Bank of British Columbia Business Continuation Act — B-1.7 9
Where resolution carried 9 (1) If, at the meeting of the shareholders, the resolution referred to in subsection 8(3) is carried by a majority of the votes cast by the shareholders present in person or represented by proxy at the meeting, the trust amount shall forthwith be released to the Bank. Where resolution not carried (2) If the resolution is not carried as described in subsection (1), the Governor in Council shall, as soon as practicable after the meeting of the shareholders, appoint an assessor. Assessor’s duties * (3) As soon as practicable after his appointment, the assessor shall determine (a) as of the day immediately before this Act comes into force, the net realizable value, if any, of the assets less the obligations of the Bank, hereinafter in this section referred to as the “net value”; and (b) any net realizable value of the assets and obligations retained by the Bank under the sale agreement, hereinafter in this section referred to as the “net retained value”. * [Note: Act in force on assent November 27, 1986.] Determination factors (4) In making the determination under subsection (3), the assessor shall take account of all such facts as the assessor deems relevant relating to the circumstances of the Bank including, without limiting the generality of the foregoing, the likelihood, in the absence of the sale agreement, (a) of profitability and continuing viability of the Bank as an independent bank; (b) of sale of the assets of the Bank other than to the purchasing bank; and (c) of the appointment of a curator or the winding up of the business of the Bank. Report of assessor (5) As soon as practicable after making a determination under this section, the assessor shall make a report to the Governor in Council, the Bank and the Corporation setting out therein the amount, if any, of the net value and the net retained value so determined. Determination, etc., is final (6) The determination and report of the assessor are for all purposes final and conclusive and shall not be questioned or reviewed in any court. Powers of assessor (7) For the purposes of making a determination under this section, the assessor has and may exercise all the powers of a person appointed as a commissioner under Part I of the Inquiries Act . Effect of determination (8) Where the assessor determines that the net value is an amount equal to or greater than the aggregate of the trust amount plus the net retained value, (a) the trust amount shall forthwith be released to the Bank; and (b) to the extent that it is greater than that aggregate, the Corporation shall forthwith pay to the Bank the difference between the greater amount and that aggregate. Idem (9) Where the assessor determines that the net value is an amount less than the aggregate of the trust amount plus the net retained value, there shall forthwith be released (a) to the Bank such portion of the trust amount as was determined to be the net value less the net retained value; and (b) to the Corporation the remainder of the trust amount. Release conditions (10) Notwithstanding subsections (8) and (9), the trust amount or any portion thereof that is to be released to the Bank under this section shall be released subject to the provisions of the sale agreement including any rights, remedies and protections provided in the agreement in favour of the purchasing bank.