TNAG-1769-FCO40-2523-Hong-Kong-mergers-involving-banks-and-other-financial-instit-1988 — Page 196

CLIFFORD CHANCE

THE MERGED FIRM OF COWARD CHANGE AND CLIFFORO-TURMER

MEMORANDUM

Deutsche Bank (Merger) Bill 1988

P.024

1. EFFECT IN HONG KONG LAN OF THE MERGER UNDER GERMAN LAW

Although there is House of Lords authority (National Bank of Greece and Athens S. A. v Matliss (1958) A.C. 509) supporting the view that English law would recognise a merger effected under foreign law between two foreign corporations, the scope of that authority has never been tested and in any event the result is net so obvious as to preclude arguments or disputes from persons effected by the merger, Further the case Was decided on the Greek law concept of universal succession which we understand differs from that in German law.

1.1 AREAS OF DIFFICULTY

The major areas of difficulty would be the following:-

(a) the transfer of liabilities on deposits (in particular on certificates of deposit), accounts, instructions and mandates from customers from whom it is impractical to obtain express agreement (the same concern applies to other liabilities such as letters of credit, etc.).

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OF assets where it is difficult to obtain the express consent of the lessor.

(c) agreements, leases, etc. in respect of which the merger would

trigger an event of default or forfeitura.

(d) trusteeships, agency functions, etc. where it is unclear what

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(e) loans to CUSTOMATE from wham it

1.2

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impractical to obtaia express consent, especially where security is involved which might be prejudiced or be difficult to enforce if reliance is solely placed on the effectiveness of the merger (for example questions may arise 23 to whether the merger releases guarantees given to DB Asia).

LLOYDS BANK (MERGER) ORDINANCE 1985

These areas of difficulty are addressed in detail in the Lloyds Bank (Merger) Ordinance 1985, notably in sections 5, 6, 7 and 8.

The Bill follows closely the structure of the Lloyds Ordinance and indeed adopts identical wording in almost all of its clauses. Those areas where it departs from the Lloyds wording reflect either the difference between the nature or procedure of the German law merger and those of the English law merger that

undertaken by Lloyds Bank and

and LBI, or our view that the current draft adopts improved wording to meet the same ead.

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