EXHIBIT 4.2
DATED 17th May 2001
-------------------
ORC Holdings, Ltd
and
ORC Employee Trustees Limited
_________________________________
TRUST DEED
Re. ORC INTERNATIONAL
EMPLOYEE SHARE OWNERSHIP PLAN
(with Rules attached)
_________________________________
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TRUST DEED
This deed is made on 17th May 2001
between
ORC Holdings, Ltd (company number 3226024)("the
Company")
and
ORC Employee Trustees Limited (company number
4211200) ("the Trustee").
1. PURPOSE
The purpose of this Deed is to establish a trust for the employee share
ownership plan known as ORC International Employee Share Ownership Plan
("the Plan") which satisfies Schedule 8 Finance Act 2000. The Trustee has
agreed to be the first trustee for the purposes of the Plan.
2. STATUS
The Plan consists of this Deed and the attached rules and Appendices. The
definitions in the rules apply to this Deed. The Company shall from time to
time determine which of parts A to C of the Rules shall have effect. Where
the Company determines that part B shall have effect it shall specify that
there is to be an Accumulation Period of up to 12 months, which shall apply
equally to all Qualifying Employees in the Plan.
3. DECLARATION OF TRUST
3.1 The Company and the Trustee have agreed that all the Shares and other
assets which are issued to or transferred to the Trustee are to be held on
the trusts declared by this Deed, and subject to the terms of the Rules.
When Shares or assets are transferred to the Trustee by the Company with
the intention of being held as part of the Plan they shall be held upon the
trusts and provisions of this Deed and the Rules.
3.2 The Trustee shall hold the Trust Fund upon the following trusts namely:
(a) as to Shares which have not been awarded to Participants ("Unawarded
Shares") upon trust during the Trust Period to allocate those Shares
in accordance with the terms of this Deed and the Rules,
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(b) as to Shares which have been awarded to a Participant ("Plan Shares")
upon trust for the benefit of that Participant on the terms and
conditions set out in the Rules,
(c) as to Partnership Share Money upon trust to purchase Shares for the
benefit of the contributing Qualifying Employee in accordance with the
Rules, and
(d) as to other assets ("Surplus Assets") upon trust to use them to
purchase further Shares to be held on the trusts declared in (a)
above, at such time during the Trust Period and on such terms as the
Trustee in its absolute discretion thinks fit.
3.3 The income of Unawarded Shares and Surplus Assets shall be accumulated by
the Trustees and added to, and held upon the trusts applying to, Surplus
Assets.
3.4 The income of Plan Shares and Partnership Share Money shall be dealt with
in accordance with the Rules.
3.5 The perpetuity period in respect of the trusts and powers declared by this
Deed and the Rules shall be the period of 80 years from the date of this
Deed.
4. NUMBER OF TRUSTEES
Unless a corporate Trustee is appointed, there shall always be at least 2
Trustees. Where there is no corporate Trustee, and the number of Trustees
falls below 2, the continuing Trustee has the power to act only to achieve
the appointment of a new Trustee.
5. INFORMATION
The Trustees shall be entitled to rely on information supplied by the
Company in respect of the eligibility of any person to become or remain a
Participant in the Plan.
6. RESIDENCE OF TRUSTEES
Every Trustee shall be resident in the United Kingdom. The Company shall
immediately remove any Trustee who ceases to be so resident and, if
necessary, appoint a replacement.
7. CHANGE OF TRUSTEES
The Company has the power to appoint or remove any Trustee for any reason.
The change of Trustee shall be effected by executing a deed. Any Trustee
may resign on one month's notice given in writing to the Company, provided
that there will be at least two Trustees or a corporate Trustee immediately
after the retirement.
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8. INVESTMENT AND DEALING WITH TRUST ASSETS
8.1 Save as otherwise provided for by the Plan the Trustees shall not sell or
otherwise dispose of Plan Shares.
8.2 The Trustees shall obey any directions given by a Participant in accordance
with the Rules in relation to his Plan Shares and any rights and income
relating to those Shares. In the absence of any such direction, or
provision by the Plan, the Trustees shall take no action.
8.3 The Company and Participating Companies shall, as soon as practicable after
deduction from Salary, pass the Partnership Share Money to the Trustees who
will put the money into a non-interest bearing account with:
(a) an institution authorised under the Banking Act 1987;
(b) a building society; or
(c) a relevant European institution,
until it is either used to acquire Partnership Shares on the Acquisition
Date, or, in accordance with the Plan, returned to the individual from
whose Salary the Partnership Share Money has been deducted.
8.4 The Trustees may either retain or sell Unawarded Shares at their absolute
discretion. The proceeds of any sale of Unawarded Shares shall form part
of Surplus Assets.
8.5 The Trustees shall have all the powers of investment of a beneficial owner
in relation to Surplus Assets.
8.6 The Trustees shall not be under any liability to the Participating
Companies or to current or former Qualifying Employees by reason of a
failure to diversify investments, which results from the retention of Plan
or Unawarded Shares.
8.7 The Trustees may delegate powers, duties or discretions to any persons and
on any terms. No delegation made under this clause shall divest the
Trustees of their responsibilities under this Deed or under the Schedule.
The Trustees may allow any Shares to be registered in the name of an
appointed nominee provided that such Shares shall be registered in a
designated account. Such registration shall not divest the Trustees of
their responsibilities under this Deed or the Schedule.
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The Trustees may at any time, and shall if the Company so directs, revoke
any delegation made under this clause or require any Plan assets held by
another person to be returned to the Trustees, or both.
9. LOANS TO TRUSTEES
The Trustees shall have the power to borrow money for the purpose of:
(a) acquiring Shares; and
(b) paying any other expenses properly incurred by the Trustees in
administering the Plan.
10. SHARES FROM QUALIFYING SHARE OWNERSHIP TRUSTS
Where Shares are transferred to the Trustees in accordance with paragraph
76 of the Schedule, they shall award such Shares only as Free and Matching
Shares, and in priority to other available Shares.
11. TRUSTEES' OBLIGATIONS UNDER THE PLAN
Notice of Award of Free and Matching Shares
11.1 As soon as practicable after Free and Matching Shares have been awarded to
a Participant, the Trustees shall give the Participant a notice stating:
(a) the number and description of those Shares;
(b) their Initial Market Value on the date of Award; and
(c) the Holding Period applicable to them.
Notice of Award of Partnership Shares
11.2 As soon as practicable after any Partnership Shares have been acquired for
a Participant, the Trustees shall give the Participant a notice stating:
(a) the number and description of those Shares;
(b) the amount of money applied by the Trustees in acquiring those
shares on behalf of the Participant; and
(c) the Market Value at the Acquisition Date.
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Notice of any foreign tax deducted before dividend paid
11.3 Where any foreign cash dividend is received in respect of Plan Shares held
on behalf of a Participant, the Trustees shall give the Participant notice
of the amount of any foreign tax deducted from the dividend before it was
paid.
Restrictions during the Holding Period
11.4 During the Holding Period the Trustees shall not dispose of any Free or
Matching Shares (whether by transfer to the employee or otherwise) except
as allowed by the following paragraphs of the Schedule, unless the
participant has at that time ceased to be in Relevant Employment:
(a) paragraph 32 (power of Trustees to accept general offers etc.);
(b) paragraph 72 (power of Trustees to raise funds to subscribe for
rights issue);
(c) paragraph 73 (meeting PAYE obligations); and
(d) paragraph 121(5) (termination of plan: early removal of shares with
participant's consent).
PAYE Liability etc.
11.5 The Trustees may dispose of a Participant's Shares or accept a sum from
the Participant in order to meet any PAYE liability in the circumstances
provided in paragraph 95 of the Schedule (PAYE: shares ceasing to be
subject to the plan).
Where the Trustees receive a sum of money which constitutes a Capital
Receipt in respect of which a Participant is chargeable to income tax
under Schedule E, the Trustees shall pay to the employer a sum equal to
that on which income tax is so payable.
The Trustees shall maintain the records necessary to enable them to carry
out their own PAYE obligations, and the PAYE obligations of the employer
company so far as they relate to the Plan.
Where the Participant becomes liable to income tax under Schedule E, Case
V of Schedule D, or Schedule F by reason of any event, the Trustees shall
inform the Participant of any facts which are relevant to determining that
liability.
Money's worth received by Trustees
11.6 The Trustees shall pay over to the Participant as soon as is practicable,
any money or money's worth received by them in respect of or by reference
to any shares, other than new shares within paragraph 115 of the Schedule
(company reconstructions).
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This is subject to:
(a) the Trustees obligations under paragraphs 95 and 96 of the Schedule
(PAYE: obligations to make payments to employer etc); and
(b) the Trustees' PAYE obligations.
General offers etc.
11.7 If any offer, compromise, arrangement or scheme is made which affects the
Free Shares or Matching Shares the Trustees shall notify Participants.
Each Participant may direct how the Trustees shall act in relation to that
Participant's Plan Shares. In the absence of any direction, the Trustees
shall take no action.
12. POWER OF TRUSTEES TO RAISE FUNDS TO SUBSCRIBE FOR A RIGHTS ISSUE
Only pursuant to a direction given by or on behalf of the Participant in
respect of their Plan Shares the Trustees may dispose of some of the
rights under a rights issue arising from those Shares to obtain enough
funds to exercise the remaining rights.
The rights referred to are the rights to buy additional shares or rights
in the same company.
13. POWER TO AGREE MARKET VALUE OF SHARES
Where the Market Value of Shares falls to be determined for the purposes
of the Schedule, the Trustees may agree with the Inland Revenue that it
shall be determined by reference to such date or dates, or to an average
of the values on a number of dates, as specified in the agreement.
14. PERSONAL INTEREST OF TRUSTEES
Trustees, and directors, officers or employees of a corporate Trustee,
shall not be liable to account for any benefit accruing to them by virtue
of their:
(a) participation in the Plan as a Qualifying Employee;
(b) ownership, in a beneficial or fiduciary capacity, of any shares or
other securities in any Participating Company;
(c) being a director or employee of any Participating Company, being a
creditor, or being in any other contractual relationship with any
such Company.
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15. TRUSTEES' MEETINGS
The Trustees shall hold meetings as often as is necessary for the
administration of the Plan. There shall be at least two Trustees present at
a meeting except where the sole Trustee is a corporate Trustee and the
Trustees shall give due notice to all the Trustees of such a meeting.
Decisions made at such a meeting by a majority of the Trustees present
shall be binding on all the Trustees. A written resolution signed by all
the Trustees shall have the same effect as a resolution passed at a
meeting.
16. SUBSIDIARY COMPANIES
Any Subsidiary may with the agreement of the Company become a party to this
Deed and the Plan by executing a Deed of Adherence in the form set out by
the Schedule to this Deed and thereby agreeing to be bound by the Deed and
Rules.
Any company which ceases to be a Subsidiary shall cease to be a
Participating Company.
17. EXPENSES OF PLAN
The Participating Companies shall meet the costs of the preparation and
administration of this Plan.
18. TRUSTEES' LIABILITY AND INDEMNITY
18.1 The Participating Companies shall jointly and severally indemnify each of
the Trustees (except a remunerated Trustee) against any expenses and
liabilities which are incurred through acting as a Trustee of the Plan and
which cannot be recovered from the Trust Fund. This does not apply to
expenses and liabilities which are incurred through fraud or wilful
wrongdoing or are covered by insurance under clause 18.3.
18.2 No Trustee except a remunerated Trustee shall be personally liable for any
breach of trust (other than through fraud or wilful wrongdoing) over and
above the extent to which the Trustee is indemnified by the Participating
Companies in accordance with clause 18.1 above.
18.3 A non-remunerated Trustee may insure the Plan against any loss caused by
him or any of his employees, officers, agents or delegates. A non-
remunerated Trustee may also insure himself and any of these persons
against liability for breach of trust not involving fraud or wilful
wrongdoing or negligence of the Trustee or the person concerned.
18.4 A Trustee who carries on a profession or business may charge for services
rendered on a basis agreed with the Company. A firm or company in which a
Trustee is interested or by which he is employed may also charge for
services rendered on this basis.
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19. COVENANT BY THE PARTICIPATING COMPANIES
The Participating Companies hereby jointly and severally covenant with the
Trustees that they shall pay to the Trustees all sums which they are
required to pay under the Rules and shall at all times comply with the
Rules.
20. ACCEPTANCE OF GIFTS
The Trustees may accept gifts of Shares and other assets which shall be
held upon the trusts declared by clause 3(1) or 3(4) as the case may be.
21. TRUSTEES' LIEN
The Trustees' lien over the Trust Fund in respect of liabilities incurred
by them in the performance of their duties (including the repayment of
borrowed money and tax liabilities) shall be enforceable subject to the
following restrictions:
(a) the Trustees shall not be entitled to resort to Partnership Share
Money for the satisfaction of any of their liabilities; and
(b) the Trustees shall not be entitled to resort to Plan Shares for the
satisfaction of their liabilities except to the extent that this is
permitted by the Plan.
22. AMENDMENTS TO THE PLAN
The Company may, with the Trustees' written consent, from time to time
amend the Plan provided that:
(a) no amendment which would adversely prejudice to a material extent the
rights attaching to any Plan Shares awarded to or acquired by
Participants may be made nor may any alteration be made giving to
Participating Companies a beneficial interest in Plan Shares, and
(b) if the Plan is approved by the Inland Revenue at the time of an
amendment or addition, any amendment or addition to a "key feature"
(as defined in paragraph 118(3)(a) of the Schedule) of the Plan shall
not have effect unless and until the written approval of the Inland
Revenue has been obtained in accordance with paragraph 4 of the
Schedule.
23. TERMINATION OF THE PLAN
23.1 The Plan shall terminate:
(a) in accordance with a Plan Termination Notice issued by the Company to
the Trustees under paragraph 120 of the Schedule, or
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(b) if earlier, on the expiry of the Trust Period.
23.2 The Company shall immediately upon executing a Plan Termination Notice
provide a copy of the notice to the Trustees, the Inland Revenue and each
individual who has Plan Shares or who has entered into a Partnership Share
Agreement which was in force immediately before the Plan Termination Notice
was issued.
23.3 Upon the issue of a Plan Termination Notice or upon the expiry of the Trust
Period paragraph 121 of the Schedule shall have effect.
23.4 Any Shares or other assets which remain undisposed of after the
requirements of paragraph 121 of the Schedule have been complied with shall
be held by the Trustees upon trust to pay or apply them to or for the
benefit of the Participating Companies as at the termination date in such
proportion, having regard to their respective contributions, as the
Trustees shall in their absolute discretion think appropriate.
IN WITNESS whereof the parties have duly executed and delivered this Deed the
day and year first before written.
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SCHEDULE
THIS DEED is made the [ ] 2001.
BETWEEN:
(1) ORC Holdings, Ltd (company number 3226024) ("the Company").
(2) ORC Employee Trustees Limited (company number 4211200) ("the Trustee")
which expression shall, where the context so admits, include its successors
as trustees of the trust).
(3) the several companies whose names are listed in the Schedule to this Deed
("the Adhering Companies").
RECITALS
(A) This Deed is supplemental to a Deed of [ ] 2001 made between
the Company and the Trustee ("the Principal Deed") whereby the Company
established the ORC International Employee Share Ownership Plan ("the
Plan").
(B) Each of the Adhering Companies is a Subsidiary of and under the control of
the Company within the meaning of the Plan.
(C) In pursuance of the power contained in Clause 16 of the Principal Deed, the
Company has agreed that subject to their entering into this Deed the
Adhering Companies may become Participating Companies within the meaning of
the Plan.
THIS DEED PROVIDES as follows:
1. The definitions set out in the Principal Deed shall apply throughout this
Deed.
2. The Company hereby agrees that the Adhering Companies shall be
Participating Companies for the purposes of the Plan provided that any of
the Adhering Companies shall be deemed not to be such a Participating
Company as from the date it ceases to be a subsidiary of the Company
(within the meaning of Section 144 of the Companies Act 1989) or under the
control of the Company (within the meaning of Section 840 of the Income and
Corporation Taxes Act 1988) or as from such other date as the Company may
by deed declare.
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3. Each of the Adhering Companies hereby covenants with the Company and with
the Trustee that subject to the proviso to Clause 2 above it will observe
and perform all covenants, conditions and provisions contained in the
Principal Deed applicable to Participating Companies.
IN WITNESS whereof the parties have duly executed and delivered this Deed the
day and year first before written.
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SCHEDULE
THE ADHERING COMPANIES
1. ORC International Limited (company number 1088226)
2. ORC European Information Centre Limited (company number 2673406)
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Executed as a deed by
ORC Holdings, Ltd
acting by:
Director
Director/Secretary
Executed as a deed by
ORC Employee Trustees Limited
acting by:
Director
Director/Secretary
Executed as a deed by
O.R.C. International Ltd.
acting by:
Director
Director/Secretary
Executed as a deed by
ORC European Information Centre Limited
acting by:
Director
Director/Secretary
___________________________________________________________________________
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Executed as a deed by
ORC Holdings, Ltd
acting by:
Director
/s/ Xxxxx Xxxxxxxx
Director
/s/ Xxxxxx Xxxxxxxx
Executed as a deed by
ORC Employee Trustees Limited
acting by:
Director
/s/ Xxxxx Xxxxxxxx
Director
/s/ Xxxxxx Xxxxxxxx
