Form NAMA5 Certificate on Claims of Creditors by Amalgamated Hong Kong Company Directors

Form NAMA5 Certificate on Claims of Creditors Hong Kong

Form NAMA5 is the directors' formal declaration that all creditor claims from a proposed amalgamation are settled, secured, or otherwise addressed to protect those creditors. The Form NAMA5 Certificate on Claims of Creditors Hong Kong is a statutory filing under the Companies Ordinance (Cap. 622) required when a company seeks court approval of a solvent amalgamation. It is the primary evidence that the amalgamating entities have notified creditors, allowed time for objections, and made provision for outstanding liabilities.

Purpose of Form NAMA5

Form NAMA5 satisfies the court that the directors have considered and dealt with the claims of all known creditors. This is not an administrative form; it is a sworn certificate forming part of the court's evidence when deciding whether to sanction the amalgamation. Without a properly completed Form NAMA5, the court will not approve the amalgamation order.

The certificate covers secured and unsecured creditors, including trade creditors, lenders, employees with accrued entitlements, and any party to whom a liability is owed. Directors must confirm they have either paid the claim in full, secured the creditor's consent to the amalgamation, or made a provision the court considers adequate.

NAMA5 Form Hong Kong: Who Must File

The obligation to file the NAMA5 form Hong Kong falls on the directors of each amalgamating company. In an amalgamation of two or more companies, each company's board must sign and deliver its own Form NAMA5. The form is submitted to the Companies Registry as part of the amalgamation application package under sections 668 to 677 of the Companies Ordinance (Cap. 622).

Directors must be satisfied the amalgamated company will be solvent immediately after the amalgamation takes effect. This solvency test is distinct from the solvency statement on Form NAMA2; Form NAMA5 specifically addresses creditor claims rather than overall financial viability.

Creditor Claims Certificate: What It Must Contain

A valid creditor claims certificate on Form NAMA5 must include:

1. A list of all known creditors of the amalgamating company
2. Confirmation that written notice was given to each creditor of the proposed amalgamation
3. The date by which creditors could object (the objection period)
4. Details of any creditors who did object and how those objections were resolved
5. A statement that the directors have made adequate provision for all outstanding liabilities

The form requires directors to declare that either each creditor has consented in writing to the amalgamation, or the court has approved the arrangement for dealing with that creditor's claim. Where a creditor cannot be located or has not responded, directors must explain the steps taken to trace them.

Amalgamation Creditor Protection Under Cap. 622

Section 675 of the Companies Ordinance (Cap. 622) establishes the statutory framework for amalgamation creditor protection. The law requires that before the court sanctions an amalgamation, it must be satisfied that the interests of creditors are not prejudiced. Form NAMA5 is the primary mechanism through which the court receives this assurance.

The objection period must be at least 21 days from the date of notice. Creditors who object within that period may apply to the court for directions or to have their claims addressed before the amalgamation proceeds. The directors' certificate on Form NAMA5 must account for any such objections and explain their resolution.

The Notice to Creditors Requirement

Before filing Form NAMA5, directors must issue a formal notice to creditors of each amalgamating company. This notice must state:

• The proposed amalgamation and its effective date
• The name and company registration number of the amalgamated company
• The amount and nature of the debt or claim owed
• The date by which the creditor may object (at least 21 days)
• The address to which objections must be sent

The notice must be served personally or by registered post. For creditors whose addresses are unknown, directors may place a notice in a newspaper circulating in Hong Kong, subject to the court's approval.

Objection Period and Court Satisfaction

After the objection period expires, directors must assess whether any creditor has raised a valid objection. If no creditor has objected, directors may certify on Form NAMA5 that the amalgamation should proceed. If objections exist, directors must either resolve them (by payment, security, or agreement) or seek court satisfaction that the objections are unreasonable or that adequate provision has been made.

The court will examine Form NAMA5 with any supporting affidavits from the directors. The court has discretion to require additional evidence, including a statutory declaration from the directors confirming the facts stated in the certificate.

Liabilities and the Solvent Amalgamation Condition

Form NAMA5 directly addresses the liabilities of the amalgamating companies. The certificate confirms all known liabilities have been identified and provided for. The amalgamated company assumes all liabilities of the amalgamating companies by operation of law under section 677 of Cap. 622, but the court must be satisfied the amalgamated company can meet those obligations.

The concept of a solvent amalgamation is central: directors must certify the amalgamated company will be able to pay its debts as they fall due. This differs from the solvency statement on Form NAMA2, which addresses the position at the date of the amalgamation proposal. Form NAMA5 looks forward to the post-amalgamation position regarding specific creditor claims.

Filing Through the E-Services Portal

Form NAMA5 can be submitted through the Companies Registry's e-Services portal at www.eregistry.gov.hk. The portal accepts electronic signatures from directors and allows for instant payment of the filing requirement fee. The prescribed fee for Form NAMA5 is set by the Companies (Fees) Regulation (Cap. 622 sub. leg.).

When filing electronically, each director must sign the form using a digital certificate recognised by the Registry. The system generates a receipt and a filing date stamp. Paper filing is also available at the Companies Registry counter, but electronic filing is recommended for speed and traceability.

Relation to Other NAMA Forms

Form NAMA5 is one of six forms in the NAMA series. It is filed alongside:

• Form NAMA1: Proposal for amalgamation
• Form NAMA2: Directors' solvency statement
• Form NAMA3: Directors' certificate of approval
• Form NAMA4: Appointment of directors of the amalgamated company
• Form NAMA6: Notice of court application to intervene

Each form serves a distinct purpose. Form NAMA5 is the only one that specifically deals with creditor claims and must be filed after the objection period has ended but before the court hearing.

Consequences of Non-Compliance

Failing to file a complete and accurate Form NAMA5 can result in the court refusing to sanction the amalgamation. If the court discovers a creditor was not notified or that the certificate contains false statements, it may dismiss the application or order the directors to pay costs personally. Directors who sign a Form NAMA5 knowing it to be false may face criminal penalties under section 676 of Cap. 622.

Where to Obtain the Form

The official Form NAMA5 is available on the Companies Registry website. Always download the current version from the Registry's specified forms index at cr.gov.hk/en/forms/specified.htm. The Registry revises forms periodically, and using an outdated version may cause the filing to be rejected. Do not rely on third-party reproductions.

Checklist for Directors

Before signing Form NAMA5, directors should:

1. Identify all creditors of the amalgamating company
2. Issue written notice to each creditor with a 21-day objection period
3. Record all objections received
4. Resolve each objection through payment, security, or creditor consent
5. Confirm that the amalgamated company will be solvent
6. Complete the form accurately and sign it
7. File the form with the Companies Registry before the court hearing

The certificate is a serious legal document. Directors should seek legal advice if any creditor's claim is disputed or if they are uncertain about the adequacy of the provision made.