Dated 23rd December 1997
ALLSPORT PHOTOGRAPHIC PLC
- and -
INTERCEDE 1285 LIMITED (which has resolved to change its name to
ALLSPORT PHOTOGRAPHIC SHARE SCHEME
TRUSTEES LIMITED)
______________________________________________
TRUST DEED
of the
ALLSPORT PHOTOGRAPHIC
EMPLOYEE SHARE TRUST
______________________________________________
Xxxxxxx XxXxxxx
Mitre House, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Telephone: 0000 000 0000 Fax: 0000 000 0000
CDE Box 724
Doc Ref 50181496.01
Drafted: 19 December 1997
TABLE OF CONTENTS
Xxxxxx Xxxx
------ ----
1. Definitions...............................................................2
2. Sections 31 and 32 of the Trustee Act 1925 and Apportionment Rules........4
3. Trust for Sale............................................................5
4. Additions to the Trust Fund...............................................5
5. Dispositive Powers of Appointment Over the Trust Fund.....................6
6. Dispositive Powers Over Income............................................7
7. Trusts in Default of Appointment..........................................8
8. Administrative Powers.....................................................8
9. Trustees' Powers Generally................................................9
10. Protection of the Trustees...............................................10
11. Remuneration Etc. of the Trustees........................................11
12. Beneficiary Who is Trustee Director or Employee..........................12
13. Limitation on Rights of Beneficiaries....................................12
14. Retirement and Appointment of Trustees...................................13
15. Trustees Can Act by Majority.............................................14
16. Proper Law, Forum and Place of Administration............................14
17. Release of Trustees' Powers..............................................15
18. Power of Amendment.......................................................15
19. Restrictions.............................................................15
20. Irrevocability...........................................................16
21. Name of Settlement.......................................................16
22. Stamp Duty Certificate...................................................16
THIS DEED of TRUST is made the 23rd day of December 1997
BETWEEN
(1) ALLSPORT PHOTOGRAPHIC PLC whose registered office is situated at 00
Xxxxxxx Xxxxx Xxxxxx XX0X 0XX (the "Company"); and
(2) INTERCEDE 1285 LIMITED (which has resolved to change its name to
ALLSPORT PHOTOGRAPHIC SHARE SCHEME TRUSTEES LIMITED) whose registered
office is situated at 00 Xxxxxxx Xxxxx xxxxxxxxx (the "Trustees" which
expression shall where the context so permits include the trustee or
trustees for the time being hereof).
WHEREAS:
(A) The Company is incorporated in England and Wales with limited liability
under the Companies Act 1985 under registration number 1215846.
(B) The Company has established or intends to establish certain employees'
share schemes (within the meaning of Section 743 of the Companies Act
1985) for encouraging or facilitating the holding of shares in the
capital of the Company (as hereinafter defined) by or for the benefit
of bona fide employees or former employees of the Company and the
Subsidiaries.
(C) The Company and the Subsidiaries wish to establish for the purposes of
the holding and distribution of Shares an employee share trust the
terms of which are such that Section 86 of the Inheritance Tax Act 1984
shall apply to the property comprised in the Trust Fund.
(D) The terms of the said employee share trust (which are contained in this
Deed) have been approved by resolution of the Company dated 23rd
December 1997 and by resolution of the Board of Directors dated 23rd
December 1997.
(E) The Company has paid or will pay by way of gift to the Trustees the sum
of (pound)100 and it is anticipated that further monies may hereafter
be provided to the Trustees by way of gift or otherwise by the Company
and the Subsidiaries to be held by the Trustees on the terms hereof.
(F) It is intended that this Settlement shall be irrevocable.
1
NOW THIS DEED IRREVOCABLY WITNESSES as follows:
1. Definitions
1.1 In this Deed the following expressions shall where the context permits
have the following meanings respectively:
"Beneficiaries" the bona fide Employees and Former Employees
from time to time of Allsport Photographic
plc or any Subsidiary of Allsport
Photographic plc;
"Charity" any trust foundation company or other body
(corporate or unincorporate) for the time
being in existence and established for
purposes recognised as charitable by the
law of England and Wales;
"Company" the Company or any other company which
succeeds the Company as a result of a
takeover, reorganisation or resulting form
an amalgamation of the Company or
reconstruction of the Company and if there
be more than one such company the company to
which the greater portion of the undertaking
of the Company passes as a result of the
said takeover, reorganisation, amalgamation
or reconstruction and this definition shall
apply mutatis mutandis to any takeover,
reorganisation, amalgamation or
reconstruction of the Company for the time
being;
"Consolidated Profit" the consolidated profit before tax of the
Company and its Subsidiaries excluding any
extraordinary or exceptional items of
profit and loss and before charging or
providing for contributions to the Trust
Fund for corporation tax on profits;
"this Deed" this Deed of Settlement and the Schedule
hereto;
"Directors" the Board of Directors of the Company;
"Employee" any person employed by Allsport Photographic
Plc or any Subsidiary of Allsport
Photographic Plc and "Former Employee" shall
be construed accordingly;
"Employee Share Trust" the Allsport Photographic Employee Share
Trust constituted by this Deed;
2
"Financial Year" the period in respect of which a profit
and loss account of the Company laid
before the Company's shareholders in general
meeting is made up whether that period is a
year or not;
"Group Company" the Company, any holding company of the
Company, any Subsidiary of the Company and
any subsidiary of the Company's holding
company;
"Shares" fully-paid ordinary shares of (pound)1 in
the capital of the Company or such other
shares as may be appropriate for the
purposes of the Share Schemes as may from
time to time represent the same as the
result of any takeover, reconstruction,
amalgamation or other event affecting the
Company and its shares;
"Share Schemes" the employees' share schemes (within the
meaning of Section 743 of the Companies
Act 1985) which have been or will be
established and operated by the Company
(as altered by the Company from time to
time);
"Subsidiary" any subsidiary which falls within the
definition in Section 736 of the Companies
Act 1985;
"Trust Corporation" has the meaning assigned to that expression
of Section 68 of the Trustee Act 1925;
"The Trust Fund" means subject to clause 19.2 the said sum of
(pound)100 and all property at any time
added thereto by way of further settlement
accumulation capital accretion or otherwise
by the Company, any Subsidiary or any other
person and all property from time to time
representing the same held by the Trustees
upon the trusts and subject to the powers
and provisions hereof;
"Trust Period" the period of 80 years beginning with the
date hereof (which period shall be the
perpetuity period applicable hereto) or
such shorter period commencing on the date
hereof and ending on such date as the
Trustees may by deed determine not being a
date earlier than the date of execution of
any such deed or later than a date
previously so determined.
3
1.2 In this Deed:
1.2.1 references to any statutory provision shall include a
reference to such provision as the same may from time to time
be modified, amended, consolidated or reenacted;
1.2.2 references to any deed agreement document or instrument
(including this Deed) shall be construed as a reference to
such deed agreement document or instrument as from time to
time amended, supplemented or varied;
1.2.3 unless the context does not otherwise permit the singular
shall include the plural and vice versa and words denoting any
gender (including the neuter) shall include all genders; and
1.2.4 the headings are included for ease of reference only and shall
not affect the interpretation of the provisions in this Deed.
2. Sections 31 and 32 of the Trustee Act 1925 and Apportionment Rules
Sections 31 and 32 of the Trustee Act 1925 shall apply to this
Settlement (subject to the trusts powers and provisions herein
contained) with the following variations namely:
2.1 Section 31 shall have effect as if:
2.1.1 the words "the trustees may in their absolute discretion think
fit" were substituted in subsection (1)(i) thereof for the
words "may in all the circumstances be reasonable;" and
2.1.2 the proviso at the end of subsection (1) thereof were omitted.
2.2 Section 32 shall have effect as if:
2.2.1 the words "one half of" were omitted from proviso (a) to
subsection (1) thereof; and
2.2.2 the whole of proviso (c) were omitted from subsection (1)
thereof.
2.3 the statutory and equitable rules of apportionment shall not apply to
this Settlement and the Trustees may treat all dividends and other
payments in the nature of income received by them as income at the date
of receipt irrespective of the period for which the dividend or other
income is payable and (without prejudice to the generality of the
foregoing) accordingly:
4
2.3.1 references herein to the income of the Trust Fund shall
(without any allocation or apportionment in favour of the
Company or any Subsidiary or any other person who has
transferred property to the Trustees) not extend to any income
now accrued or accruing but not yet actually payable in
respect of any property so transferred; and
2.3.2 where under the trusts for the time being affecting the same
there is a change in the person or persons beneficially or
prospectively beneficially entitled to the income of any
part of the Trust Fund (whether due to the birth or death of
any person or for any other reason whatsoever) the
provisions of the Apportionment Act 1870 shall not apply and
no apportionment shall be made of income accruing or accrued
or of outgoings being expended on the occasion of such
change in beneficial entitlement but rather the same shall
be treated as having accrued to or become a proper liability
on the day of actual receipt or expenditure (as the case may
be).
3. Trust for Sale
The Trustees shall during the Trust Period hold the Trust Fund upon trust as to
investments or property other than money in their absolute discretion to sell,
call in and convert the same into money with power in their absolute discretion
to postpone such sale, calling in and conversion and to permit the same to
remain as invested and upon trust as to money with the like discretion to invest
the same in their names or under their control in any of the investments
authorised hereby or by law with the like discretion from time to time to vary
or transpose any such investments for others so authorised.
4. Additions to the Trust Fund
4.1 The Trustees may as they shall in their absolute discretion think fit
at any time accept any money investments or other property (including
property of an onerous nature the acceptance of which the Trustees
consider to be beneficial) offered to them whether by the Company, any
Subsidiary or any person to be held by the Trustees as an addition to
the Trust Fund to be held by the Trustees on the trusts and subject to
the powers and provisions hereof.
4.2 The Trustees shall divide the Trust Fund into sub-funds so that all
assets or sums contributed by any one Group Company and all income (if
any) or other assets derived therefrom shall be allocated to a single
sub-fund comprising only assets representing the contributions made by
that same Group Company and the Beneficiaries of which for so long as
such company is in existence shall be confined to the employees and
former employees of such Group Company unless the Trustees and the
relevant Group Company otherwise agree.
5
5. Dispositive Powers of Appointment Over the Trust Fund
5.1 The Trustees shall stand possessed of the Trust Fund and the income
thereof on such trusts and in such shares and proportions and with and
subject to such charges, powers and provisions for maintenance
education advancement or otherwise in favour or for the benefit of all
or any one or more exclusively of the others or other of the
Beneficiaries as the Trustees may during the Trust Period in their
absolute discretion by deed or deeds revocable by the Trustees or
irrevocable appoint before the end of the Trust Period (regard being
had to the law relating to remoteness) but so that any revocable
appointment not revoked before the end of the Trust Period shall
become irrevocable at the end of the Trust Period and (without
prejudice to the generality of the foregoing) in any such deed or
deeds the Trustees may create protective or discretionary trusts or
powers or trusts or powers for the accumulation of income operative or
exercisable at the discretion of any one or more persons or
corporations in any part of the world, Provided Always that no
appointment made under this sub-clause 5.1 shall invalidate any prior
payment or application of the Trust Fund or the income thereof made
under any other power or powers conferred by this Settlement or by law
or made pursuant to any previous appointment made under sub-clause,
Provided Always that any such loan shall be repayable no later than
the end of the Trust Period.
5.2 The Trustees shall have power or appoint or apply capital monies to
grant options upon such terms as the Trustees shall think fit over
Shares at the expense of the Trust Fund to any one or more of the
Beneficiaries whom it is thereby sought to benefit if the grant of such
options would in the opinion of the Trustees be advantageous to such
one or more Beneficiaries whether or not pursuant to the rules of any
share scheme established by the Company, including, without prejudice
to the generality of the foregoing the Allsport Photographic plc
Unapproved Share Option Scheme, Provided Always that no such option
shall be exercisable after the end of the Trust Period.
5.3 The Trustees shall have power to enter into any agreement or contract
with the Company or any Subsidiary on such terms and subject to such
conditions as the Trustees shall in their absolute discretion think fit
to enable the Beneficiaries or any of them to acquire and take up
Shares or options over Shares and (without prejudice to the generality
of the above) pursuant to or in furtherance of such agreement:
5.3.1 to purchase Shares to be acquired by the Beneficiaries whether
pursuant to the terms of any such option or options or
otherwise;
5.3.2 to borrow money from the Company, any Subsidiary or any other
person on such terms as the Trustees shall in their absolute
discretion think fit, Provided Always that in relation to any
borrowing from the Company or any Subsidiary such borrowing
shall be on such terms as would be no less favourable to the
Trustees than between parties dealing at arm's length;
6
5.3.3 to transfer Shares pursuant to the exercise of options granted
to Beneficiaries by the Company.
5.4 The Trustees shall have power during the Trust Period to pay or
transfer to or apply for the benefit of any one or more of the
Beneficiaries the whole or such part or parts of the Trust Fund at such
time or times as in their absolute discretion they think fit.
5.5 The Trustees shall have power during the Trust Period:
5.5.1 to lend with or without security any part or parts of the
Trust Fund to any Beneficiary upon such conditions as to
interest (if any) and repayment thereof and for such period
and generally upon such terms as the Trustees in their
absolute discretion think fit;
5.5.2 to apply as they in their absolute discretion think fit and on
such terms as they deem to be appropriate the Trust Fund or
any part or parts thereof in securing the payment of money
owed by any Beneficiary or the performance of any
obligations of any Beneficiary and to give any guarantee or
to become surety for any Beneficiary and for these purposes
to mortgage or charge any investments or property for the
time being forming part of the Trust Fund or to deposit or
transfer any such investments or property with or to any
person, firm or company by way of security.
6. Dispositive Powers Over Income
6.1 In default of and until and subject to any and every appointment made
under sub-clauses 5.1 to 5.5 hereof the Trustees shall have power
during the Trust Period to allocate the income from the Trust Fund to
such one or more of the Beneficiaries for the time being in existence
as the Trustees shall in their absolute discretion determine.
6.2 The Trustees shall stand possessed of the income allocated to a
Beneficiary under the provisions of the preceding sub-clause 6.1 upon
trust
6.2.1 if such Beneficiary has attained the age of 18 years to pay or
apply the same to or for the benefit of such Beneficiary;
6.2.2 if such Beneficiary has for the time being not attained the
age of 18 years the Trustees may at their discretion pay or
apply for or towards the maintenance education or benefit of
such Beneficiary the whole or part of such income as the
Trustees may in their discretion think fit and shall until
that Beneficiary attains the age of 18 years accumulate all
the residue of that income in the way of compound interest by
investing the same and the resulting income thereof in any of
the investments hereby authorised and shall hold the
accumulations so made as a
7
separate fund in trust absolutely for such Beneficiary if he
shall attain the age of 18 years and the Trustees shall have
power to exercise in relation to such separate fund the powers
contained in sections 31 and 32 of the Trustee Act of 1925 as
varied by sub-clauses 2.1 and 2.2 hereof Provided Always that:
6.2.2.1 if such Beneficiary shall die under the age of 18
years and before the end of the Trust Period such
separate fund and any accumulations of the income
thereof shall go and be held as an accretion to the
Trust Fund and as one fund therewith for all
purposes;
6.2.2.2 if such Beneficiary shall be living at the end of
the Trust Period but shall not on or before the end
of the Trust Period have attained the age of 18
years the separate fund and any accumulations of
the income thereof shall at the end of the Trust
Period vest in the Beneficiary absolutely.
7. Trusts in Default of Appointment
7.1 In default of and until and subject to any and every appointment made
under sub-clauses 5.1 to 5.5 hereof and the exercise by the Trustees of
the powers conferred by sub-clauses 6.1 and 6.2.2 hereof and paragraph
6 of the Schedule hereto the Trustees shall:
7.1.1 during the Trust Period accumulate the income of the Trust
Fund at compound interest by investing it and the resulting
income thereof in any of the investments authorised by this
Deed and shall hold such accumulation as an accretion to the
capital of the Trust Fund as one fund therewith for all
purposes;
7.1.2 at the end of the Trust Period hold the Trust Fund and the
income thereof on trust for such of the Beneficiaries as shall
then be living and if more than one in equal shares absolutely
and in default of such Beneficiaries on trust absolutely for
such one or more Charities as the Trustees shall in their
absolute discretion appoint.
8. Administrative Powers
8.1 The Trustees may administer this Settlement for the benefit of the
Beneficiaries in whatever manner they may determine and in that regard
may carry out any transaction whatever in connection with this
Settlement and shall have the widest possible powers of managing and
dealing with the Trust Fund in all respects as if the Trustees were the
absolute beneficial owners of the Trust Fund including, without
prejudice to the generality of the foregoing, the powers contained in
the Schedule hereto and the Trustees may exercise or omit to exercise
the powers herein contained form time to time at their discretion.
8
8.2 The Trustees shall wherever possible apply monies received by way of
gift, loan or other contribution from the Company and any Subsidiary on
the terms set out herein for the Beneficiaries who are employees or
former employees of the Company or such Subsidiary and that wherever
possible they will keep separate accounts in relation to monies so
received.
9. Trustees' Powers Generally
9.1 Every discretion or power (including any power of appointment or power
of revocation) conferred on the Trustees by this Deed or by law shall
be an absolute and uncontrolled discretion or power and no Trustee
hereof shall be held liable for any loss or damage accruing as a result
of his concurring or refusing or failing to concur in any exercise of
any such discretion or power.
9.2 Every power authority or discretion conferred upon the Trustees or on
any other person but not expressly made exercisable only during a
period allowed by law shall (notwithstanding anything to the contrary
herein expressed or implied) be exercisable only before the end of the
Trust Period or during such further period (if any) (either definite or
indefinite) as in the case of the particular power or authority or
discretion the law may allow.
9.3 This Settlement shall not be construed so as to confer on the Trustees
any trust or power which might or could be exercised at any time or
times after the end of the Trust Period or which might or could be
exercised so as to cause or permit any interest in the Trust Fund to
vest after the Perpetuity Date.
9.4 In the exercise of their foregoing powers and discretions the Trustees
may consider any recommendations made to them by the Board but shall
have no power to direct the Trustees to comply with such
recommendations.
9.5 For the purpose of ascertaining whether or not any individual is a
Beneficiary the Trustees may rely on any information provided to them
by the Company.
9.6 Notwithstanding any other provision of this Trust no assets or income
of the Trust Fund shall be applied at any time for the benefit of any
Group Company other than to repay any loan and interest thereon made to
the Trustees by a Group Company.
9.7 If a person other than a Group Company makes a gift to the Trust or
transfers assets to the Trust otherwise than on bona fide commercial
terms with gratuitous intent then the Trustees may not provide any
benefit under the Trust to that person nor during that person's
lifetime to his or her spouse.
9
10. Protection of the Trustees
10.1 No individual or corporate Trustee shall be liable for any loss or
damage which may occur to the Trust Fund or the income thereof arising
from any purchase of Shares or waiver of dividend attributable thereto
or from any proper investment waiver or purchase made by him in good
faith, or for the negligence or fraud of any agent employed by him or
by any other Trustee although his employment was not strictly necessary
or expedient, or by reason of any mistake or omission made in good
faith by any Trustee.
10.2 The Trustees shall not be bound or required to interfere with or play
any part in the management or conduct of the business of any
corporation any part of the share capital or debentures or loan stock
of which or of any subsidiary of which is for the time being comprised
in the Trust Fund but so long as there shall be no notice of any act of
dishonesty or misappropriation or misapplication of monies or other
property on the part of the directors or other persons having such
management or conduct the Trustees may leave the same (including the
payment or non-payment of dividends or any other distribution) wholly
to such directors or other persons and no Beneficiary shall be entitled
as such Beneficiary in any manner whatsoever to compel control or
forbid the exercise, or the exercise in any particular manner, or any
voting or other rights which may at any time be vested in the Trustees
with regard to such corporation.
10.3 The Company and where appropriate the Subsidiaries shall pay to or
reimburse the Trustees upon demand all charges and expenses reasonably
incurred by them in the course of the administration operation and
termination of this Trust and shall keep the Trustees fully indemnified
and saved harmless against all actions, claims, losses, demands,
proceedings, charges, expenses, costs, damages, taxes, duties and other
liabilities arising out of anything done or caused to be done by them
or suffered or incurred by them in the exercise or purported exercise
of any of the powers and trusts vested in them by this Deed or
otherwise howsoever arising out of or in connection with the
preparation, administration, operation or termination of this
Settlement but so that no Trustee shall be indemnified or exonerated in
respect of any fraud or wilful misconduct on his part and in addition
the Trustees shall have the benefit of all indemnities conferred upon
trustees generally by law and by the Trustee Act of 1925.
10.4 The Trustees shall be entitled in the absence of manifest error to rely
without further enquiry on information and advice necessary to enable
them to fulfill their duties and obligations hereunder and to exercise
their rights in connection with the implementation and operation of
this Settlement supplied to them by the Company or any of the
Subsidiaries for the purposes hereof including (but without prejudice
to the generality of the foregoing) information as to whether any
individual is or is not a Beneficiary and the Trustees shall also be
entitled to rely in the absence of manifest error on any direction,
notice, consent or document purporting to be given or executed by or
with the authority of the Company or any Subsidiary as having been so
given or executed.
10
11. Remuneration Etc. of the Trustees
11.1 Every Trustee shall be entitled to remuneration upon such terms as may
be agreed by the person or persons who for the time being has or have
power to appoint a new trustee and in the absence of such agreement
every Trustee shall be entitled to remuneration in accordance with its
published terms and conditions for trust business in force from time to
time.
11.2 Any Trustee:
11.2.1 may transact on behalf of or with this Settlement or any
Beneficiary any business which he or it is authorised to
undertake upon the same terms as would for the time being be
made with an ordinary customer and without accounting for
any profit thereby made and in particular and without
prejudice to the generality of the foregoing such Trustee
may retain on current account or deposit account or advance
at interest all monies necessary or convenient to be
retained or advanced in connection with this Settlement and
may retain any commission or remuneration paid or allowed by
stockbrokers, insurance companies, banks or other
institutions without being liable to account for any profit
thereby made;
11.2.2 may transact business on behalf of this Settlement or any
Beneficiary with any corporation or partnership in which the
Trustees or any of them are office holders or shareholders
or partners or are otherwise financially interested, or with
any person or firm holding shares or being otherwise
financially interested in the Trustees or any of them
without being liable to account for any profit accruing to
the Trustees as a result of such business, and the Trustees
may hold office in any corporation, shares or securities
which comprise or form part of the Trust Fund, and shall not
be liable to account to the Settlement for emoluments
received by them as such office holders;
11.2.3 who is engaged in any profession, business or trade may be
employed by the Trustees and any Trustee so engaged and
employed may charge and be paid all reasonable professional
business or trade costs and charges for business transactions
and time expended and acts done by him (or any partner or
employee of his) in connection with this Settlement including
acts which a Trustee not being engaged in any profession,
business or trade could have done personally and whether or
not in the usual scope of his profession business or trade;
and
11.2.4 may exercise or concur in exercising all powers and
discretions given to him by this Deed or by law
notwithstanding that he has a direct or other personal
interest in the mode or result of any such exercise but any of
the Trustees may nevertheless abstain from acting except as a
merely formal party in any matter in which he may
11
be so directly or personally interested and may allow his
co-trustees to act alone in relation thereto.
12. Beneficiary Who is Trustee Director or Employee
12.1 The Trustees may exercise any duty or power or discretion hereby
conferred on them in favour of any person notwithstanding that he is
one of the Trustees so long as either such person has not voted on any
resolution to the Trustees relating to such exercise or at least one of
the Trustees is neither a Beneficiary nor a corporate trustee whose
directors include a Beneficiary.
12.2 The Trustees may exercise any such duty or discretion in favour of any
person notwithstanding that he is a director of a corporate trustee
hereof.
13. Limitation on Rights of Beneficiaries
13.1 For the avoidance of doubt it is hereby declared that no Beneficiary
shall be entitled to:
13.1.1 any claim, right or entitlement whatever to any part of the
Trust Fund or the income thereof except in so far as herein
expressly provided or the same may arise by virtue of the
exercise of any power contained herein;
13.1.2 any claim, right or entitlement during the Trust Period to
call for the accounts (whether audited or otherwise) from the
Trustees in relation to the Trust Fund and the income thereof
or to obtain any information of any nature from the Trustees
in relation to the Trust Fund and the income thereof and in
relation to the trusts and powers hereof;
13.1.3 to compel the sale or other realisation of any property or
investments not producing income; and
13.1.4 to insist on the investment of any part of the Trust Fund in
property or investments which produce income.
13.2 The benefits which may from time to time be provided under this Trust
shall not form part of any contract of employment between the Company
or any Subsidiary and any of their respective employees or confer on
any employee any legal or equitable rights against the Company or any
Subsidiary either directly or indirectly nor give rise to any cause of
action in law against the Company or any Subsidiary and any employee
who leaves the employment of the Company or any Subsidiary shall not be
entitled to any compensation for or by reference to any loss of any
existing or prospective right or benefit under this Trust which he
might otherwise have enjoyed whether such compensation is claimed by
12
damages for wrongful dismissal or other breach of contract or by way of
compensation for loss of office or otherwise.
13.3 Money paid to or any other benefit conferred on any Beneficiary out of
the capital or income of the Trust Fund shall not (save as may be
required by law in respect of taxation) form part of his wages or
remuneration or count as wages or remuneration for pension fund or
other purposes.
14. Retirement and Appointment of Trustees
14.1 The statutory power of appointing new or additional trustees as
hereinafter modified shall apply hereto and shall be exercisable by the
Trustees.
14.2 The statutory power of appointing new or additional trustees shall be
modified as follows:
14.2.1 where new or additional trustees are appointed for the whole
or any part or parts of the Trustee Fund the appointor or
appointors may at their absolute discretion appoint any
person or persons as trustee or trustees notwithstanding
that (i) such person or persons may be resident domiciled
carrying on business or (if a corporate body) incorporated
outside the United Kingdom (ii) as a result of such
appointment (and any retirement occurring in connection
therewith) all or a majority of the Trustees are persons
resident or domiciled outside the United Kingdom and (iii)
that no Beneficiary is resident outside the United Kingdom
and the receipt of such person or persons for the whole or
such part or parts of the Trust Fund as may be paid or
transferred to such person or persons pursuant to such
appointment shall be a good discharge to any other trustee
or trustees accordingly;
14.2.2 the statutory power of appointing new trustees shall not be
exercisable by reason only that a Trustee remains out of the
United Kingdom for more than twelve months; and
14.2.3 the statutory power of appointing additional trustees shall be
exercisable notwithstanding that the only Trustee for the time
being is a corporation that is not a Trust Corporation.
14.3 In addition to the said statutory power the Trustees shall have power
at any time by deed to appoint any person to be an additional trustee
hereof notwithstanding that the effect of such appointment would be to
increase the number of trustees hereof beyond four.
14.4 Any Trustee may retire at any time provided he gives 30 days written
notice to the person or persons who for the time being has or have the
power to appoint new trustees.
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15. Trustees Can Act by Majority
15.1 The Trustees may act by a majority in the execution of the trusts and
the administration of the Trust Fund (including the exercise of any
power hereby or by law conferred on the Trustees) Provided that:
15.1.1 the minority shall not be liable for any acts or default on
the part of the majority;
15.1.2 the majority shall keep written records of their proceedings
and shall without undue delay inform the minority of the
Trustees not joining in any execution or administration of the
manner in which the majority have effected the said execution
or administration; and
15.1.3 all acts necessary for giving effect to any decision of the
majority shall be performed by all of the Trustees.
16. Proper Law, Forum and Place of Administration
16.1 The proper law hereof shall be that of England and Wales and all rights
hereunder and the construction and effect of this Deed shall be
construed according to the laws of England and Wales.
16.2 The courts of England and Wales shall be the forum for the
administration hereof including for resolving any and all disputes
concerning the interpretation of this Deed.
16.3 Notwithstanding the provisions of sub-clauses 16.1 and 16.2 above, the
Trustees may at any time during the Trust Period declare by deed that
the trusts powers and provisions hereof shall from the date of such
declaration take effect (with such modifications as shall be specified
in such deed) in accordance with the law of such other territory as
shall be therein specified and as from the date of such declaration the
law of such other territory shall be the law applicable hereto and the
courts in such territory shall be the forum for the administration
hereof but subject to the powers conferred by this clause and until any
further declaration is made hereunder Provided that the foregoing power
shall not be exercisable in any manner which might directly or
indirectly cause this Settlement under the law applicable thereto to
become illegal, void or voidable or which may in any way alter the
beneficial interests hereunder.
16.4 Notwithstanding the provisions of sub-clauses 16.1 and 16.2 above the
Trustees shall have power to carry on the general administration of the
Trust in any jurisdiction in the world whether or not such jurisdiction
is for the time being the proper law of the Trust or the courts of such
jurisdiction are for the time being the forum for the administration of
the Trust and whether or not the Trustees or any of them are for the
time being resident or domiciled in or otherwise connected with such
jurisdiction.
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17. Release of Trustees' Powers
The Trustees may at any time or times during the Trust Period by deed or deeds
revocable during the Trust Period or irrevocable, release or restrict the future
exercise of any of the powers (including the power conferred by this clause 17)
authorities or discretions conferred by this Deed or by law as if (subject to
any contrary intention expressed in the instrument) the same were vested in the
Trustees otherwise than in a fiduciary capacity and so as to bind their
successors.
18. Power of Amendment
The Trustees may at any time or times during the Trust Period by deed or deeds
make any variation, addition or deletion of or to all or any of the trusts,
powers and provisions of this Deed which they consider to be for the benefit of
all or any one or more of the Beneficiaries Provided Always that no such
variation or deletion may be made to any of the limitations contained in clause
19.1 or clause 20 hereof.
19. Restrictions
19.1 Notwithstanding anything else contained or implied in this Deed no
power conferred by this Deed or by law on the Trustees or any other
person shall be exercised and no provision of this Deed shall operate
directly or indirectly so as:
19.1.1 to cause the Trust Fund to cease to be held on trusts of the
description specified in Section 86(1) of the Inheritance Tax
Act 1984; and
19.1.2 to cause or permit any part of the capital or income of the
Trust Fund to become in any way payable or applicable for the
benefit of the Company or any Subsidiary or any other person
or person who shall previously have added property to the
Trust Fund to be held on the terms of this Settlement or the
spouse for the time being of any such person otherwise than
(for the avoidance of doubt) by way of loan repayment or other
discharge of indebtedness and neither the Company nor any
Subsidiary nor any such person shall be:
19.1.2.1 a Beneficiary hereof, or
19.1.2.2 entitled to remuneration as a Trustee in any way;
19.1.3 to prevent any employees' share scheme of which this
Settlement forms a part from being an employees' share scheme
within the definition contained in Section 743 of the
Companies Act of 1985.
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20. Irrevocability
This Settlement shall be irrevocable.
21. Name of Settlement
This Settlement shall be knows as "the Allsport Photographic Employee Share
Trust".
22. Stamp Duty Certificate
It is hereby certified that this instrument falls within Category L in the
Schedule to the Stamp Duty (Exempt Instruments) Regulations 1987 (and is exempt
from duty under the head "Conveyance or Transfer of any kind not hereinbefore
described" in the Schedule to the Stamp Act 1891).
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