To provide for facilitating the vesting in Deutsche Bank Aktiengesellschaft of the undertaking of Deutsche Bank (Asia) Aktiengesellschaft; and for other related purposes. (Enacted 1988) [18 March 1988] (Originally 17 of 1988) Cap 1142 Preamble WHEREAS- (1) Deutsche Bank Aktiengesellschaft (hereinafter called "Deutsche Bank") is a company organised under the law of the Federal Republic of Germany having its registered place of business at Frankfurt am Main; (2) Deutsche Bank (Asia) Aktiengesellschaft (hereinafter called "DB Asia") is a company organised under the law of the Federal Republic of Germany having its registered place of business at Hamburg and is a wholly-owned subsidiary of Deutsche Bank; (3) DB Asia is a bank licensed under the Banking Ordinance (Cap 155) and carries on the business of banking in Hong Kong and elsewhere; (4) Deutsche Bank carries on the business of banking in the Federal Republic of Germany and elsewhere; (5) for the better conduct of the business of the Deutsche Bank group of companies, it is expedient that provision be made for the merger of undertakings by which that business is carried on by merging into Deutsche Bank the undertaking of DB Asia and that that merger of undertakings should be facilitated without interference with the conduct and continuity of that business; (6) such merger is to be carried out in accordance with the provisions of sections 340 and following of the Stock Corporation Act of the Federal Republic of Germany (Aktiengesetz) and pursuant to such Act, a merger agreement was executed on 2 December 1987 on behalf of Deutsche Bank and DB Asia and ratified by a resolution passed at a shareholders' meeting of DB Asia dated 11 January 1988; (7) such merger agreement is due to be filed with the Commercial Register of the District Court of Hamburg and with the Commercial Register of the District Court of Frankfurt am Main and thereafter the merger to be effected pursuant thereto will be registered with both such Commercial Registers; (8) on the registration of such merger with the Commercial Register of the District Court of Frankfurt am Main, DB Asia will be dissolved under the law of the Federal Republic of Germany and its undertaking merged into that of Deutsche Bank; (9) it is expedient to make provision to facilitate such merger insofar as it relates to that part of the undertaking of DB Asia which is governed by Hong Kong law or the transfer of which is governed by Hong Kong law or which is derived from the Hong Kong business of DB Asia: (Enacted 1988) Cap 1142 s 1 Short title This Ordinance may be cited as the Deutsche Bank (Merger) Ordinance. (Enacted 1988) Cap 1142 s 2 Interpretation (1) In this Ordinance, unless the subject or context otherwise requires- "appointed day" (指定日期) means the day on which the merger to be effected pursuant to the merger agreement is registered with the Commercial Register of the District Court of Frankfurt am Main; "customer" (客户) means any person having a banking account or other dealing, transaction or arrangement with DB Asia or, as the case may be, Deutsche Bank; "Deutsche Bank" means Deutsche Bank Aktiengesellschaft; "DB Asia" means Deutsche Bank (Asia) Aktiengesellschaft; "existing" (现有) means existing, outstanding or in force immediately before the appointed day; "liabilities" (法律扛任) includes duties and obligations of every description (whether present or future, actual or contingent); "merger agreement" (合并协议) means the merger agreement executed, pursuant to sections 340 and following of the Stock Corporation Act of the Federal Republic of Germany (Aktiengesetz), on 2 December 1987 on behalf of Deutsche Bank and DB Asia, and ratified by the shareholders' resolution; "property" (财产)means property and assets of every description and rights of every description (whether present or future, actual or contingent), and includes property held on trust and securities, benefits and powers of every description; "security" (抵押) includes a mortgage or charge (whether legal or equitable), debenture, bill of exchange, promissory note, guarantee,lien, pledge (whether actual or constructive), hypothecation, assignment by way of security, indemnity, right of set-off, undertaking or other means of securing payment or discharge of a liability (whether present or future, actual or contingent); "the undertaking" (业务) means the business and all existing property and liabilities of DB Asia of whatsoever nature; "will" (遗属) includes a codicil and any other testamentary writing. (2) Any reference in this Ordinance to property or liabilities of DB Asia is a reference to property or liabilities to which DB Asia is for the time being entitled or subject (whether beneficially or in any fiduciary capacity), wherever such property or liabilities are situated or arise and whether or not capable of being transferred or assigned by DB Asia, and whether DB Asia is entitled to such property or subject to such liabilities under the law of Hong Kong or under the law of any country or territory outside Hong Kong. (3) Any body politic or corporate and any other person or persons whose rights are affected by any of the provisions of this Ordinance shall be deemed to be mentioned herein. (Enacted 1988) Cap 1142 s 3 Notice of appointed day Deutsche Bank shall give notice in the Gazette of the day expected to be the appointed day save that, in the event that such day proves not to be the appointed day for any reason, Deutsche Bank shall give notice in the Gazette to that effect and shall again give notice in the Gazette of the next day expected to be the appointed day or, as the case may be, of the day which was the appointed day. (Enacted 1988)____________________________________________________________________________________________ Note: See notice on page PN1593 of Gazette Supplement No. 6 of 31 March 1988. The appointed day was in the event 5 April 1988. Cap 1142 s 4 Recognition of vesting of DB Asia's undertaking in Deutsche Bank On the appointed day that part of the undertaking of DB Asia which is governed by Hong Kong law or the transfer of which is governed by Hong Kong law or which is derived from the Hong Kong business of DB Asia shall be deemed for the purpose of Hong Kong law to be transferred to, and vest in, Deutsche Bank to the intent that Deutsche Bank shall succeed to such part of the undertaking of DB Asia as if in all respects Deutsche Bank were the same person in law as DB Asia. (Enacted 1988) Cap 1142 s 5 Trust property and wills (1) Any property deemed to be vested in Deutsche Bank by virtue of this Ordinance which immediately before the appointed day was held by DB Asia, whether alone or jointly with any other person, as trustee or custodian trustee of any trust deed, settlement, covenant, agreement or will (whether originally so appointed or not, and whether appointed under hand or seal, or by order of any court), or as executor of the will, or administrator of the estate, of a deceased person or as judicial trustee appointed by order of any court, or in any other fiduciary capacity, shall, on and from the appointed day, be held by Deutsche Bank alone or, as the case may be, jointly with such other person, in the same capacity upon the trusts, and with and subject to the powers, provisions and liabilities, applicable thereto respectively. (2) Any existing instrument or order of any court under or by virtue of which any property became vested in DB Asia in any such fiduciary capacity as is referred to in subsection (1) (including in the case of a will any grant of probate thereof), and any provision in such instrument or order, or any existing contract or arrangement, for the payment to, or retention by, DB Asia of remuneration for its services in any such fiduciary capacity, shall, on and from the appointed day, be construed and have effect, so far as the context permits, as if for any reference therein to DB Asia there were substituted a reference to Deutsche Bank. (3) No testamentary gift shall be adeemed by reason only of the operation of any of the provisions of this Ordinance. (Enacted 1988) Cap 1142 s 6 Supplementary provisions Without prejudice to the generality of the foregoing provisions but subject to any provision of this Ordinance to the contrary effect, the following provisions of this section shall have effect with respect to matters within Hong Kong or subject to the laws of Hong Kong- (a) Every contract to which DB Asia is a party (whether in writing or not) shall have effect on and from the appointed day as if- (i) Deutsche Bank had been a party thereto instead of DB Asia; (ii) for any reference (however worded and whether express or implied) to DB Asia there were substituted, as respects anything falling to be done on or after the appointed day, a reference to Deutsche Bank; (iii) any reference (however worded and whether express or implied) to the directors or to any director, officer or employee of DB Asia were, as respects anything falling to be done on or after the appointed day, a reference to the directors of Deutsche Bank or, as the case may require, to such director, officer or employee of Deutsche Bank as Deutsche Bank may appoint for that purpose or, in default of appointment, to the director, officer or employee of Deutsche Bank who corresponds as nearly as may be to the first-mentioned director, officer or employee.(b) Sub-paragraph (a)(ii) shall apply to any statutory provision, to any provision of any existing contract to which DB Asia was not a party and to any provision of any other existing document (not being a contract or a will) as they apply to a contract to which that paragraph applies: Provided that such sub-paragraph shall not apply to any existing authorization or exemption under any enactment regulating the carrying on of the business of DB Asia.(c) Any account between DB Asia and a customer shall, on the appointed day, become an account between Deutsche Bank and such customer subject to the same conditions and incidents as theretofore; and such account shall be deemed for all purposes to be a single continuing account: Provided that nothing in this Ordinance shall affect any right of Deutsche Bank or of the customer to vary the conditions or incidents subject to which any account is kept.(d) Any existing instruction, order, direction, mandate, power of attorney, authority, undertaking or consent given to DB Asia (whether in writing or not and whether or not in relation to an account shall have effect, on and from the appointed day, as if given to Deutsche Bank. (e) Any negotiable instrument or order for payment of money drawn on or given to, or accepted or endorsed by, DB Asia, or payable at any place of business of DB Asia, whether so drawn, given, accepted or endorsed before, on or after the appointed day, shall have the same effect on and from the appointed day, as if it had been drawn on, or given to, or accepted or endorsed by Deutsche Bank, or were payable at the same place of business of Deutsche Bank. (f) The custody of any document or record, goods or other thing held by DB Asia as bailee shall pass to Deutsche Bank on the appointed day, and the rights and obligations of DB Asia under any contract of bailment relating to any such document or record, goods or thing shall on that day become rights and obligations of Deutsche Bank. (g) (i) Any security held immediately before the appointed day by DB Asia, or by a nominee or agent of or trustee for DB Asia, as security for the payment or discharge of any liability shall, on and from the appointed day, be held by, or, as the case may require, by that nominee, agent or trustee for, Deutsche Bank, and be available to Deutsche Bank (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of that liability; (ii) in relation to any security vested in Deutsche Bank in accordance with the provisions of this Ordinance and any liabilities thereby secured, Deutsche Bank shall be entitled to the rights and priorities and be subject to the obligations and incidents to which DB Asia would have been entitled and subject if it had continued to hold the security; (iii) without prejudice to the generality of sub-paragraph (ii), in any case where any existing liability subsists between DB Asia and Deutsche Bank in respect of which DB Asia or Deutsche Bank, or a nominee or agent of or trustee for DB Asia or Deutsche Bank holds security, that liability shall, for the purpose of enforcing or realizing that security, be deemed to continue in effect notwithstanding the vesting in Deutsche Bank of the undertaking; (iv) any security referred to in sub-paragraph (i), (ii) or (iii) and which extends to future advances or liabilities shall, on and from the appointed day, be available to Deutsche Bank (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of future advances and future liabilities to the same extent and in the same manner in all respects as future advances by, or liabilities to, DB Asia or, as the case may be, Deutsche Bank were secured thereby immediately before that day.(h) Where by virtue of this Ordinance any right or liability of DB Asia is deemed to become a right or liability of Deutsche Bank, Deutsche Bank and all other persons shall, on and from the appointed day, have the same rights, powers and remedies (and in particular the same rights and powers as to taking or resisting legal proceedings or making or resisting applications to any authority) for ascertaining, perfecting or enforcing that right or liability as if it had at all times been a right or liability of Deutsche Bank; and any legal proceedings or application to any authority existing or pending immediately before the appointed day by or against DB Asia may be continued by or against Deutsche Bank. (i) Any judgment or award obtained by or against DB Asia and not fully satisfied before the appointed day shall on that day, to the extent to which it is enforceable by or against DB Asia, become enforceable by or against Deutsche Bank. (Enacted 1988) Cap 1142 s 7 Contracts of employment (1) Section 6(a) shall apply to a contract for the employment of any person by DB Asia; and employment with DB Asia and Deutsche Bank under any such contract shall be deemed for all purposes to be a single continuing employment. (2) No director or auditor of DB Asia shall by virtue only of this Ordinance become a director or, as the case may be, auditor of Deutsche Bank. (Enacted 1988) Cap 1142 s 8 Pensions (1) The trust deeds and rules constituting or relating to the fund scheme established in Hong Kong and known as the Deutsche Bank (Asia) Aktiengesellschaft Hong Kong Branch Local Staff Provident Fund Scheme shall, on and from the appointed day, be construed and have effect, so far as the context permits, as if for any reference therein to DB Asia there were substituted a reference to Deutsche Bank. (2) No officer or employee of DB Asia who becomes an officer or employee of Deutsche Bank by virtue of this Ordinance shall by virtue of this Ordinance be entitled to participate in any pension fund of Deutsche Bank, and no existing officer or employee of Deutsche Bank shall, by virtue of this Ordinance, be entitled to participate in any pension fund of DB Asia or the Deutsche Bank (Asia) Aktiengesellschaft Hong Kong Branch Local Staff Provident Fund Scheme. (Enacted 1988) Cap 1142 s 9 Evidence: books and documents (1) All books and other documents which would, before the appointed day, have been evidence in respect of any matter for or against DB Asia shall be admissible in evidence in respect of the same matter for or against Deutsche Bank. (2) In this section "documents" (文件) has the same meaning as in section 46 of the Evidence Ordinance (Cap 8). (Amended 2 of 1999 s. 6) (Enacted 1988) Cap 1142 s 10 Part III of Evidence Ordinance (1) On and from the appointed day Part III of the Evidence Ordinance (Cap 8) shall apply to the banker's records of DB Asia deemed to be vested in Deutsche Bank by virtue of this Ordinance, and to entries made in those records before the appointed day, as if such records were the records of Deutsche Bank. (2) For the purposes of section 20 of the Evidence Ordinance (Cap 8), banker's records which are deemed to have become the banker's records of Deutsche Bank by virtue of this Ordinance shall be deemed to have been the ordinary banker's records of Deutsche Bank at the time of the making of any entry therein which purports to have been made before the appointed day, and any such entry shall be deemed to have been made in the usual and ordinary course of business. (3) In this section "banker's records" (银行纪录) shall be construed in accordance with section 2 of the Evidence Ordinance (Cap 8). (Enacted 1988) Cap 1142 s 11 Evidence of vesting (1) The production of a Government Printer's copy of this Ordinance shall, for all purposes, be conclusive evidence of the vesting of any property and liabilities of DB Asia in Deutsche Bank in accordance with the provisions of this Ordinance. (2) Without prejudice to the generality of subsection (1)- (a) any document made or executed on or after the appointed day, whereby Deutsche Bank or DB Asia, whether alone or jointly with any other person, conveys or transfers, or purports to convey or transfer, to any person (whether for consideration or not), or applies to be registered as the holder or proprietor of, any property held by DB Asia immediately before the appointed day, whether alone or jointly with any other person, shall be sufficient evidence that the interest of DB Asia in that property is deemed to be vested in Deutsche Bank under this Ordinance; (b) where there is any other transaction or purported transaction by Deutsche Bank or DB Asia on or after the appointed day in connection with, or in relation to, any property or liabilities which are property or liabilities of DB Asia immediately before that day, it shall be deemed in favour of any other party to the transaction, or any person claiming through or under him, that Deutsche Bank has full power and authority for that transaction as if the property or liabilities were deemed to be vested in it under this Ordinance; (c) a joint certificate given by or on behalf of DB Asia and Deutsche Bank before the appointed day, or a certificate given by or on behalf of Deutsche Bank on or after the appointed day, that any property or liabilities specified in the certificate (which property or liabilities immediately before the appointed day are property or liabilities of DB Asia) is at the date so specified deemed to be vested in Deutsche Bank under this Ordinance, shall be conclusive evidence for all purposes of the fact so certified; (d) nothing in paragraphs (b) and (c) affects the liability of DB Asia and Deutsche Bank to the other of them in respect of anything done, or purporting to have been done, by either of them in connection with, or in relation to, any property or liabilities; (e) in this section "convey" (转易) includes mortgage, charge, lease, assent, vest by way of vesting declaration or vesting instrument, disclaim, release or otherwise assure. (Enacted 1988) Cap 1142 s 12 Interests in land The deemed vesting in Deutsche Bank of an interest in land by virtue of this Ordinance shall not- (a) (Repealed 16 of 2004 s. 16) (b) constitute an assignment, transfer, devolution, parting with possession, dealing with or other disposition of that interest for the purposes of any provision contained in any instrument concerning that interest; or (c) give rise to any forfeiture; or (d) invalidate or discharge any contract or security; or (e) operate so as to merge any leasehold interest in the reversion expectant on it. (Enacted 1988) Cap 1142 s 13 Saving for enactments concerning banking institutions Nothing in this Ordinance shall exempt Deutsche Bank or DB Asia or any other subsidiary of Deutsche Bank or DB Asia from the provisions of any enactment regulating the carrying on of the business of any of them. (Enacted 1988) Cap 1142 s 14 Saving for companies Nothing in this Ordinance shall prejudice the powers of Deutsche Bank to alter its memorandum and articles of association or to dispose of, or deal with, its property, security or liabilities or to carry on or discontinue any part of its business; and nothing in this Ordinance shall prejudice the powers of DB Asia to dispose of, or deal with, its property, security or liabilities before the appointed day. (Enacted 1988) Cap 1142 s 15 Saving Remarks: Adaptation amendments retroactively made - see 60 of 1999 s. 3 Nothing in this Ordinance shall affect or be deemed to affect the rights of the Central Authorities or the Government of the Hong Kong Special Administrative Region under the Basic Law and other laws, or the rights of any body politic or corporate or of any other persons except such as are mentioned in this Ordinance and those claiming by, from or under them. (Enacted 1988. Amended 60 of 1999 s. 3)
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