An Act to Incorporate SBC Global Trust Corporation
WHEREAS C. Paul W. Smith, barrister and solicitor residing and practicing in the Province of New Brunswick, prays that it be enacted as hereinafter set forth;
THEREFORE, Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1This Act may be cited as SBC Global Trust Corporation Act.
2(1)In this Act, unless the context otherwise requires,
"Corporation" means SBC Global Trust Corporation incorporated under section 3;
"corporation" includes a company or other body corporate wherever or however incorporated;
"Director" means the Director as defined in the Business Corporations Act;
"emergency condition" includes, but is not limited to, any of the following circumstances:
(a)war or other armed conflict;
(b)revolution, rebellion, insurrection or coup d'état;
(c)invasion or occupation by foreign military forces;
(d)rioting or civil commotion of an extended nature; domination or control by a foreign power;
(e)expropriation, nationalization, confiscation, blocking, seizing, impounding, freezing or other taking control of a material part of the assets or property of or under the ownership or control of the Corporation, Swiss Bank Corporation, or the assets held in trust by the Corporation;
(f)impairment of the institution of or of the ability to freely possess, enjoy or alienate private property held anywhere in the world;
(g)the unlawful death of a head of state;
(h)any event, condition or situation that would or does give rise to any or the taking of any precautionary or emergency measures from time to time established by Swiss Bank Corporation under the auspices of the Decree of the Federal Council of the Swiss Confederation of April 12, 1957, July 4, 1958 and February 24, 1982, concerning the protection of juridic persons, partnership firms and singly owned firms by measures of conservation;
(i)the taking of any action under the laws of any state having jurisdiction over the property or internal affairs of the Corporation or any shareholder of the Corporation whereby actions taken by persons resident in New Brunswick or elsewhere in Canada or by the directors, officers, agents or attorneys of Swiss Bank Corporation or the Corporation or any person controlling, directly or indirectly Swiss Bank Corporation or the Corporation, or the interests of persons with whom the Corporation stands in a fiduciary capacity, might not be recognized; or
(j)the immediate or imminent threat of any of the aforegoing;
"Minister" means the Minister of Justice;
"Swiss Bank Corporation" means Swiss Bank Corporation, a corporation incorporated under the laws of Switzerland and having its head office in the City of Basle, Switzerland.
2(2)For the purposes of this Act,
(a)one corporation is affiliated with another corporation if one of them is the subsidiary of the other or both are subsidiaries of the same corporation or each of them is controlled by the same person; and
(b)if two corporations are affiliated with the same corporation at the same time, they shall be deemed to be affiliated with each other.
2(3)For the purposes of this Act, a corporation shall be deemed to be controlled by a person if shares of the corporation carrying voting rights sufficient to elect a majority of the directors of the corporation are held, directly or indirectly, other than by way of security only, by or on behalf of that person.
2(4)A corporation is a subsidiary of another corporation if
(a)it is controlled by that other corporation, or
(b)it is controlled by a corporation that is controlled by that other corporation.
3A body corporate is incorporated with the name SBC Global Trust Corporation.
4(1)Subject to this Act, the Corporation has the capacity of a natural person and subject to this Act the rights, power and privileges of a natural person.
4(2)Without limiting the generality of subsection 4(1), the Corporation has the power:
(a)to establish and declare trusts and to act in all ways as a trustee, fiduciary and mandatary and do all such things as a trustee, fiduciary or mandatary may do and in general act as administrator, executor, committee, assignee, liquidator, receiver, registrar, mandator, guardian, transfer agent, trustee, fiduciary, mandatory, protector, custodian trustee and curator in or in respect of any trust deed, deed, settlement, mortgage, agreement, indenture, conveyance, estate, will, codicil, probate, letters of administration, judgment, order or appointment or any document whatsoever or any trust howsoever created;
(b)to purchase or lease real estate, erect buildings, or make other improvements on land purchased or leased, pay off encumbrances, or take assignments thereof, and sell, lease, or encumber by mortgage or other security property acquired under the powers hereby granted;
(c)to purchase or acquire commercial, government, municipal or other debentures or securities, including common and preferred stocks, and to pledge or encumber the same as security for moneys borrowed;
(d)to take, hold, and accept by grant, assignment, bailment, escrow agreement, transfer, deed, will, devise, bequest, or otherwise and whether in its own name or in the name of its nominees, any shares, stocks, bonds, notes, debentures, claims and other property of any kind whatsoever upon any lawful trusts, and perform and execute them according to the terms and for the purposes declared, established or agreed upon and act as agent in the management of property of any kind, accept and receive transfers and conveyances of real or personal property or estate of any kind whatsoever and hold the same jointly with others or separately in trust or as agent or otherwise and whether for the purpose of securing to any person, company or corporation the payment of any sums of money or the performance of any obligations or for any other purpose whatsoever;
(e)to receive deposits of trust moneys, other moneys to be held in a fiduciary capacity, securities, and other personal property from any government, person or corporation and to take and receive money, specie, bullion, shares, stocks, bonds, debentures, debenture stock, notes, securities, papers, documents, deeds, wills and other evidences of title and indebtedness and generally all valuables and personal property of any kind whatsoever, with power to redeposit the same or any of the same with any bank or trust corporation or with any other depositary or subdepositary and on and subject to and in such terms and conditions as the Corporation may determine, authorize or approve and acquire, lease and hire vaults, safes and other receptacles in connection with the business of the Corporation;
(f)to accept and execute all trusts of every description and nature entrusted to it by any government, corporation or person, or committed or transferred to it by the order of a judge or by the order, judgment or decree of any court or governmental authority in Canada or elsewhere;
(g)to receive money and other property of whatsoever kind in trust, or for safekeeping, or as agent or nominee or otherwise and to deal with the same in accordance with the terms upon which the same has been received or in accordance with such other instructions as may be received from time to time from the persons to whom the Corporation may be accountable therefor;
(h)to advance moneys to protect or further the interests of any estate, trust or property entrusted to it, and charge lawful interest upon any such advances;
(i)to purchase, invest in or otherwise acquire, lease, hold, occupy, enjoy, manage, administer, mortgage, pledge, convey, exchange, sell or otherwise dispose of shares, stocks, promissory notes, bills of exchange, bonds, debentures, mortgages, rights, warrants, options and any other securities, lands, buildings, real estate or any other property, real or personal or both, moveable or immoveable, or any right or interest therein, deemed necessary or advisable in connection with the business of the Corporation or of persons with whom it may have business relations;
(j)to take, accept and execute the offices of executor, administrator, trustee, nominee, custodian, receiver, assignee, liquidator, sequestrator, attorney, official guardian, guardian, stock transfer agent, stock registrar, dividend disbursing agent, real estate agent, or act as agent for any of the foregoing and perform the duties of such offices or trusts as fully and completely as any person so appointed could do and receive, take, hold, administer and dispose of any property and estate, real or personal, which may be the subject of or connected with any of such offices or trusts, and to receive and manage any sinking fund on such terms as may be agreed upon;
(k)to act as investing and managing agent of estates and property of any kind for and on behalf of executors, administrators and trustees or other persons on such terms as may be agreed upon;
(l)to act as trustee under any mortgage, trust deed, hypothec, bond, debenture, or debenture stock, or as executor of or trustee under a last will and testament or administrator or attorney administrator with or without the will annexed of the estate of any deceased person or as administrator of any intestate or as trustee under any assignment for the benefit of creditors;
(m)to assume and execute any mandate and more particularly any mandate having for its object the issuing, countersigning or otherwise verifying and certifying to the genuineness, guaranteeing, pledging, transferring, selling or purchasing of shares, stocks, bonds, debentures, debenture stock, warrants, deposit receipts or other securities or evidences of indebtedness, or the buying, selling, leasing and managing of real and personal property and estate, or the administration, liquidation and dissolution of any company, corporation or partnership;
(n)to invest, advance, manage or otherwise deal with the moneys of the Corporation not immediately required in such manners as may be determined;
(o)to place restrictions upon the transfer and transmission of shares of the Corporation's capital stock, in the manner provided by the Business Corporations Act;
(p)to acquire any other similar business;
(q)to enter into any agreement for partnership, sharing profits, union of interest, co-operation, joint adventure, reciprocal concession or other arrangement of like nature with other persons or companies carrying on any similar business;
(r)to lend trust moneys or other moneys held in a fiduciary capacity, on the security of real estate, or other landed security, or personal property, including securities, of any nature, or without security, on such terms and at such rates of interest (if any) as may be agreed upon, but so that the Corporation shall not have power to carry on a banking business;
(s)to guarantee the performance of contracts or obligations by beneficiaries of trusts and others in a fiduciary relationship to the Corporation;
(t)to sell and dispose of the undertaking of the Corporation or any part thereof for such consideration as the Corporation may think fit;
(u)to pay out of the funds of the Corporation all costs, charges and expenses properly incurred in applying for and obtaining this Act of incorporation and all other expenses relating thereto;
(v)to enter into arrangements with any governmental authority;
(w)to establish and support or aid in the establishment and support of associations, institutions, funds, trust and conveniences calculated to benefit employees or ex-employees of the Corporation or its predecessors in business or the dependents or connections of such persons, grant pensions and allowances and make payments towards insurance, and subscribe or guarantee money for charitable or benevolent objects, or for any exhibition or for any public, general or useful object;
(x)to promote any corporation or corporations for the purpose of acquiring all or any of the property and liabilities of the Corporation, or for any other purpose which may seem directly or indirectly calculated to benefit the Corporation;
(y)to apply for, secure, acquire by assignment, transfer, purchase or otherwise, and to exercise, carry out and enjoy any patent, charter, licence, power, authority, franchise, concession, right or privilege, which any government or authority or any corporation or other public body may be empowered to grant, and to pay for, aid in, and contribute towards carrying the same into effect, and to appropriate any of the Corporation's shares, bonds, and assets to defray the necessary costs, charges and expenses thereof;
(z)to procure the Corporation to be registered and recognized in any place outside of the Province and to carry on business in any place outside of the Province in accordance with its powers herein and to designate persons therein, according to the laws of such place, to represent the Corporation, and to accept service for and on behalf of the Corporation of any process or suit;
(aa)to accept powers to effect its object or purposes outside the Province from any authority lawfully competent to confer such powers;
(bb)to appoint agents within and without the Province for the purposes of exercising the purposes and powers of the Corporation;
(cc)to distribute among the shareholders of the Corporation in kind, specie or otherwise, any property or assets of the Corporation including any proceeds of the sale or disposal of any property of the Corporation and in particular any shares, debentures, or other securities of or in any other company belonging to the Corporation or of which it may have a power to dispose, provided such distribution, apart from the provisions of this paragraph, would have been lawful if made in cash;
(dd)to manage investment portfolios and all assets moveable and immoveable and to provide advice on and supervision of financial transactions in the course of administering any trust or estate of which it is a trustee, or executor, or administrator; and
(ee)to do all things incidental or conducive to the attainment of the purposes and powers of the Corporation, either as a principal, agent, trustee, contractor or otherwise, and either alone or in conjunction with others.
4(3)Except where the context expressly so requires, none of the several paragraphs of subsection (2), or the purposes or powers therein set forth, shall be limited by or be deemed merely subsidiary or auxiliary to any other paragraph of subsection (2) or the purposes and powers in such other paragraph set forth.
4(4)All of the powers set forth in subsection (2) and the several paragraphs of subsection (2) may be exercised or given effect to by the Corporation in any jurisdiction or country in accordance with the laws of such jurisdiction or country and all references in the several paragraphs of subsection (2) to property or anything of a like nature are references to the same wherever situate.
5The Business Corporations Act applies to the Corporation except to the extent that the Business Corporations Act is inconsistent with this Act. No articles under the Business Corporations Act shall be adopted by the Corporation that would have the effect of amending this Act, unless expressly authorized by this Act. For the purposes of applying the Business Corporations Act, any reference therein to "Certificate of Incorporation" or "Articles of Incorporation" shall refer to this Act.
6The Corporation may, with the approval of the Minister, change its name in the manner prescribed by and subject to the provisions of the Business Corporations Act.
7The registered office of the Corporation shall be at the City of Saint John in the County of Saint John and Province of New Brunswick but the registered office of the Corporation may be changed to another place in New Brunswick in the manner prescribed by the Business Corporations Act.
8(1)Subject to amendments from time to time in accordance with the Business Corporations Act, such amendments being hereby authorized, there shall be a minium of one (1), and a maximum of fifteen (15), directors of the Corporation.
8(2)C. Paul W. Smith, barrister and solicitor, in the City of Saint John in the Province of New Brunswick is the incorporator and the sole first director of the Corporation. On the death (either before or after the Corporation comes into existence) or inability of the aforesaid incorporator and sole first director to act or to continue to act as the incorporator or the sole first director of the Corporation then Frederick D. Toole, barrister and solicitor, in the City of Saint John in the Province of New Brunswick is the incorporator or the sole first director or both as the case may be of the Corporation.
8(3)The organizational meetings of the Corporation may be held at the registered office of the Corporation at such time or at such other place and time as the first director shall determine and the quorum for such meetings shall be one.
9Meetings of the shareholders and meetings of the directors of the Corporation and of any committee of directors may be held at any place within or outside New Brunswick.
10(1)The directors of the Corporation may appoint from their number a managing director or one or more committees of directors and delegate to such managing director or committees any of the powers of the directors.
10(2)Notwithstanding subsection (1), no managing director and no committee of directors has authority to
(a)submit to the shareholders any question or matter requiring the approval of the shareholders;
(b)fill a vacancy among the directors, or if an auditor has been appointed, in the office of the auditor;
(c)issues securities except in the manner and on the terms authorized by the directors;
(e)purchase, redeem or otherwise acquire shares issued by the Corporation;
(f)pay a commission concerning the issue of the Corporation's shares;
(g)approve any financial statements of the Corporation required to be placed before the shareholders at an annual meeting; or
(h)adopt, amend or repeal by-laws.
10(3)The appointment of a managing director or committee of directors does not relieve the directors of the Corporation from any liability imposed by law.
11(1)Subject to amendments from time to time in accordance with the Business Corporations Act, such amendments being hereby authorized, the Corporation is authorized to issue an unlimited number of common shares without nominal or par value.
11(2)The Corporation shall not commence or continue transacting business unless it
(a)has issued fully paid shares for a cash consideration of at least $100,000 and maintains that amount on deposit in a depository in Canada whose deposit liabilities are insured by the Canada Deposit Insurance Corporation or otherwise approved by the Minister; or
(b)posts and maintains security acceptable to the Minister in the principal amount of at least $100,000.
11(3)Where for any reason security posted by the Corporation under paragraph (2)(b) ceases to be acceptable to the Minister, the Corporation shall post and maintain security which is acceptable to the Minister.
12(1)Except with the approval of the Minister, no sale or transfer of shares of the Corporation shall be made if the result of such sale or transfer would be that the Corporation ceases to be controlled directly or indirectly by Swiss Bank Corporation or any affiliate of Swiss Bank Corporation.
12(2)A sale or transfer of shares of the Corporation that would otherwise require the approval of the Minister as set forth in subsection (1) may be made without the approval of the Minister to a purchaser or transferee who has previously been approved by the Minister when there are reasonable grounds for believing that an emergency condition exists which affects or is likely to affect a material part of the assets of or under the direct or indirect control of the Corporation or Swiss Bank Corporation or any of their respective affiliates. A solemn declaration under the Evidence Act or the Canada Evidence Act of an officer of the Corporation or of another person having knowledge, whether actual or based on information and belief, that an emergency condition exists and that a sale or transfer of the shares of the Corporation has been made or is to be made, shall be filed with the Minister either before, at the time of or forthwith after the sale or transfer of shares to which it relates.
13Moneys, property and securities received or held by the Corporation upon trust or as agent shall not be liable for the debts or obligations of the Corporation other than those arising out of such trust or agency.
14(1)Subject to subsection (4), the Corporation may, if it is authorized by its shareholders by a special resolution, apply to the appropriate official or public body of another jurisdiction requesting that the Corporation be continued as if it had been incorporated under the laws of that other jurisdiction.
14(2)Upon receipt of notice satisfactory to him that the Corporation has been continued under the laws of another jurisdiction, the Director shall file the notice and issue a certificate of discontinuance.
14(3)This Act and the Business Corporations Act cease to apply to the Corporation on the date shown in the certificate of discontinuance, which shall be dated the date upon which the Corporation is continued under the laws of another jurisdiction and at such date every property of every nature and kind, both real and personal and tangible and intangible, and every estate, lease, charge, possibility, chose in action, or right that is granted to, or held by, or vested in the Corporation, whether by way of security or otherwise, in trust for or for the benefit of any other person or purpose, pursuant to or in respect of any document or trust and whether in the form in which it was originally acquired by the Corporation or otherwise, shall be and remain vested in the Corporation as it has been continued under the laws of another jurisdiction, according to the tenor of and at the time indicated or intended by the document or trust, upon the same trusts and with the same powers, rights, immunities, and privileges, and subject to the same obligations and duties as are thereby provided, granted or imposed.
14(4)The Corporation shall not apply under subsection (1) to be continued as a body corporate under the laws of another jurisdiction unless those laws provide in effect that
(a)the property of the Corporation continues to be the property of the body corporate;
(b)the body corporate continues to be liable for the obligations of the Corporation;
(c)an existing cause of action or claim arising under the laws of the New Brunswick or liability to prosecution in New Brunswick is unaffected;
(d)a civil, criminal or administrative action or proceeding pending by or against the Corporation in New Brunswick may be continued to be prosecuted by or against the body corporate; and
(e)a conviction against the Corporation in New Brunswick may be enforced against the body corporate or a ruling, order or judgment in New Brunswick in favour of or against the Corporation may be enforced by or against the body corporate.
15(1)In this section "an interested person" means:
(a)a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a share of the Corporation or Swiss Bank Corporation or any of their respective affiliates; or
(b)a director or an officer or a former director or officer of the Corporation or Swiss Bank Corporation or any of their respective affiliates.
15(2)Upon application by an interested person, if the Court of Queen's Bench of New Brunswick is satisfied that a governmental authority, whether it is legally constituted or not, in any jurisdiction outside Canada
(a)by or in connection with a nationalization, expropriation, confiscation, coercion, force or duress or similar action; or
(b)by or in connection with the imposition of any confiscatory tax, assessment or other governmental charge,
has taken or seized any shares or other interest in the Corporation, it may make an order as provided in subsection (3).
15(3)In connection with an application under this section, the Court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing
(a)that the Corporation disregard the taking or seizure and continue to treat the person who would have held shares or any other interest in the Corporation, but for the taking or seizure of the shares or other interest, as continuing to hold the shares or other interest;
(b)that the Corporation treat the persons believed by the Corporation to have held the direct or indirect beneficial interests in the shares or other interests in the Corporation as the holder of those shares or other interests;
(c)that any shares of or other interests in the Corporation vest in such trustees as the Court may appoint upon such trusts and for such purposes as the Court may determine; and
(d)for such additional relief as the Court considers just and equitable.
16(1)The directors of the Corporation may from time to time, without authorization of the shareholders
(a)borrow money upon the credit of the Corporation;
(b)issue, reissue, sell or pledge debt obligations of the Corporation;
(c)give a guarantee on behalf of the Corporation to secure performance of an obligation of any person; and
(d)mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the Corporation, owned or subsequently acquired, to secure any obligation of the Corporation.
16(2)The directors may by resolution delegate any or all of the powers referred to in subsection (1) to a director, a committee of the directors or an officer of the Corporation.
16(3)Nothing in this Act limits or restricts the borrowing of money by the Corporation on bills of exchange or promissory notes, made, drawn, accepted or endorsed by or on behalf of the Corporation.
17(1)The Corporation shall not receive deposits from or lend money to the public, either within or without the Province.
17(2)The prohibition against receiving deposits from or lending money to the public as set forth in subsection (1) shall not prevent the Corporation from receiving or lending money in the course of carrying out the terms, or furthering the interests, of any trust of which it is trustee or of any trust deed, settlement, mortgage, agreement, indenture, conveyance, estate, will, codicil, probate, letters of administration, judgment, order or appointment or any document whatsoever under which it is administrator, executor, committee, assignee, liquidator, receiver, registrar, mandator, guardian, transfer agent, protector, custodian trustee or curator.
17(3)The Corporation shall not carry on the business of an insurance company.
17(4)The Corporation may, in fulfilling any specific direction or permission of a court or of an instrument appointing the Corporation as trustee or fiduciary, purchase, hold or sell shares in itself or its holding body corporate provided however that a general power to invest shall not be considered to be specific direction or permission for the purposes of this subsection.
18(1)The Corporation shall not
(a)accept an appointment to act as trustee under a trust, the intended settlor of which is at the time of such proposed appointment a resident of Canada; or
(b)transact a trust business, act in a fiduciary capacity or administer trusts in the Province or elsewhere in Canada
unless the Corporation is authorized to do so by the Minister but subject, nevertheless, to such conditions as may be prescribed from time to time by the Minister.
18(2)No trust is invalid by reason only of a contravention by the Corporation of subsection (1).
18(3)The prohibition against transacting a trust business, acting in a fiduciary capacity or administering trusts in New Brunswick or elsewhere in Canada as set forth in paragraph (1)(b) shall not prevent the Corporation from administering in the Province trusts as a trustee or in another fiduciary capacity with or for persons who were not residents of Canada at the date of the appointment of the Corporation as trustee or fiduciary when there are reasonable grounds for believing that an emergency condition exists. A statutory declaration under the Evidence Act or the Canada Evidence Act of an officer of the Corporation or of another person having knowledge, whether actual or based on information and belief, that an emergency condition exists, shall forthwith be filed with the Minister.
18(4)Following the filing with the Minister of the statutory declaration provided for in subsection (3), the Minister may prescribe conditions from time to time for the continuing administration of the trusts mentioned in such subsection.
19Schedule A to the Loan and Trust Companies Act, chapter L-11.2 of the Acts of New Brunswick, 1987, is amended by adding after
Saffery Champness Trust Corporation, as continued under the laws of the Province of New Brunswick by An Act to Continue Griffin Trustees Limited
SBC Global Trust Corporation, as incorporated by An Act to Incorporate SBC Global Trust Corporation