31 Victoria, c. 18 (Canada)
An Act to amend the Act of Incorporation of the Commercial Bank of Canada, to authorize its amalgamation with any other Bank or Banks, or for its winding up
[Assented to 21st December, 1867.]
WHEREAS under and pursuant to the provisions of the Act of the Parliament of the late Province of Canada, passed in the session held in the nineteenth and twentieth years of Her Majesty's reign, chaptered one hundred and twenty, and intituled : An Act to amend and consolidate the Acts relating to the Commercial Bank of the Midland District, and to change its corporate name to the Commercial Bank of Canada
, the Commercial Bank of Canada has been carrying on its business of bankers ; and whereas the said Commercial Bank of Canada has, by its petition, represented, that it is unable at present to meet its bank-notes in circulation, claims of depositors, and other debts, in specie upon demand, although possessed of assets more than sufficient to pay all its liabilities in full if such assets are properly realized and applied, and hath prayed that under the said circumstances an Act of the Parliament of Canada should he passed to contain the provisions hereinafter mentioned ; and whereas it is expedient to grant the prayer of the said petition : Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows :
Charter not forfeited for 90 days after passing of this Act
1. Notwithstanding anything contained in the thirty-fifth section of the said recited Act, the suspension by the said Bank of payment on demand in specie of the notes or bills of the said Bank shall not operate as, or be any forfeiture of the charter or corporate privileges of the said Bank, unless such suspension shall continue for the period of ninety days from and after the passing of this Act, although the period of sixty days limited by the said recited Act shall have expired before the passing of this Act.
REDUCTION AND INCREASE OF CAPITAL.
Reduction of capital and how effected
The Directors of the said Bank may by by-law reduce the amount of the capital stock of the said Bank from four millions of dollars, to such sum, not less than one million of dollars, as shall be fixed in and by the by-law, and such reduction may be in the nominal amount of each share in the capital stock, or otherwise, as may be provided by such by-law ;
but notwithstanding such reduction the liability of the stockholders of the said Bank to the present creditors of the said Bank, under the thirty-eighth section of the said recited Act, shall remain in full force and effect, and not in the least altered or in anywise diminished or impaired :
(2) Concurrently with such reduction of the said capital stock, or subsequently thereto, the said Directors may by by-law, or by-laws, from time to time increase the capital stock, (but so that it shall not exceed in all the said original amount of four millions of dollars)—by the issue of new or additional shares, to be each of the same nominal value as the other shares of the said Bank ;
Number of additional shares, &c., to be specified in By-law
(3) The said by-law or by-laws shall specify the number of such additional shares, which are then to be added to the capital stock, and the time, place, manner, and other conditions to be observed in the subscription and payment of the same, and such additional shares shall not be issued at less than the par value thereof, and at least fourteen days' public notice of the opening of books of subscription for the said shares shall be given, by advertisement, once in each week in the Official Gazette, and twice in each week in one or more of the daily newspapers published in the Cities of Kingston, Montreal, and Toronto, respectively ;
If more be subscribed for : how allotted
(4) In case more than the whole number of additional shares be subscribed for, than in the allotment thereof, the present shareholders of the said Bank shall be entitled to receive the full amount of the additional shares subscribed for by them respectively, in preference to new subscribers ; and in case of any competition between such present shareholders, then their respective proportions shall be determined according to the amounts of their present shares respectively, and should an insufficient number of additional shares be subscribed for, the said directors may, in their discretion, withhold any allotment thereof ;
(5) Every such additional share shall be paid in full within two years from the passing of this Act, and every subscriber or holder thereof shall be entitled to a share of the profits of the said Bank in proportion to the sum actually paid in upon each share, from the period at which such sum was so paid, and any holder shall be entitled to vote in respect of the shares held by him unless he shall be in default in respect of any calls upon such shares ;
Right of new shareholders
(6) Every person subscribing for or holding any share or shares in the said additional capital stock, shall have the same rights and be subject to the same liabilities as the other shareholders in the said Bank ;
(7) Each share in the said Bank shall entitle the holder thereof to one vote in respect thereof, notwithstanding anything in the said heretofore recited Act contained ;
Principal office may be removed
The Directors of the Commercial Bank of Canada may, by by-law, from time to time remove the principal office of the said Bank to such place or places in Canada as they shall deem meet, but any such by-law, to be valid, shall be confirmed at the special general meeting of the seventeenth day of December next, or at any adjournment thereof, or at any future special general meeting of the shareholders of the said Bank, as the case may be,
General meetings in such case
and in the event of such removal the annual and other general meetings of the said bank shall take place and be held at the place to which the chief office shall be so removed.
CLAUSES AS TO AMALGAMATION.
Agreement for amalgamation with another Bank ; how to be under and confirmed
3. The Directors of the said Bank may enter into an agreement with any other banking institution or institutions for an amalgamation, and may determine upon the terms of such amalgamation and the relative values of the stock of the said Bank and of such amalgamating bank or banks, and may agree upon such other terms for the conduct, management and general relations of the amalgamated institutions, as the Directors of the said Banks may think best, not, however, being inconsistent with or in excess of the powers conferred by their respective Acts of Incorporation ; such agreement shall not, however, be valid until confirmed by a majority of such of the shareholders of the Commercial Bank of Canada, as shall be present either in person or by proxy, at the special general meeting of the shareholders, convened for the seventeenth day of December, one thousand eight hundred and sixty-seven, or at any adjournment thereof, or at any future special general meeting called for that purpose.
Directors of the other Bank empowered to agree
The Directors of any other banking institution or institutions are hereby authorized to enter into an agreement of amalgamation with the Commercial Bank of Canada, to the purport and effect set forth in the last preceding section,
Confirmation by shareholders
but such agreement shall not he valid until confirmed at a Special General Meeting called for the purpose of the shareholders of the bank or banks so entering into the said agreement.
Mode of carrying out the Union and its effect
The terms of the agreement of amalgamation shall be set forth in a formal indenture of Union, executed by the said respective banks parties thereto, and upon the filing of a duplicate thereof in the office of the Secretary of State for Canada, such amalgamation shall be taken to be fully complete, and the said amalgamated banks shall thereafter be deemed to be one corporation, under such name, not being the name of any other Bank not entering into such amalgamation, as may be declared in such indenture,
Corporate powers after union
and shall possess all the corporate powers, rights and privileges theretofore held, enjoyed or possessed by any or either of the said respective banks, and the provisions contained in their respective Acts of Incorporation shall apply to the said amalgamated bank, which shall in all respects be subject to and be regulated by the said provisions, except in so far as the same may be varied by the terms of the said indenture of union or this Act ;
In case of conflict of provisions of the charters of the two Banks
and in case of any conflict between the terms of the provisions contained in the said respective Acts of Incorporation, those contained in the said recited Act of Incorporation of the Commercial Bank of Canada shall be construed, taken and held to govern the said amalgamated bank ; and immediately after the filing of the said indenture in the office of the said Secretary of State, a copy of the same certified by the said Secretary, shall be published at length in the Official Gazette
at the expense of the said Bank.
Indenture of Union how proved
6. The production of the said indenture of union, with the certificate thereon endorsed of the Secretary of State for Canada of the filing of the duplicate thereof, in his office, or the production of a copy of such duplicate indenture certified by the said Secretary of State, or of a copy of the Official Gazette in which the said indenture has been published, under the last preceding section, shall be conclusive evidence, in all Courts and proceedings, of the execution and filing of the said indenture, without further or other proof, and shall also be primâ facie evidence, without further proof, in all Courts and proceedings, of the complete union and incorporation into one corporation of the said amalgamated institutions.
United Bank may increase its capital : Limitation
7. The said amalgamated bank may, by by-law or by-laws, and upon the terms set forth in such by-laws, from time to time increase their capital stock, but the additions thereto shall not exceed the amount of the original capital stock of the Commercial Bank of Canada and of such amalgamating bank or banks, as authorized by their respective Acts of Incorporation :
Requisites of By-laws for increasing capital
Any such by-law or by-laws shall contain the same requisites, as are hereinbefore set forth, with respect to by-laws to increase the capital stock of the Commercial Bank of Canada, and the provisions hereinbefore set forth in sub-sections three, four, five and six of section two of this Act shall apply to the increase of capital stock authorized by this section, as if re-enacted with respect to the same ;
Confirmation by shareholders
no such by-law shall be valid until confirmed by a majority of such of the Shareholders as shall be present in person or by proxy at a Special General Meeting of the shareholders of the amalgamated bank called for that purpose.
8. The indenture of union, hereinbefore mentioned, may provide for the place where the head or principal office of the amalgamated bank shall be situate, and may also contain provisions for the removal of such principal office from time to time.
Effect of Union as to shareholders
9. taking place, the shareholders of the respective banks so amalgamating shall (ipso facto) become the shareholders of the said amalgamated bank in the amounts and according to the relative values of the stocks of the amagalmated banks, as provided for and set forth in the said indenture of union :
Each share to give one vote
(2) And notwithstanding anything to the contrary contained in the several Acts of Incorporation relating to the said banks, each share in the capital stock of the said united corporation shall entitle the holder thereof to one vote at all general meetings of the shareholders of the said bank, unless he shall be in default in respect of any calls upon such share ;
Estates and assets to be voted in new Corporation
(3) And thereupon also all the estate and effects, real and personal, rights, property, credits, chores in action, claims and demands of whatsoever nature or quality, or wherever situate, of each of the amalgamating Banks, shall forthwith become vested in the said amalgamated corporation, its successors and assigns, as for its own use and benefit absolutely, and it may, in its own name, sue for, collect and get in, any or any part of the said estate, rights or effects ;
Liabilities of new Corporation
(4) And the said amalgamated corporation shall forthwith also become subject and liable to pay and discharge all of the debts, obligations, bills, promissory notes or other liabilities of each of the said amalgamated banks, and may be directly sued and proceeded against in respect thereof, as fully and effectually as if the same were. originally, and they shall be taken and construed so to be, the debts, obligations, promissory notes and liabilities of the said amalgamated corporation.
Obligations of sureties for debts, &c., not affected
10. The amalgamation taking effect as hereinbefore provided, shall in no way release, affect or discharge the liability or obligation of any surety to any or either of the amalgamating banks, for or in respect of any bill, debt, claim, service, employment, or matter, or thing whatsoever, but the said liability and obligation shall continue in full force and effect, and shall be taken and construed to be a liability or obligation in favor of the said amalgamated corporation, as if the same had been originally and directly given to or entered into with the said last mentioned corporation.
CLAUSES AS TO WINDING UP.
Provision if the Bank can neither resume nor amalgamate with another
In the event of the Commercial Bank of Canada not being able to resume its business, or in case no such amalgamation takes place as hereinbefore provided, then it shall and may be lawful, at the meeting of the shareholders thereof, convened for the seventeenth day of December aforesaid, or at any adjournment thereof, or at any future special general meeting, held within ninety days from the passing of this Act, to provide for its winding up and the liquidation of its liabilities, by the execution, within the said period of ninety days, os a deed of assignment of all its estate and effects to three trustees, to be named therein—
Assignment to be made to Trustee:, who shall be a Corporation : their general powers
such deed and assignment to be in the form of schedule A, to this Act ; and the said trustees and their successors shall he deemed and taken to be a body corporate, and by the name of the " Trustees of the Commercial Bank of Canada," may have, hold, take, receive, grant, alien, assign, transfer, release, and convey all or any part of the said trust estate and effects, and by the same name may bring or defend any action, suit, or proceeding, and do, execute or perform any act, deed, matter, or thing, which they may think necessary in the performance or execution of the trusts of the said assignment ; but notwithstanding any such incorporation, in any action, suit or proceeding, brought or prosecuted by thy said Trustees, they shall not possess any other or different or higher rights or remedies than the Bank would have had, if suing in its own name.
How the Trustees shall be chosen
The Trustees to be named in the said deed of assignment shall be nominated as follows : two thereof by the shareholders of the said Bank, at the meeting provided for in the last preceding section, at which the winding up of the said Bank is determined upon, and the third of the said Trustees shall be appointed to represent the interests of the creditors of the said Bank by the Court of Chancery, or a Judge thereof, and such appointment shall be made upon the summary application of the said Bank to such Court or Judge ;
Notice of application by creditors
but notice of such application shall be given to the creditors of the said Bank, in such manner as the Court or Judge may direct ; and the Court or Judge may direct in what manner the creditors, by classes or otherwise, may be represented upon such application ;
If the liabilities are then less than $500,000
If, however, at the lime of the meeting of the said shareholders at which such winding up is determined upon, the liabilities of the said Bank shall have been reduced to within the sum of five hundred thousand dollars, then the said third trustee shall also be appointed at the aforesaid meeting of the said shareholders, and the provision hereinbefore contained with respect to the appointment of such third trustee by the Court of Chancery or a Judge thereof, shall be and become inoperative.
Provisions to be contained in the assignment: powers of Trustees
13. Such deed of assignment shall be construed to contain the following special provisions :—
(1) The said trustees shall have power to carry on or continue so much of the operations of the Bank as may be necessary for the beneficial winding up of the same ;
Disposing of property and assets
To sell the real and personal, mixed and moveable property, effects and things in action of the Bank, by public or private contract, with power, if they think fit, and upon the concurrence of a majority of the shareholders, present in person or by proxy, at any special general meeting to be called for such purpose, (and provided that by the terms of such sale the payment in full of the claims of all of the creditors shall not be deferred beyond the period of six months thereafter,)
Sale of the whole to a Bank
to sell and transfer all of the said estate and effects to any bank or banks, upon such terms and conditions as may be agreed upon, and in such case the execution by the said trustees of a deed to the form and effect set forth in schedule B. to this Act shall be deemed and taken to vest in such purchasing bank, all such estate and effects, and such deed shall and may be validly registered in any registry office with respect to lands by the production and filing of a duplicate thereof with a memorandum or schedule thereunder or annexed thereto of the particular lands or real estate lying within the limits for which such office is the proper osfice for registry ;
(3) To execute on behalf of the Bank and in their name as trustees all deeds, receipts and other documents they may think necessary ;
(4) To refer disputes to arbitration, and to compound claims ; also to renew or extend time of payment of bills or debts payable to the Bank ;
(5) To do or execute in the name of the Bank or otherwise all such other things as may be necessary for the winding up the affairs of the bank and distributing its assets ;
Depositing money collected
(6) It shall be the duty of the trustees to deposit day by day all current moneys received by them in one or more of the Incorporated or Chartered Banks, and no amount shall be withdrawn therefrom except upon the check of at least two of the trustees ;
Appointing accountants, &c
(7) The trustees may appoint such accountants, book-keepers and others as may be necessary to assist in the winding up of the trust estate and may pay them reasonable salaries and remuneration therefor ;
Making balance sheets, statements, &c
(8) The trustees shall make up a balance sheet and statement of the affairs of the trust at least once in every month until the estate is wound up, and such statement shall be published at least once on the expiration of each month in one of the daily newspaper published at the cities of Kingston, Montreal, and Toronto, respectively ;
(9) The trustees shall from time to time and at the earliest times possible, declare and pay dividends to the creditors of the said Bank rateably and in proportion to their respective claims, and shall, upon demand, in exchange for other vouchers, issue certificates bearing interest at the rate of six per cent per annum of the amount due to any creditor ;
(10) The trustees shall, after payment in full of the claims of creditors, pay, divide or apportion (as the case may be) any of the remaining assets of the said Bank or residue of the trust estate, unto and amongst the shareholders of the said Bank according to the amount of shares held by them respectively, and any of such assets may be sold or valued and apportioned specifically ;
(11) The trustees shall meet at least once in every two weeks and at any time any two of them upon six days' notice to the other may convene and hold any special meeting ;
(12) The trustees shall semi-annually on the first Wednesday in the months of May and November in each year at a general meeting of the creditors and shareholders to be held at noon at the principal office of the said Bank in the city of Kingston, submst a full statement of the affairs and position of the said trust estate.
Estate and effects of the Bank vested in the Trustees
Immediately upon the execution of the said deed of assignment, all of the estate and effects of the said Bank shall become vested in the said trustees and for the purposes mentioned in the said assignment and according to the provisions thereof,
Registration how effected
and it shall be unnecessary to file or register any copy of the said deed in any office for filing or registry, with respect to real or personal property in Canada, but the said deed may at any time be validly registered in any registry office with respect to lands, by the production and filing of a duplicate thereof, with a schedule or memorandum thereunder or annexed thereto of the particular lands within the limits of such registry office.
15. deeds, bills, notes, cheques, certificates, vouchers or other documents necessary to be executed or given by the trustees shall be signed by at least two of the said trustees.
16. The trustees shall be entitled to receive such remuneration, in equal proportions, and in such manner as the shareholders may from time to time determine upon.
Trustees representing creditors to vacate when the claims have been paid in full or reduced to less than $100,000
Whenever the claims of all of the creditors of the said Bank shall have been paid in full, or reduced to less than the sum of one hundred thousand dollars, the trustee appointed as the representative of-the creditors by the Court of Chancery, or a Judge thereof, shall thereupon vacate his said office, and the remaining trustees shall thereupon appoint a third trustee in his place, who shall remain and continue such trustee until the Special General Meeting of the shareholders of the said Bank, which shall be convened by the said trustees immediately after such appointment, and at which a majority of the stockholders present, in person or by proxy, may nominate and appoint such third trustee ;
Filling vacancies among the Trustees
And in case of any vacancy in the number of the trustees at any time arising by death, resignation, or any cause, when such vacancy shall occur with respect to any trustee appointed by the shareholders of the said Bank, the remaining or surviving trustee or trustees appointed by the said shareholders shall thereupon appoint any competent person to fill such vacancy until, at a special or other general meeting of the shareholders of the said Bank, a majority of the shareholders present in person or by proxy shall appoint the trustee to fill such vacancy ; and when such vacancy shall occur with respect to the trustee appointed by the Court of Chancery or a Judge thereof as aforesaid, then it shall be the duty of the remaining or surviving trustees to apply to the said Court or a Judge thereof for the appointment of a competent person to fill such vacancy, and the procedure upon such application shall be similar to that hereinbefore prescribed with respect to the original appointment of the third trustee.
Creditors or shareholders to a certain amount may apply to Chancery on matters connected with the Trust
18. Any creditors over the sum of ten thousand dollars, or any number of creditors whose claims jointly exceed the sum of ten thousand dollars, or any stockholder holding shares to the number of two hundred at least, or any number of stockholders holding shares to the number of two hundred, may-from time to time apply in a summary manner to the Court of Chancery or a Judge thereof in Chambers, upon notice to the trustees, in respect of any matter or thing connected with the management of the said trust, or with the disposition of the proceeds of the said trust estate, or in respect of any matter or thing connected therewith, and obtain the order and direction of the Court or Judge thereupon, and such order may be enforced in the same manner as the decrees or orders of the said Court, and any such order may, amongst other things, require the said trustee to submit statements and accounts of the said trust estate and the management thereof, and may direct the removal of any one or more of the said trustees and the appointment of new trustees, and may generally be to the purport or effect, which in the discretion of the said Court or Judge shall seem meet.
Trustees may apply to chancery for directions
19. The trustees may, from time to time, apply to the Court of Chancery, or a Judge thereof in Chambers, in a summary way, and obtain its direction on any matter connected with the management of the said trust, or the disposition of the proceeds of the said trust estate, or in respect of any other matter or thing connected therewith, and such order shall be an effectual protection and authority to the said trustees against any personal liability or further responsibility ; But, upon such application, the said Court or Judge may require that one or more of the creditors and one or more of the shareholders, or one or more of either class, shall be present on behalf of their respective interests.
Liability of shareholders not affected
20. Nothing in this Act contained, respecting the winding up of the said Bank, shall in anywise affect or vary the liability of any shareholder in the said Bank to any present creditor thereof, or the rights or remedies of any such creditor.
21. This Act may be cited and known as The Commercial Bank Act, 1867.
22. This Act shall be a Public Act.
The parties of the first part covenant with the parties of the second part for further assurance.