Cap. 379 - Overseas Trust Bank (Acquisition) Ordinance

To provide for the acquisition by the Government of the Overseas Trust Bank Limited, the compensation payable in respect of such acquisition and the carrying on of the business of that Bank and for connected purposes. [8 June 1985](Format changes—E.R. 6 of 2021) 1. Short title This Ordinance may be cited as the Overseas Trust Bank (Acquisition) Ordinance. 2. Interpretation In this Ordinance, unless the context otherwise requires—*commencement (生效日期) means the commencement of this Ordinance;company (海託) means the Overseas Trust Bank Limited (海外信託銀行有限公司); (Amended E.R. 6 of 2021)former director (前董事) means any director of the company or any of its subsidiaries removed from office upon commencement; (Amended 80 of 1993 s. 2)subsidiary (附屬公司) has the same meaning as in the Companies Ordinance (Cap. 622). (Amended 28 of 2012 ss. 912 & 920) Editorial Note: * Commencement date: 8 June 1985. 3. (Repealed 80 of 1993 s. 8) 4. Continued use of property etc. (1) Where immediately before commencement any property, facility or service, not being the property of or provided by the company or any subsidiary thereof, was being used, enjoyed or employed by the company or any of its subsidiaries in the carrying on of its business, the company and its subsidiaries may continue, notwithstanding any agreement to the contrary, to use, enjoy or employ such property, facility or service upon the same terms and conditions, subject to section 6(3), as were applicable before commencement. (Amended 80 of 1993 s. 3)(2) Subsection (1) shall cease to have effect on the commencement+ of the Overseas Trust Bank (Acquisition) (Amendment) Ordinance 1993 (80 of 1993). (Added 80 of 1993 s. 3)(3) Section 23 of the Interpretation and General Clauses Ordinance (Cap. 1) applies to the cessation to have effect of subsection (1) by virtue of subsection (2) and for this purpose, such cessation shall be regarded as the repeal of subsection (1) by subsection (2). (Added 80 of 1993 s. 3) Editorial Note: + Commencement date: 19 November 1993. 5. Determination of rights to require the issue of shares, to nominate directors or to exercise control (1) If, after commencement, a person other than the Financial Secretary Incorporated would, apart from this Ordinance, have— (Amended L.N. 180 of 1985)(a) a right to require the issue of, or to subscribe for or purchase, or otherwise acquire, any shares in the capital of the company or any subsidiary thereof;(b) a right to appoint any person, or to be appointed as a director of the company or any subsidiary thereof;(c) a right, whether express or implied, to exercise, whether wholly or in part, any power of control or direction of the company, its management or assets or undertaking, or any subsidiary,that right shall, subject to subsection (2), cease. (Amended 80 of 1993 s. 4)(2) Subsection (1)—(a) does not apply to any right acquired, derived or subsisting under or by virtue of an agreement dated 31 July 1993 between the Financial Secretary Incorporated and Guoco Group Limited for the sale and purchase of the shares in the capital of the company;(b) shall cease to have effect on the commencement+ of the Overseas Trust Bank (Acquisition) (Amendment) Ordinance 1993 (80 of 1993). (Added 80 of 1993 s. 4)(3) Section 23 of the Interpretation and General Clauses Ordinance (Cap. 1) applies to the cessation to have effect of subsection (1) by virtue of subsection (2) and for this purpose, such cessation shall be regarded as the repeal of subsection (1) by subsection (2). (Added 80 of 1993 s. 4) Editorial Note: + Commencement date: 19 November 1993. 6. Safeguarding assets and avoidance of certain transactions (1)-(2) (Repealed 80 of 1993 s. 8)(3) Where the company or any subsidiary thereof has, within the period of 12 months before commencement, entered into a transaction which, in the opinion of the Financial Secretary, was of such a nature as, and at the time it was entered into, could reasonably have been foreseen by the company or the subsidiary to be likely—(a) to cause a loss to the company or the subsidiary; or(b) to impose a liability on it substantially greater than any benefit to it,and which, in the opinion of the Financial Secretary, either—(i) was both an unusual transaction for the company or the subsidiary to enter into, having regard to the business of the company or the subsidiary, and not reasonably necessary for the purpose of that business having regard to the circumstances at that time; or(ii) was a transaction entered into otherwise than in the ordinary course of the company’s or subsidiary’s business and on such terms or with such a party as to indicate an unreasonable lack of prudence on the part of the company, or the subsidiary, having regard to the circumstances at the time of the transaction,and, on commencement, the transaction remains in whole or in part unperformed or unexpired, the company or subsidiary shall, if so directed by the Financial Secretary, by notice in writing given to the other parties to the transaction disclaim that transaction.(4) Where a notice of disclaimer is given under subsection (3) with respect to an agreement or lease, the agreement shall be deemed to be frustrated or, as the case may be, the lease shall be deemed to be surrendered on the date on which the notice of disclaimer becomes final, and for that reason the parties thereto shall be deemed to be discharged from the further performance of their obligations under the agreement or lease.(5) Where an agreement is deemed to be frustrated by virtue of subsection (4), section 17 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) shall not apply to that agreement. 7. (Repealed 80 of 1993 s. 8) 8. Guarantee by Government (1)-(2) (Repealed 80 of 1993 s. 5)(3) Any guarantee given by the Financial Secretary under this section prior to the commencement# of the Overseas Trust Bank (Acquisition) (Amendment) Ordinance 1993 (80 of 1993) shall cease to have effect upon such commencement. (Added 80 of 1993 s. 5) Editorial Note: # Commencement date: 19 November 1993. 9. Compensation (1) (Repealed 80 of 1993 s. 6)(2) Any person who suffers loss by reason of the operation of section 4, the cessation of any right under section 5 or the disclaimer of a transaction under section 6(3) shall, in accordance with any regulations under section 10 read with subsection (3), be entitled to compensation in respect of such loss.(3) The following matters may be prescribed—(a) the manner of determining the amount of compensation payable under subsection (2);(b) the factors to be taken into account or disregarded, and the principles to be applied in determining such amount;(c) the time and manner of payment of such compensation;(d) whether and what interest shall be payable in respect of such compensation;(e) the denial of compensation under subsection (2) to any former director who has engaged in any transaction which could be disclaimed under section 6(3) if it were in whole or in part unperformed or unexpired;(f) any matter incidental to the matters specified in subsection (2) or paragraphs (a) to (e). (Amended 80 of 1993 s. 6) 10. Power to make regulations (1) The Financial Secretary may make regulations—(a) prescribing anything that may be prescribed under this Ordinance; and (Amended 80 of 1993 s. 7)(b) (Repealed 80 of 1993 s. 7)(c) providing for the better carrying into effect of the purposes and provisions of this Ordinance.(2) Regulations under subsection (1) shall have effect notwithstanding anything to the contrary in the Companies Ordinance (Cap. 622), the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32), the Banking Ordinance (Cap. 155) and the articles of association of the company or any subsidiary thereof. (Amended 27 of 1986 s. 137; 28 of 2012 ss. 912 & 920) 11. (Repealed 80 of 1993 s. 8) 12. (Repealed 80 of 1993 s. 8)