalgamation. If any director cannot honestly make this statement, the amalgamation cannot proceed by the short-form procedure under section 662. The company would need to apply to the court instead.

Amalgamation Solvency Certificate: Format and Content

The amalgamation solvency certificate on Form NAMA2 must follow the exact format prescribed by the Companies Registry. The form contains the solvency statement wording set out in item 1 and a certificate in item 2. The certificate confirms that:

• The solvency statement was made by the directors of the amalgamating company.
• The statement was made not earlier than 15 days before the date on which the amalgamation is proposed to take effect.
• The directors have satisfied themselves that the company will be able to pay its debts as they fall due during the 12 months after the amalgamation.

Date and sign the certificate with each director's signature. The Companies Registry provides a fillable PDF version of Form NAMA2 on its specified forms index. Complete the PDF electronically or by hand in block capitals. For paper filings, deliver the original signed version to the Companies Registry office at Queensway.

Form NAMA2 Requirements: Witnessing and Declaration

Form NAMA2 requirements include a witnessing rule that is sometimes overlooked. The solvency statement (item 1) must be made by statutory declaration before a person authorised to administer oaths. In Hong Kong, that person is typically a solicitor, a notary public, or a commissioner for oaths. The declaration must state: "I, [name], solemnly and sincerely declare that..." and must be signed in the presence of the authorised person.

The certificate (item 2) does not itself require a statutory declaration, but it must be signed by all directors. The Companies Registry expects the certificate to be executed as a deed or under hand, depending on the company's articles. If executed as a deed, it must be witnessed by a person who is not a director. The witness must sign and state their name, address and occupation.

All signatures on Form NAMA2 must be original. The Companies Registry does not accept photocopied or scanned signatures for paper filings. For electronic filings through the e-Services portal, digital signatures using a recognised certification authority are accepted.

Supporting Documents and Filing

When submitting Form NAMA2 to the Companies Registry, the following documents must accompany it:

• Form NAMA1, the amalgamation proposal.
• Form NAMA3, the directors' statement (unless the company is exempt).
• Form NAMA5, if the amalgamation affects creditors' claims and the company has not complied with the creditor notification procedure.
• A copy of the special resolution approving the amalgamation (if required by the company's articles).
• Any court order under Form NAMA6, if the court has given directions.

The Companies Registry charges a filing fee for Form NAMA1. The NAMA2 itself does not carry a separate fee, but it must be filed together with the principal form. Late filing penalties apply if the amalgamation documents are delivered after the period specified in the amalgamation proposal.

Penalty for False Statement on Form NAMA2

A penalty for false statement applies to Form NAMA2 because it is a statutory declaration. Section 912 of Cap. 622 provides that a person who knowingly or recklessly makes a false statement in a statutory declaration commits an offence. The maximum penalty is a fine of HK$300,000 and imprisonment for 2 years.

The same penalty applies if a director signs the certificate knowing that the solvency statement is false. The Companies Registry may also refuse to register the amalgamation if it has reason to doubt the accuracy of the solvency statement. The Registry does not investigate solvency statements routinely, but it retains the power to reject documents that appear defective on their face.

Practical Points for Directors

Directors should note the following when completing Form NAMA2:

• The solvency statement must be made within the 15-day window before the amalgamation takes effect. If there is any delay in filing, a fresh statement may be needed.
• Each director must make their own inquiry into the company's financial position. Relying solely on management accounts without verification can expose a director to liability.
• If any director cannot honestly make the solvency statement, the amalgamation cannot proceed by the short-form procedure. The company must apply to the court under section 663.
• The form must be filed in duplicate if the amalgamating companies are different legal entities. Each company must submit its own Form NAMA2.