Claim No: CFI 019/2009
THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE
IN THE COURT OF FIRST INSTANCE
MORGAN STANLEY & CO INTERNATIONAL PLC |
and MORGAN STANLEY PRIVATE WEALTH MANAGEMENT LIMITED |
Claimants |
ORDER
UPON THE APPLICATION of the above named Morgan Stanley & Co International plc ("Morgan Stanley DIFC" and or the "Transferor") whose registered office in the Dubai International Financial Centre ("DIFC") is located at Level 5, West Wing, The Gate, PO Box 506501, Dubai and Morgan Stanley Private Wealth Management Limited ("NewCo DIFC" or the "Transferee") whose registered office in the DIFC is located at Level 5, West Wing, The Gate, PO Box 506501, Dubai (together the "Claimants") as named in the Claim Form issued on 27 August 2009 in the above matters seeking, inter alia, the sanction by the Court to a financial business transfer (the "Business Transfer" or the "PWM Business Transfer") pursuant to Part 9 of the DIFC Regulatory Law No.1 of 2004, as amended (the "Regulatory Law").
UPON HEARING Counsel for the Transferor and Transferee in Chambers
AND UPON READING the said Claim Form, including the Witness Statement of Georges Makhoul of Morgan Stanley DIFC and the exhibits thereto.
AND IT FURTHER APPEARING THAT the requirements of Article 111 (3), (5) and (7) of the Regulatory Law have been complied with and the Court being satisfied that the Transferee has complied with the conditions in Article 112 of the Regulatory Law.
THIS COURT HEREBY sanctions the PWM Business Transfer as further detailed in the Witness Statement as set out in the Schedule hereto
AND IT IS ORDERED pursuant to Sections 110(1) and 108(3) of the Regulatory Law:
1. The DIFC PWM Business and all its property and liabilities shall be transferred to the Transferee;
2. By this Order, the Transferee shall acquire the DIFC PWM Business from the Transferor, such that:
2.1 by this Order and without further act or instrument be transferred to, and legal and beneficial title in respect of the DIFC PWM Business shall vest in, the Transferee, subject to all liens affecting such DIFC PWM Business.
2.2 In the event of any payment being made to or right or benefit being conferred upon or accruing to the Transferor in respect of any of the assets after, as appropriate, the date of this Order or any subsequent transfer date therefor, the Transferor shall hold such sums on trust and shall, as soon as is reasonably practicable after its receipt pay over the amount of such payment or transfer or assign such right or benefit to or in accordance with the directions of the Transferee.
2.3 the Transferor and the Transferee shall each take all such reasonable steps and do all such reasonable things (including the execution and delivery of any documents) as may be necessary or desirable to give effect to this Order including without limitation to effect the transfer to the Transferee of the DIFC PWM Business (including the assets and the liabilities) in accordance with this paragraph 2, save to the extent that the Transferee notifies the Transferor that it shall not require such steps to be taken.
3. On and with effect by this Order (or a subsequent transfer date, as the case may be) in respect of each relevant contract which is DIFC PWM Business property (the "Relevant Contract"):
3.1 each of the Transferee and the relevant person who is either (i) the contractual counterparty (a "Counterparty") or (ii) has third party rights or other rights (each, a "Third Party") in respect of a Relevant Contract shall become entitled to the same rights under or pursuant to such contract as were available to, or against, each of the Transferor, the Counterparty or any Third Party, immediately prior to this Order (or a subsequent transfer date, as the case may be), and accordingly such rights that were available to, or against, each of the Counterparty and any Third Party as against the Transferor prior to the date of this Order (or any subsequent transfer date as applicable), shall no longer be available and shall have been transferred to the Transferee;
3.2 each reference in such contract to an account of the Transferor with another person, or to an account of another person with the Transferor, whether it is a trust account, an account subject to a security interest or for any other purposes, shall be read as being or including a reference to an account of the Transferee with such other Person, or of such other Person with the Transferee, which is subject to the same conditions and incidents as applied thereto immediately prior to this Order and such account (including the account number, if applicable) shall be deemed for all purposes to be a single continuing account, provided that nothing herein shall affect any right of any person to such contract pursuant to its terms to vary the conditions or incidents subject to which any such account is kept;
3.3 This Clause 3 shall be without prejudice to the general application of the provisions of this Order to the transferred assets that are not contracts.
4. If on or after the date of this Order (or a subsequent transfer date, as the case may be) there are judicial, quasi-judicial, administrative or arbitration proceedings (whether implemented, pending, threatened or otherwise) by or against the Transferor in connection with the DIFC PWM Business, the transferred property or the transferred liabilities as applicable, the same shall be continued by or against the Transferee and the Transferee shall be entitled to all defences, counterclaims and rights of set-off that would have been available to the Transferor in relation to the DIFC PWM Business, the transferred property and the transferred liabilities.
5. All books and other documents that would, before this Order, have been evidence in respect of any matter for or against the Transferor at the transfer date, shall be admissible in evidence in respect of the same matter for or against the Transferee after the Transfer Date.
6. In this paragraph, terms shall be construed in accordance with the definitions in the DIFC Data Protection Law No.1 of 2007 (the "Data Protection Law"). Pursuant to Article 9(e) of the Data Protection Law and with effect from the date of this Order or subsequent transfer date, as applicable:
6.1 in respect of all personal data comprised in the DIFC PWM Business in respect of which the Transferor was the data controller immediately before the Transfer Date or Subsequent Transfer Date, as applicable (the "Transferred Personal Data"), the Transferee shall become the data controller;
6.2 any information made available to, or consent obtained or request or other notice received from, any data subject by or on behalf of the Transferor in respect of the Transferred Personal Data will be deemed to have been made available, obtained or received by the Transferee; and
6.3 any reference to the Transferor in any such information, consent, request or other notice will be deemed to include a reference to the Transferee.
AND IT IS FURTHER ORDERED
(1) that there shall be liberty for the Transferor and Transferee to apply:
(a) for such further Orders as may be expedient or necessary for the purposes set out in Section 110 of the Regulatory Law; and
(b) generally.
Mark Beer
Registrar
Date of Issue: 31 August 2009
At: 12.15pm
