In the matter of the Companies Act, 1862. Form 725. Notice of Take notice that I dissent from the special resolutions of the co passed and confirmed at general meetings thereof, held respively on the day of And I hby require you either and day of to abstain from carrying such resolution into effect, or to pchase the interest in the sd co held by me, at a price to be determined in accordance with Section 162 of the above-mentd Act. Dated, &c. A. B. of See Union Bank of Kingston, 13 C. D. 808; Anglo-Italian Bank v. De Rosaz, L. R. 2 Q. B. 452; De Rosaz v. Anglo-Italian Bank, L. R. 4 Q. B. 462, and supra, pp. 556, 557. Form 726. AGREEMT for RECONSTRUCTION SANCTIONED BY THE CT in the Winding-up of THE IMPERIAL MERCANTILE CREDIT ASSOCIATION. Parties. Recitals. The following is a copy of an agreement which was sanctioned by the Court of Chancery. See In re Imperial Mercantile Credit Association, 12 Eq. 504. It was framed with the greatest care, and has since served as the basis of many other reconstruction agreements. ARTICLES OF AGREEMT under seal made the 19th day of July, 1871, between Sir W. J., of W. M., of F. F., of and A. C. S., of, of the one pt, and the Imperial Credit Co, Limtd, of the other pt: WHAS the Imperial Mercantile Credit Association, Limtd (hereinafter called the old co), has a nominal capital of 5,000,0007., divided into 100,000 shares of 501. each: AND WHAS a special resolution for the voluntary winding-up of the old co was passed and confirmed at general meetings thereof, held respively on the 28th day of May and the 14th day of June, 1866; AND, by an order of his Honour the then Vice-Chancellor Wood, made on the 26th day of June, 1866, it was ordered that the sd voluntary winding-up should be continued, but subject to the supervision of the High Ct of Chancery: AND WHAS by calls made partly before and partly under the sd winding-up, the shares in the old co have been called up to the amount of 277. 10s. in all, leaving 227. 10s. per share still uncalled thereon: AND WHAS by means of such calls, of the assets realised, and of temporary loans made to the old co or its liqs, the debts proved against or admitted by the old co, other than those due in respect of such loans, have all been paid, except so far as any of the creditors of the old co have omitted to receive any of the instalmts which, however, are lying ready to be pd them: AND WHAS the old co is under a liability to provide certain sums of money for the completion of certain railway works in which it is interested: AND WHAS at the sd meeting of the sd shareholders of the old co, held on the 14th day of June, 1866, a committee was appointed for the ppose of assisting and advising the liqs in the administration of the estate of the old co; and such committee is now composed of the parties hto of the former pt: AND WHAS by a circular addressed to the sd shareholders, and dated the 6th day of July, 1870, the sd committee proposed the formation of a Form 726. new co, which should take over the assets of the old co remaining unrealised, according to a plan explained in the sd circular: AND WHAS by a resolution passed unanimously at a meeting of the sd shareholders, held on the 4th day of July, 1870, the sd plan was approved of, subject to such modifications in the details as the sd committee might sanction; AND a very large number of the sd shareholders also individually signified their approval of the same plan, subject to such modifications as afsd: AND WHAS, after applicon had been made to the High Ct of Chancery for its sanction of an agreemt intended to carry the sd plan into effect, certain modifications were made in that agreemt, which, as so modified, was approved by a special resolution of the old co, passed and confirmed at general meetings thereof, held respively on the 12th and 31st days of May, 1871: AND WHAS upon the further hearing of the sd applicon on the 12th day of June, 1871, the ViceChancellor Bacon, to whose branch of the High Ct of Chancery the winding-up of the old co is attached, approved of the sd agreemt as so modified: AND WHAS the Imperial Credit Co, Limtd (hereinafter called the new co), has since been incorporated under the Companies Acts, 1862 and 1867; and the parties hto of the former part, acting so far as they lawfully may on behalf of the old co, have entered into this agreemt, the terms of which correspond with those of the sd agreemt so approved as afsd, and intend to apply for the sanction of the High Ct of Chancery to be formally given it: Now THESE PRESENTS WITNESS that it is hby mutually agreed as follows: 1. The parties hto of the former pt do not in any case personally The agreement undertake any liability hereunder, nor shall the new co be bound hby is conditional. further than as this agreemt, either as it now stands or with any modifications, shall by the High Ct of Chancery be sanctioned and ordered to be carried into effect by the liqs of the old co. 2. Subject to the foregoing condition as to the binding force of this Agreement to agremt, the old co shall sell to the new co which shall pchase: All and sell. singular the real and personal, and heritable or moveable, ppty, effects, and things in action belonging to the old co, of what nature or kind. soever, and wheresoever situate or recoverable, together with the full benefit of all securities, real or personal, heritable or moveable, held by the old co for any of the said things in action; such sale expressly including all cash balances in the hands of the old co or of its liqs, or at the credit of any banking account of the sd liqs, all arrears of calls on the shares of the old co up to the said amount of 277. 10s. per share, and all sums of money recoverable on the ground of misfeasance or breach of trust (a) from any directors of the old co or other persons, whether the same be or not the subject of any Chancery suit now pending, but saving and reserving to the old co its uncalled share capital, and to the sd liqs the power in the meantime before this agreemt shall have become binding on them, at their discretion, to realise for the ultimate benefit of the old or new co, as the case may be, all or any pt of the ppty, effects, Form 726. and things in action hby agreed to be sold, or the securities for the Delivery. Debts of old company to be paid by new one. Costs of winding up of old company. Account to be kept of pro ceeds of realisation. same. (a) Where, upon a reconstruction, the old company had transferred to the new one all its "property, estates, and effects, with the appurtenances," including a mortgage, "with the benefit of all securities" for the amount due, it was held that a right of action which the old company had against one of its directors for breach of trust, in respect of the mortgage, did not pass to the new company. New Westminster Brewery v. Hannah, W. N. 1876, 215; affirmed on appeal. But see Parkgate Wagon Co., 17 C. Div. 234, where very similar words were held to pass a claim against the directors. 3. The old co and its liqs, immediately on this agreemt becoming binding on them, shall deliver to the new co all such pts of the sd ppty, effects, things in action, and securities as shall be capable of delivery, and they shall, at the cost of the new co, execute and do all such conveyances, assignmts, power of attorney, instrumts, and things, as the new co shall from time to time reasonably require for carrying the sd sale into effect, either as to the whole or as to any pt or pts of the ppty, effects, things in action, and securities, herein comprised, the same to be settled, in case of difference, by and in the chambers of the judge to whose branch of the [High Ct of Chancery] the winding up of the old co is attached; and, in the meantime, it shall be lawful for the new co, in the name or names of the old co, or its liqs, but keeping them indemnified against all costs and damages which might arise thereby, to bring and defend actions and suits, and do all other things, either in England or elsewhere, which shall be necessary or expedient for obtaining the full benefit of the sd sale. 4. As a pt of the conson for the sd sale, the new co shall satisfy all the outstanding debts and liabilities of the old co (including the temporary loans afsd); as to the sd loans, by paying the same according to the terms on which they have been respively granted; as to any instalmts which any creditors of the old co may have omitted to receive, by paying the same when and as the same shall be duly demanded; as to such debts (if any) of the old co as have not yet been established, by paying the same when and as they shall be duly established; and as to all liabilities of the old co to provide any sums of money for the completion of any railway or other works, and all such other liabilities (if any) of the old co as have not yet been converted into debts, by discharging the same when and as they shall mature; And the new co shall at all times keep the old co and its liqs indemnified against the loans, debts, and liabilities hby agreed to be satisfied by the new co, and against all costs, charges, and expenses in respect thereof. 5. As a further pt of the sd conson the new co shall pay, and at all times keep the old co and its liqs indemnified against all the costs and expenses, whether past or future, of the winding up of the old co. 6. The amount of all monies which shall be received by the new co from the sale or getting in of or otherwise from or on account of and every the ppty, effects, and things in action hby agreed to be sold, any together with interest at the rate from time to time allowed by the Form 726. London and Westminster Bank on deposits, to be computed according to the practice adopted by the London joint-stock banks with current accounts, on the minimum credit balance, during each calendar month of the account by the present clause directed, shall be carried to the credit of an account to be kept by the new co, but without prejudice to the right of the new co, as owners, to manage, sell, get in, compound, release, and otherwise act at its absolute discretion with relation to the sd ppty, effects, and things in action hby agreed to be sold, nor shall the new co be under any obligation to preserve, set apart, or specifically account for, any monies of which the amount shall be carried to the credit of the sd account, but the applicon of the credit balance of such account as hereinafter declared shall only create a liability on the pt of the new co in the nature of a personal liability to credit or pay the amount so to be applied. on debit side 7. On the debit side of the account directed by the last preceding What items clause, there shall be entered all monies pd by the new co under to be entered Clauses 4 and 5 hereof, and all costs, charges, and expenses incurred by of account. the new co in or incidental to managing and realising the assets hereby agreed to be sold, including such fair proportion of the salaries pd by the new co, and of their office and other expenses, as may be properly attributable to such realisation; and in case the new co shall deem it advisable for the completion of any railway or other works in which the old co is interested, or otherwise for the improvemt of any assets hby agreed to be sold, to make any advances or investmts which the old co is now under liability to make, then the amount of every such advance or investmt shall be debited, and the repaymt thereof or the returns therefrom shall be credited, in the sd account as if the old co had been under liability to make the same; and on all monies debited in the sd account interest shall also be debited, until the repaymt thereof by means of the sd account, at the rate of 5 p. c. p. a. or such higher rate as may be 1 p. c. above the minimum rate of discount at the Bank of England for the time being. distribution 8. Subject to reasonable provision being made for contingencies in Provision of respect of paymts which may subsequently have to be debited with the periodical sd account, the credit balance of the sd account (hereinafter called among the surplus) shall, from time to time, as the residue of the conson members of for the sd sale, be divided and pd among and to the contribs entled to participate, and in the proportions in which they shall be entled to participate in the assets of the old co remaining after paymt of its debts. old company. contributories 9. Nevertheless, every such contributory shall be entled to require Option to the new co to allot to him one of its shares, of the nominal amount to take shares of 107. for each share in the old co in respect of which he is entled to in new comparticipate in the surplus, and from time to time to credit towards the pany. nominal amount of the share so to be allotted, until it shall be thereby pd up to the amount of 77. 10s., all that proportion of the surplus to Form 726. which in respect of the corresponding share of the old co he may be entled, except so far as such proportion shall arise from periodical income produced by any assets hby agreed to be sold, or by any such advances or investmts as are hinbefore permitted to be made for the improvemt of assets hby agreed to be sold. Footing on which shares to be taken. Shares in new company allotted to members of old one to be deemed in part paid up. Issue of liquidation certificates to assenting members. Assenting members to sign acknow ledgment and discharge. How long shares of new company to be reserved. Assenting contributories bound by pro 10. The acceptance of any share in the new co on the footing of the last preceding clause, shall give to the new co the right of receiving, from time to time, for its own benefit, and distributing by way of dividend on its share capital, so much of that proportion of the surplus to which, in respect of the corresponding share in the old co, the acceptor may be entled, as shall arise from such periodical income as afsd, and this as well after as before the share so accepted shall have been pd up to the amount of 77. 10s. 11. The assets hby agreed to be sold, being of a value far exceeding 7. 108. per share, every share in the new co accepted on the footing of Clause 9 hereof shall, immediately, be deemed to be pd up thereby to the amount of 77. 10s., for all pposes of dividend and otherwise, except the actual paying it up to that amount out of the acceptor's proportion of the surplus, pursuant to the sd Clause 9; and the certificate to be given, pending such actual paying up, for shares in the new co, accepted as afsd, shall accordingly describe them as pd up to the amount of 77. 108., pursuant to and subject to this agreemt. 12. To those contribs of the old co who shall accept shares in the new co on the footing of Clause 9 hereof, the new co shall give certificates, to be called "deferred liquidon certificates," and to be transferable by indorsemt, expressing the right of those contribs or of the holders to receive from the new co, in cash, the proper proportion of the surplus, so far as the same shall not arise from such periodical income as afsd, and subject to the previous paymt thereout of 77. 10s. per share on the corresponding share in the new co. 13. Every contriby, on receiving his certificate of shares in the new co, with corresponding deferred liquidon certificates, shall sign and give to the liqs of the old co an acknowledgmt that the same are in full discharge of his proportional interest in the assets hby agreed to be sold. 14. The new co shall not be bound to reserve any of its shares for allotmt to contribs, pursuant to Clause 9 hereof, after the expiration of one calendar month from the date of the sanction of the Ct being given to this agreemt; but so long as any such shares remain, the directors of the new co may at their discretion, allot them on the terms of the sd clause, but always on condition of the applicant paying up on them to the new co the same amount which would have been pd up on them if they had been claimed at first. 15. Every contriby of the old co who shall accept shares in the new co, shall be bound by all paymts and allowances already passed by the sd committee in respect of the expenses of the liquidon, liquidation. and also by all accounts of the surplus which shall from time to time be ceedings in |