or on the receipt of an intimation from the member that he declines to accept the debentures, the same may be offered by the new company for public subscription, or otherwise disposed of as it shall think fit. These presents [supra, p. 492]. IN WITNESS, &c. THE FIRST SCHEDULE ABOVE REFERRED TO. Forms. Forms. THE FOURTH SCHEDULE ABOVE REFERRED TO. Parties. Recitals. The special resolutions of the old company will be similar to those given above, p. 495, mutatis mutandis. THE FIFTH SCHEDULE ABOVE REFERRED TO. [This contained copies of the draft deed of trust and mortgage debenture mentioned in Clause 12.] SCHEME V. 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 AGREEMENT 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 part, and the Imperial Credit Company, Limited, of the other part: WHEREAS the Imperial Mercantile Credit Association, Limited (hereinafter called the old company), has a nominal capital of 5,000,000l., divided into 100,000 shares of 507. each: AND WHEREAS a special resolution for the voluntary winding up of the old company was passed and confirmed at general meetings thereof, held respectively 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 said voluntary winding up should be continued, but subject to the supervision of the High Court of Chancery: AND WHEREAS by calls made partly before and partly under the said winding up, the shares in the old company have been called up to the amount of 271. 10s. in all, leaving 227. 10s. per share still uncalled thereon: AND WHEREAS by means of such calls, of the assets realised, and of temporary loans made to the old company or its liquida tors, the debts proved against or admitted by the old company, other than those due in respect of such loans, have all been paid, except so far as any of the creditors of the old company have omitted to receive any of the instalments which, however, are lying ready to be paid them: AND WHEREAS the old company is under a liability to provide certain sums of money for the completion of certain railway works in which it is interested: AND WHEREAS at the said meeting of the said shareholders of the old company, held on the 14th day of June, 1866, a committee was appointed for the purpose of assisting and advising the liquidators in the administration of the estate of the old company; and such committee is now composed of the parties hereto of the former part: AND WHEREAS by a circular addressed to the said shareholders, and dated the 6th day of July, 1870, the said committee proposed the formation of a new company, which should take over the assets of the old company remaining unrealised, according to a plan explained in the said circular: AND WHEREAS by a resolution passed unanimously at a meeting of the said shareholders, held on the 4th day of July, 1870, the said plan was approved of, subject to such modifications in the details as the said committee might sanction; AND a very large number of the said shareholders also individually signified their approval of the same plan, subject to such modifications as aforesaid: AND WHEREAS, after application had been made to the High Court of Chancery for its sanction of an agreement intended to carry the said plan into effect, certain modifications were made in that agreement, which, as so modified, was approved by a special resolution of the old company, passed and confirmed at general meetings thereof, held respectively on the 12th and 31st days of May, 1871: AND WHEREAS upon the further hearing of the said application on the 12th day of June, 1871, the Vice-Chancellor Bacon, to whose branch of the High Court of Chancery the winding up of the old company is attached, approved of the said agreement as so modified: AND WHEREAS the Imperial Credit Company, Limited (hereinafter called the new company), has since been incorporated under the Companies Acts, 1862 and 1867; and the parties hereto of the former part, acting so far as they lawfully may on behalf of the old company, have entered into this agreement, the terms of which correspond with those of the said agreement Forms. Forms. The agree ment is conditional. Agreement to sell. Delivery. so approved as aforesaid, and intend to apply for the sanction of the High Court of Chancery to be formally given to it: NOW THESE PRESENTS WITNESS that it is hereby mutually agreed as follows: 1. The parties hereto of the former part do not in any case personally undertake any liability hereunder, nor shall the new company be bound hereby further than as this agreement, either as it now stands or with any modifications, shall by the High Court of Chancery be sanctioned and ordered to be carried into effect by the liquidators of the old company. 2. Subject to the foregoing condition as to the binding force of this agreement, the old company shall sell to the new company which shall purchase: All and singular the real and personal, and heritable or moveable, property, effects, and things in action belonging to the old company, 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 company for any of the said things in action; such sale expressly including all cash balances in the hands of the old company or of its liquidators, or at the credit of any banking account of the said liquidators, all arrears of calls on the shares of the old company 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 company or other persons, whether the same be or not the subject of any Chancery suit now pending, but saving and reserving to the old company its uncalled share capital, and to the said liquidators the power in the meantime before this agreement shall have become binding on them, at their discretion, to realise for the ultimate benefit of the old or new company, as the case may be, all or any part of the property, effects, and things in action hereby agreed to be sold, or the securities for the 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. 3. The old company and its liquidators, immediately on this agreement becoming binding on them, shall deliver to the new company all such parts of the said property, effects, things in action, and securities as shall be capable of delivery, and they shall, at the cost of the new company, execute and do all such conveyances, assignments, power of attorney, instruments, and things, as the new company shall from time to time reasonably require for carrying the said sale into effect, either as to the whole or as to any part or parts of the property, 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 Court of Chancery the winding up of the old company is attached; and, in the meantime, it shall be lawful for the new company, in the name or names of the old company, or its liquidators, 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 said sale. 4. As a part of the consideration for the said sale, the new company shall satisfy all the outstanding debts and liabilities of the old company (including the temporary loans aforesaid); as to the said loans, by paying the same according to the terms on which they have been respectively granted; as to any instalments which any creditors of the old company 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 company 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 company, 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 company as have not yet been converted into debts, by discharging the same when and as they shall mature; And the new company shall at all times keep the old company and its liquidators indemnified against the loans, debts, and liabilities hereby agreed to be satisfied by the new company, and against all costs, charges, and expenses in respect thereof. 5. As a further part of the said consideration, the new company shall pay, and at all times keep the old company and its liquidators indemnified against all the costs and expenses, whether past or future, of the winding up of the old company. Forms. Debts of old company to be paid by new one. Costs of winding up of old company. |