SEVEN ARTS PICTURES PLC - and - SMITH & WILLIAMSON TRUSTEES (JERSEY) LIMITED TRUST DEED establishing THE SEVEN ARTS PICTURES EMPLOYEE BENEFIT TRUST Lewis Silkin LLP Clifford's Inn London EC4A 1BU Ref: SFC
EXHIBIT
10.22
DATED 21st October
0000
XXXXX
XXXX PICTURES PLC
- and
-
XXXXX
& XXXXXXXXXX TRUSTEES (JERSEY) LIMITED
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establishing
THE SEVEN
ARTS PICTURES EMPLOYEE BENEFIT TRUST
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Xxxxx
Xxxxxx LLP
0
Xxxxxxxx Xxxx
Xxxxxxxx'x
Xxx
Xxxxxx
XX0X 0XX
Ref:
SFC
1
CONTENTS
Clause
|
Page
number
|
|
1
|
Definitions
and interpretation
|
3
|
2
|
Declaration
of Trusts
|
5
|
3
|
Application
of funds
|
5
|
4
|
Payments
to the Trust
|
9
|
5
|
Deduction
of tax
|
10
|
6
|
Information
provided to the Trustees
|
10
|
7
|
Powers
of exclusion
|
11
|
8
|
General
powers of the Trustees
|
12
|
9
|
Dealings
with reserved shares
|
:17
|
10
|
Trustees'
liability
|
18
|
11
|
Company
to indemnify the Trustees
|
19
|
12
|
Appointment
retirement and removal of Trustees
|
20
|
13
|
Remuneration
of Trustees
|
21
|
14
|
Waiver
of dividends and voting rights
|
22
|
15
|
Governing
law
|
23
|
16
|
Alteration
of Governing law
|
23
|
17
|
Powers
of the Company and the Trustees
|
23
|
18
|
Amendment
of Trust Deed
|
24
|
19
|
Restrictions
on exercise of powers
|
24
|
20
|
Exclusion
of the Company and Group Companies from benefit
|
25
|
21
|
Trustees
may be interested in Group Companies
|
25
|
22
|
Maximum
Value of Benefits
|
25
|
23
|
Power
to Disclose Information
|
25
|
24
|
Counterparts
|
26
|
25
|
Irrevocability
|
26
|
2
THIS
TRUST DEED is made the 21st day of October 2008
BETWEEN:
1. SEVEN
ARTS PICTURES PLC (registered in England under number 04276617) whose registered
office is at Xxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx XX0X 0XX (xxx 'Company')
and
2. XXXXX
& XXXXXXXXXX TRUSTEES (JERSEY) LIMITED whose registered office is at IFG
House, 00 Xxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx, XX0 0XX (the 'Original
Trustee')
WHEREAS
(A) By
the execution of this Deed the Company intends to establish an employees' share
scheme to encourage and facilitate the acquisition and holding of shares in the
Company by and for the benefit of employees and former employees of
the
Company and
any other company within the Group and persons of a class defined by reference
to marriage to, civil partnership with, relationship to or dependence on such
employees and former employees.
(B) The
Original Trustee has agreed to act as the first trustee of this
Trust.
(C) The
Company has transferred or is about to transfer the sum of £100 (one hundred
pounds) to the Original Trustee.
(D) It
is contemplated that fu rther sums will from time to time be paid by the Company
and other companies within the Group to the Trustees to be held on the trusts
hereof.
(E) It
is intended that the Company and any Group Company may in future establish one
or more share incentive and/or long term incentive plans and/or other
arrangements for the distribution and/or application of the Trust
Fund.
NOW THIS
DEED WITNESSES as follows:
1 DEFINITIONS
AND INTERPRETATION
1.1 Definitions
In this
Deed the following words and expressions shall where the context so permits have
the following meanings respectively:
Beneficiaries the
bona fide employees and former employees from time to time
of the Company and any Group Company and the Relatives of such employees and
former employees but excluding any such person who is:
3
(a) resident
for tax purposes in Jersey;
(b) a
US citizen;
(c) a
US resident alien; or
(d) a
US green card holder;
Group Company: any company which is the
Company's subsidiary its holding company or a subsidiary of its holding company
as those terms are defined by Section 1159 of the Companies Xxx
0000;
Relatives: spouses and civil partners and
surviving spouses and surviving civil partners and children and step-children
under the age of 18 together with any other person or persons who may from time
to time be added to the class
of Beneficiaries in accordance with Clause 3.3 and 'Relative' shall be construed
accordingly;
Shares: shares in the Company of any class
including, for the avoidance of doubt, convertible redeemable preference shares
and ordinary shares;
Trust: the Seven Arts Pictures Employee
Benefit Trust established by this
Deed;
Trustees: the Original Trustee or other trustee
or trustees for the time being
hereof;
Trust Fund: the said sum of one hundred pounds
and all property at any time
added thereto by way of further settlement accumulation of income capital
accretion or otherwise and all property from time to time representing the
same;
4
Trust Period: the period of eighty years
beginning with the date of this Deed (which period shall be the perpetuity
period applicable hereto) or if shorter the period from the date hereof to such
date as the Trustees may with the prior written consent of the Company appoint
by deed to be the date of expiration of the Trust Period (not being a date
earlier than the date of such deed).
1.2 Statutory
references
References
to any statutory provision are to that provision as amended previously enacted
re-enacted or consolidated from time to time.
1.3 Clause
headings
Clause
headings are for convenience only and shall not affect the construction and
effect of this Deed.
1.4 Singular
and plural etc
Where the
context permits words in the singular shall include the plural and the masculine
shall include the feminine and vice versa.
2 DECLARATION
OF TRUSTS
2.1 Principal
trusts
The
Trustees shall hold the Trust Fund UPON TRUST to pay or apply the income or
capital thereof to or for the benefit of all or any one or more exclusively of
the others or other of the Beneficiaries in such shares in such manner and
subject to such trusts powers and provisions (including on discretionary trusts
or with discretionary powers exercisable by any person or persons) (if any) as
the Trustees shall in their absolute discretion during the Trust Period by any
deed or deeds revocable (but only during the Trust Period) or irrevocable
appoint PROVIDED THAT:
(a) in
relation to contributions or loans made by the Company, a Beneficiary shall
be
eligible to receive a benefit from such assets of the Trust which comprise or
represent
such contributions or loans insofar as such Beneficiary is an employee
or former employee of any Group Company or a Relative of such employee;
and
5
(b) no
Beneficiary shall receive any benefit from assets of the Trust which
comprise
or represent contributions or loans made by any Group Company except to the
extent that such Beneficiary is also an employee or former employee of such
Group Company or a Relative of such employee.
2.2 Accumulation
powers
Subject
as aforesaid, the Trustees may during the Trust Period (or such lesser period as
shall be allowed by the law governing the trusts hereof) if in their absolute
discretion they shall think fit accumulate the whole or any part or parts of the
income of the Trust Fund by investing the same and the resulting income
therefrom in any investments hereby authorised and adding the accumulations to
the capital of the Trust Fund.
2.3 Exercise
of discretion in favour of Beneficiaries
Notwithstanding
anything to the contrary in this Deed, in relation to the income and
capital
of any part of the Trust Fund which shall comprise represent or arise from money
given to the Trustees by any Group Company by way of further settlement, the
Trustees shall exercise any trust power or discretion herein or otherwise
contained or conferred in favour only of persons who arc Beneficiaries by virtue
of their being (or being Relatives of) employees or former employees of that
Group Company.
3 APPLICATION
OF FUNDS
3.1 Generally
Without
prejudice to the generality of the preceding Clauses, it shall be lawful for the
Trustees
in exercise of their foregoing powers and discretions (and with due regard to
the rules against perpetuities and excessive accumulations) to appoint pay or
apply capital money for the benefit of all or any of the
Beneficiaries
(a) by
granting options (whether for full value in excess of full value at an
undervalue
or gratuitously) at the expense of the Trust Fund to 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 persons;
6
(b) by
selling to all or any of the Beneficiaries any Shares or other assets comprised
in the
Trust Fund at such price (which may be less than market value) as the
Trustees
shall determine if such sale would in the opinion of the Trustees be
advantageous
to such Beneficiaries;
(c) by
reserving any Shares or other assets comprised in the 'Trust Fund from time to
time for
the benefit of such Beneficiaries as the Trustees may in their absolute
discretion select and on such terms and subject to such conditions (if any) as
the Trustees may in their absolute discretion determine;
(d) by
lending the same to any Beneficiary upon such terms as to repayment and interest
(if any) and otherwise as the Trustees shall in their absolute discretion think
fit (PROVIDED THAT no such loan shall be made upon terms that repayment may be
made after the expiration of the Trust Period); and
(e) by
entering into binding contracts with the Beneficiaries whom it is thereby sought
to benefit to acquire from such Beneficiaries such assets at such price or
prices and at such time or times and upon such other terms as would in the
opinion of the Trustees be advantageous to such persons.
3.2 Power
of resettlement
The
Trustees shall also have power to transfer the Trust Fund or any part thereof
(without transgressing the rules against perpetuities) to the trustees of any
other settlement governed by the law of any part of the world and whose trustees
shall be resident domiciled and (if corporate) incorporated in any part of the
world to be held by them freed and discharged from the trusts
hereof.
3.3 Power
to add Beneficiaries
(a) The
Trustees shall have power at any time during the Trust Period to add to the
class of
Beneficiaries such one or more persons or classes of person as the Trustees
shall with the prior written consent of the Company determine provided
that such
person or persons or classes of person are related to or dependent on
bona fide
employees or former employees of the Company and any Group Company.
7
(b) Any
such addition shall be made by deed signed by the Trustees and:
(i) naming
or describing the person or persons or class of persons to be thereby
added to the class of Beneficiaries; and
(ii) specifying
the date (not being earlier than the date of such deed but during
the Trust Period) from which such person or persons or class of persons shall be
so added.
3.4 Options
granted by the Company or any Group Company
The
Trustees may agree with the Company or any Group Company that if either or any
of them shall at any time by notice in writing request the Trustees to transfer
to any Beneficiary any number of Shares in respect of which such Beneficiary
shall have exercised an option granted under a share option plan adopted by such
company in consideration of the payment to the Trustees of the price at which
such Shares may be acquired by the exercise of such option the Trustees shall
(to the extent that such Shares shall be comprised in the Trust Fund) transfer
to such Beneficiary such Shares in consideration of the payment to the Trustees
of such price.
3.5 Reservation
of shares and other assets
The
Trustees shall have power to agree with the Company or any Group Company that if
either or any of them shall at any time by notice in writing request the
Trustees to reserve any Shares or other assets comprised in the Trust Fund for
the benefit of any Beneficiary the Trustees shall (to the extent that such
assets are comprised in the Trust Fund) reserve such assets on the terms and
subject to the conditions (if any) requested by the Company or such other Group
Company or prescribed by the rules of any relevant employees' share
scheme.
3.6 Power
to benefit trustees who are Beneficiaries
(a) The
Trustees may exercise any power or discretion hereby conferred on them in
favour of
any person notwithstanding that he is one of the Trustees so long as at least
one of the Trustees is neither a Beneficiary nor a corporate trustee whose
directors include a Beneficiary;
8
(b) the
Trustees may exercise any such power or discretion in favour of any person
notwithstanding
that he is a director of a corporate trustee hereof so long as either he has not
voted on any resolution of the directors of such corporate trustee relating to
such exercise or at least one of the Trustees is neither a Beneficiary nor a
corporate trustee whose directors include a Beneficiary.
3.7 Exclusion
of participators in a close company from benefit
Notwithstanding
any other provisions of this Deed, if any sums or other assets have been
transferred to the Trust Fund by a company which is a close company (as defined
by Section 102(1) of the Inheritance Tax Act 1984) no part of that property may
be applied for the benefit of any of the categories of person specified in
Section 13(2) of that Act (as modified by Section 13(3)) except to the extent
permitted by Section 13(4) thereof.
3.8 Ultimate
default trusts
Subject
as aforesaid, the Trustees shall hold the Trust F-and and the income thereof
upon trust for such charity or charities as the Trustees shall in their absolute
discretion determine.
4 PAYMENTS
TO THE TRUST
Each
Group Company may at any time with the consent of the Company make contributions
or loans to the Trust Fund and the Trustees shall keep a separate account in
relation to the total amount of contributions or loans made by each Group
Company. A Group Company may make contributions so as to benefit Beneficiaries
who are its employees or former employees or their Relatives and the Company may
make contributions so as to benefit all or any of the Beneficiaries. Any loans
must be agreed to by the Trustees.
5 DEDUCTION
OF TAX
5.1 Withholding
and accounting
If at any
time the Trustees propose to pay or apply any sums or assets comprised in the
Trust
Fund to or for the benefit of any Beneficiary, and such payment or application
will or may
give rise to any liability for a Group Company to account for any income tax
and/or
other taxes, including social charges such as national insurance contributions
in the UK, ('Employees' Tax') on behalf of that Beneficiary in any jurisdiction,
the Trustees shall:
9
(a) before
such payment or application takes place, consult with the relevant Group
Company
in relation to the amount of the Employees' Tax;
(b) when
the payment or application is made, deduct and withhold the Employees'
Tax from
the relevant sums or assets; and account
directly to the relevant Group Company or the tax authority in the relevant
jurisdiction, such as HIM Revenue & Customs in the UK (the 'Relevant Tax
Authority'), as the relevant Group Company shall direct, for the Employees'
Tax.
5.2 Confirmation
to relevant Group Company
If and
when any such payment of Employees' Tax is made direct by the Trustees to the
Relevant Tax Authority the Trustees shall confirm the date of payment and the
amount paid to the relevant Group Company.
6 INFORMATION
PROVIDED '10 THE TRUSTEES
6.1 Provision
of information
The
Company shall provide, and shall procure that any Group Company provides, such
information as the Trustees may reasonably require, including without prejudice
to the generality of the foregoing:
(a) the
identity of the company which has provided funds by way of settlement
comprising
any part of the Trust Fund;
(b) the
identity of the company by which any Beneficiary who is or was an employee
of the Company or any Group Company is or was employed (or where any Beneficiary
is a Beneficiary by virtue of being the Relative of any employee or former
employee of the Company or a Group Company the identity of the company by which
that employee or former employee is or was employed);
10
(i) the
identity of the Beneficiaries or any of them; and
(ii) whether
any body corporate is a Group Company.
6.2 Reliance
on information provided
The
Trustees may rely without further enquiry on any information provided to them by
the Company or any Group Company for the purposes of this Deed. in particular
(but without prejudice to the generality of the foregoing) any written statement
signed by a person being or purporting to be a director or secretary of the
Company or of any Group Company to the effect that any person is or has ceased
to be a Beneficiary or as to any other circumstance affecting a person believed
by the Trustees to be or not to be a Beneficiary may be treated by the Trustees
as conclusive evidence of the matters stated in that statement.
7 POWERS
OF EXCLUSION
7.1 Exclusion
by Trustees
The
Trustees may, with the prior written consent of the Company, by declaration in
writing made at any time or times during the Trust Period declare that the
person or persons or members of a class named or specified (whether or not
ascertained) in such declaration who are would or might but for this Clause be
or become a Beneficiary or Beneficiaries or be otherwise able to benefit
hereunder (as the case may be):
(a) shall
be wholly or partially excluded from future benefit hereunder; or
(b) shall
cease to be a Beneficiary or Beneficiaries,
and any
such declaration may be irrevocable or revocable during the Trust Period and
shall have effect from the date specified in the said declaration PROVIDED
HOWEVER THAT the above powers shall not be capable of being e):ercised so as to
derogate from any interest to which any Beneficiary has previously become
indefeasibly entitled whether in possession reversion or otherwise nor so as to
reduce the number of Beneficiaries to below two.
11
7.2 Disclaimer
by Beneficiary
Any
person of full age to whom or for whose benefit any capital or income of the
Trust Fund may be liable (whether directly or indirectly) to be appointed
transferred or applied in any manner whatsoever by or in consequence of any
exercise of any trust power or discretion vested in the Trustees or in any other
person may by declaration in writing received by the Trustees during the Trust
Period either revocably (hut revocable only during the Trust Period) or
irrevocably:
(a) disclaim
his interest as an object of such trust power or discretion either wholly or
with respect to any special part or share of such capital or income;
or
(b) declare
that he shall cease to be a Beneficiary,
and such
declaration shall have effect from the date on which it is received by the
Trustees.
8 GENERAL
POWERS OF THE TRUSTEES
In
addition to all other powers vested in them by this Deed or by law the Trustees
shall have the following
powers:
8.1 To
retain Trust assets
Power at
their absolute discretion to retain the Trust Fund or any part
thereof (including
any uninvested money) in its actual state end condition for any period and
to vary
or transpose the mode of investment of the Trust Fund within the range
hereinafter
authorised.
8.2 To
invest
Power to
invest trust money in the acquisition (either by the Trustees alone or by them
jointly
with any other person or body of trustees) by purchase or otherwise of
Shares and/or
of any other assets or upon the security of such property of whatever nature
and
wherever situated and whether or not involving liability or producing an income
or upon such
personal credit (with or without security) as the Trustees shall in their
absolute discretion think fit to the intent that the Trustees shall have the
same full and unrestricted
powers of investment in all respects as if they were absolute beneficial
owners of
the Trust Fund and it is hereby declared that in exercising such power of
investment
the Trustees shall be under no duty to consider the diversification of
investment
and in particular they shall be at liberty to purchase such Shares or other
securities in the Company as they shall from time to time consider appropriate
even though the Trust Fund shall consist wholly of Shares or such other
securities.
12
8.3 To
charge Trust assets
Power to
charge or mortgage any property or investments 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 on trust or by way of security.
8.4 To
enter into option arrangements
Power to
enter into put/and or call arrangements in respect of Shares or securities in
the Company and to invest Trust money in the acquisition of Shares or securities
in the Company pursuant to the said put and/or call option arrangements even if
the price payable under those arrangements is in excess of the market value for
the time being of the said Shares or securities.
8.5 To
pay dividends
Subject
to Clause 14.1 power to pay to any Beneficiary who is contingently entitled to
any Shares or other assets any dividends or other distributions attaching to
such Shares or other assets.
8.6 To
consult Beneficiaries
Subject
to Clause 14.2 power to invite any Beneficiary for whom Shares have been
contingently
reserved:
(a) to
direct the Trustees as to the exercise of any voting rights attaching to such
Shares;
and
(b) in
the event that the Company grants any rights to acquire Shares or other
securities
or other rights of any nature in relation to Shares to direct the Trustees how
to act in relation to such rights.
8.7 To
guarantee debts of Beneficiaries
Power to
appropriate or apply the capital or income of the Trust Fund or any part thereof
in
securing the payment of money owed by any Beneficiary or the performance of
any
13
obligations
of any Beneficiary and to give any guarantee or to become surety for any
Beneficiary (or in any such case in respect of any company in which a
Beneficiary shall have an interest notwithstanding that others are so
interested) and for these purposes to mortgage or charge any property or
investments 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
on trust or by way of security.
8.8 To
delegate
Power
(notwithstanding any rule of law to the contrary) by deed or deeds revocable
during the Trust Period or irrevocable to delegate to any person or persons
(including one or more of themselves) for any period and upon such terms and
conditions as they shall think fit the execution or exercise of all or any of
the trusts powers and discretions by this Deed or by law conferred on the
Trustees in respect of all or such part or parts of the capital or the income
subject to these trusts as are specified in such
deed or deeds.
8.9 To
appoint agents
Power
instead of acting personally to employ and pay at the expense of the income or
capital subject to these trusts any agent in any part of the world whether
attorneys solicitors accountants brokers banks trust companies or other agents
without being responsible for the default of any agent if employed in good faith
to transact any business
or do any act required to be transacted or done in the execution of these trusts
including the receipt and payment of money and the execution of
documents.
8.10 To
appoint nominees
Power to
permit any money bonds share certificates or other securities or documents of
title to property real or personal for the time being subject to these trusts to
be and remain deposited with some or one only of the Trustees or with any person
or persons in any part of the world and to permit any investments securities or
other real or personal property which or any share or interest in which shall be
for the time being subject to these trusts to be and remain invested in the
names of any person or is persons
in any part of the world instead of in the naines of the Trustees with power to
delegate to such persons such of the trusts powers and discretions by this Deed
or by law
vested in the Trustees with reference to the premises so deposited or the
property so invested in the names of such persons.
14
8.11
To open bank accounts
Power to
open current or deposit accounts with any bank in any part of the world in the
names of the Trustees and to make such arrangements for the operation of such
accounts as they shall in their absolute discretion think fit including but not
by way of limitation arrangements as to the number of trustees to be required to
sign cheques drawn on such accounts and as to any maximum sum which may be
withdrawn at any one time on such signatures.
8.12 To
enter into transactions with Trustees
Power at
their absolute discretion so long as at least one of the Trustees shall have no
interest therein and shall not be a corporate trustee any of whose directors
shall have an interest therein to enter into any contract disposition or
transaction with any one or more of themselves or any director or any corporate
trustee hereof (whether such one or more of themselves or such director shall be
acting alone or jointly with other persons) if the Trustees could lawfully have
entered into the same if dealing with persons not including any of themselves
and not being directors of a corporate trustee and if they shall have received
advice from competent valuers that the same shall be in the interests of the
Beneficiaries or such of them as would 6e affected by the same.
8.13
To allow companies to retain income
Power if
they shall consider the same to be expedient in the interests of the
Beneficiaries or such of them as would be affected thereby to permit any company
any of whose shares stock or securities are comprised in the Trust Fund to
retain any part of its income and so that the Trustees shall not be bound to
take any steps to remove any director of any such company who may recommend any
such retention of its income.
8.14 To
act as banker
Power for
any of the Trustees being a banker to act as banker to the Trustees and any of
the
Trustees being a subsidiary or any associated company of a banker to employ such
banker as
banker for the purposes hereof and (subject as otherwise provided in this Deed)
in
neither case shall such banker or such of the Trustees be liable to account for
any profits or advantages so obtained.
15
8.15 To
appropriate assets
Power
(exercisable either expressly or by implication) to allot appropriate partition
or apportion any property whatever which is (or the future proceeds of sale of
which are) for the time being subject to the trusts hereof in or towards the
satisfaction of any share or interest in the Trust Fund or the income thereof in
such manner as the Trustees shall in their absolute discretion (without the
necessity of obtaining any consent) consider just according to the respective
rights of the persons interested.
8.16
To allow employee Trustees to retain income
Power for
any of the Trustees (or any officer or employee of a corporate Trustee) to be
employed and remunerated as a director or other officer employee agent or
adviser of the Company or any other company body or firm in any way connected
with the Trust Fund and to keep as his property (and without being liable to
account therefor) any remuneration fees or profits received by him in any such
capacity notwithstanding that his situation or office may have been obtained or
may be held or retained in right or by means or by reason of his position as one
of the Trustees (or as an officer or employee of a corporate Trustee) or any
shares stock property or powers whatever belonging to or connected with the
Trust Fund.
8.17
To borrow
Power for
the Trustees at any time to borrow money on the security of the Trust Fund or
any part thereof or on personal security for any purpose for which Trust money
may be applied hereunder including the purpose of investment and on such terms
as to the payment of interest (if any) and as to repayment as the Trustees shall
in their absolute discretion think fit and no purchaser lender or other person
paying or advancing money in respect of any sale loan or other transaction
purported to be made by the Trustees under or for any of the purposes of this
Trust shall be concerned to see that the money is wanted or that no more than is
wanted is raised or otherwise as to the propriety of the transaction or the
application of the money PROVIDED THAT the Trustees may not borrow from the
Company or any Group Company on terms that are more
beneficial to such company than would have applied if the loan had been between
unconnected persons acting at arm's length.
16
8.18 To
lend
Power for
the Trustees at any time to lend money or other assets comprised in the Trust
Fund to any person or persons with or without security and at such rate of
interest (if any) as the Trustees shall in their absolute discretion think fit
PROVIDED THAT if any loan is made to a person or persons who is not a
Beneficiary such loan may only be made on terms which would apply to the
borrower if the loan had been between unconnected persons acting at arm's
length.
8.19 To
pay taxes
Power to
pay any taxes fees or duties (and any interest and penalties chargeable thereon)
in relation to the Trust Fund or any part thereof in arty circumstances
whatsoever and notwithstanding that such taxes fees or duties are not legally
enforceable against the Trustees.
8.20 Dealings
with Shares
Power to
purchase Shares from or sell Shares to a Beneficiary or the trustees for the
time being of any other settlement to whom transfers of capital money may be
made under the provisions of Clause 3.1.1 hereof at such price (which need not
be market value) as the Trustees shall think fit or to give Shares to a
Beneficiary or to the trustees for the time being of any such settlement if in
the opinion of the Trustees a purchase or sale of Shares at that price or a gift
of Shares shall be beneficial to the Beneficiary or Beneficiaries whom it is
thereby sought to benefit.
9 DEALINGS
WITH RESERVED SHARES
9.1 Duty
to notify Beneficiaries
Where the
Trustees shall have reserved, granted any options over, or entered into any
other arrangement in respect of Shares or other assets comprised in the Trust
Fund, they shall as soon as possible inform the Beneficiary in whose favour such
reservation or other arrangement has been made, or such option has been granted,
of any arrangement entered into affecting or any alteration or proposed
alteration to any rights or liabilities attaching
thereto and on receipt from such Beneficiary
17
within
such time as the Trustees shall specify of a notice advising the Trustees of the
same, enter into any compromise or arrangement with respect to, or release or
forbear to exercise all or any of their rights as shareholders or owners
(whether in connection with a scheme of reconstruction or amalgamation or
otherwise) and may accept in or towards satisfaction of all or any of such
rights such consideration as such Beneficiary shall direct, whether in the form
of cash or stock, shares, debentures, debenture stock or obligations or
securities without the Trustees being in any way liable or responsible for any
loss resulting from complying with any such direction or any liability or
increased liability of such Beneficiary to tax or in respect of any inadequacy
or alleged inadequacy in the nature or amount of such
consideration.
9.2 Exoneration
of the Trustees
The
Trustees shall not be liable or responsible for any loss or liability or
increased liability of a Beneficiary to tax arising out of any failure by the
Trustees to inform the Beneficiary of any proposed alteration as set out in
Clause 9.1 above or the failure of such Beneficiary to give a direction to the
Trustees or to give a direction within a particular time or if the Beneficiary
has directed the Trustees to use their discretion arising out of the bona fide
exercise by the Trustees of that discretion.
10 TRUSTEES' LIABILITY
10.1 General
exoneration
In the
professed execution of these trusts and the provisions hereof no Trustee and no
director employee or other officer of a corporate Trustee shall be liable for
any loss arising by reason of any mistake or omission made hi good faith by any
of the Trustees or by reason of any other matter or thing except fraud or wilful
misconduct or gross negligence on the part of the Trustee who is sought to be
made liable or in the case of a body corporate which is a Trustee hereof the
fraud or wilful misconduct or gross negligence of any director officer or
employee of such body corporate.
18
10.2 Exoneration
of retiring or removed Trustee
On any
Trustee retiring or being removed as a Trustee hereof, such retiring or removed
Trustee shall be under no liability whatsoever in relation to these trusts for
any money or other property which is (or but for any default on his part would
have been) held subject to these trusts or any matter arising in relation to
these trusts or any money or property in relation hereto during the period in
which he was a Trustee except in the case of fraud or wilful misconduct or gross
negligence on the part of such retiring or removed Trustee or in the case of a
body corporate the fraud or wilful misconduct or gross negligence of any
director officer or employee of such body corporate which is retiring or being
removed as Trustee.
10.3 No
duty to interfere in management
The
Trustees shall be under no obligation to become directors or officers or
interfere in the management or affairs of any company any of the shares or stock
of which are for the time being comprised in the Trust Fund or any company
associated with such company notwithstanding that the Trustees have (whether
directly or indirectly) a substantial holding in or control of any such company
or to seek information about the affairs of any such company but may leave the
conduct of the affairs of any such company to its directors or other persons
managing the company (so long as they have no actual notice of any act of
dishonesty on the part of such directors or others in connection with the
management of the company).
10.4 No
liability in relation to dividend waivers
The
Trustees shall incur no liability whatsoever in relation to the waiver of
dividends pursuant to Clause 14 hereof.
11 COMPANY
TO INDEMNIFY THE TRUSTEES
Without
prejudice to any right of indemnity by law given to trustees and any attorney
agent or other person appointed by them hereunder the Company hereby covenants
with the Original Trustee that it will at all times hereafter keep it and each
ind all of its successors in title as trustees and each of their estates and
effects (and each director officer and employee of a corporate Trustee and their
estates and effects) fully indemnified and saved harmless against the
entirety
of all claims losses demands actions proceedings charges expenses costs damages
taxes duties and other liabilities that may be suffered or incurred by them or
by any of them as Trustees hereof in any manner whatsoever save in each such
case to the extent that any such liability can properly be discharged at the
expense of the Trust Fund and the Trust Fund is sufficient for this purpose
PROVIDED THAT without prejudice to the provisions of this Deed no Trustee shall
be indemnified hereunder or exonerated in respect of any fraud or wilful
misconduct or gross negligence on his own part or (in the case of a corporate
trustee) that of any director officer or employee of such Trustee.
19
12 APPOINTMENT
REMOVAL AND RETIREMENT OF TRUSTEES
12.1 Appointment
(a) The
statutory power of appointing new and additional trustees hereof shall be
vested in
the Company and shall be exercisable with the prior written consent of the
Trustees, such consent not to be unreasonably withheld or delayed;
(b) in
addition to the said statutory power the Company shall have power (subject
as
aforesaid) at any time or times by deed to appoint any person to be an
additional trustee hereof notwithstanding that the effect of any such
appointment is to increase the number of trustees hereof beyond
four;
(c) for
the avoidance of doubt it is hereby declared that any person wheresoever
resident
and whether an individual or a body corporate (other than the Company) may be
appointed as a trustee hereof.
12.2
Removal and retirement
The
Company may at any time by deed remove any trustee hereof and any trustee hereof
may at any time by giving not less than thirty days' notice in writing to the
Company retire forthwith from the trusts hereof PROVIDED THAT if after such
removal or retirement there shall not be at least one corporate trustee or two
individual trustees hereof such removal or retirement shall not be effective and
the outgoing trustee shall not be discharged until sufficient new trustees have
been appointed by the Company (with the consent of the Trustees other than the
outgoing trustee) in place of such outgoing trustee to make up the number of
Trustees as aforesaid PROVIDED FURTHER THAT if
the Company shall not have appointed a new trustee hereof within three months of
receiving such written notice of retirement then for the purpose only of
enabling the Trustee wishing to retire to be discharged as trustee hereof as
aforesaid the power of appointment of new trustees shall be exercisable by such
retiring trustee (and if more than one jointly).
20
12.3 Consequential
documents
Acts and
deeds done or executed for the proper vesting of the assets subject to these
trusts in new or additional trustees shall be done and executed by the
continuing or retiring trustee or trustees at the expense of the Trust
Fund.
12.4 Acts
of corporate Trustee
Any of
the Trustees being a corporation shall have power to act by its officers duly
authorised in accordance with its constitution for the time being in
force.
12.5 General
Section
36(1) of the Trustee Act 1925 shall not apply to this Trust and the provisions
of Sections 37 and 39 of that Act shall apply to this Trust as if any reference
therein to a 'trust corporation' were a reference to any
corporation.
13 REMUNERATION
OF TRUSTEES
13.1 Standard
terms and conditions of corporate Trustees
Any
corporate Trustee hereof may act in accordance with its standard terms and
conditions from time to time in force or, if none, such terms as may be agreed
upon by the Company at the date of its appointment as Trustee and in addition to
reimbursement of its proper expenses it shall be entiled to remuneration (free
of any Inheritance Tax or other succession estate or death duties wheresoever
payable and as a charge on the Trust Fund) for its services as trustee in
accordance with its published scale of fees in effect at the date hereof while
such scale remains in force and thereafter in accordance with its published
scale of fees in force from time to time PROVIDED HOWEVER that such Trustee may
transact on behalf of or with this Trust or any Beneficiary hereunder any
business which by its constitution 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 money necessary
or convenient to be retained or advanced in connection with this Trust and may
retain for itself any commission or remuneration paid or allowed by stockbrokers
insurance companies or other agents without being iable to account for any
profit thereby made.
21
13.2 Individual
Trustees' charges
Any
individual Trustee hereof being a person engaged in any profession or business
shall be entitled to be paid all usual professional or proper charges for the
business transacted time expended and acts done by him or his firm in accordance
with the trusts hereof including acts which a trustee not being in any
profession or business could have done personally.
13.3 Payment from the
Trust Fund
The
Trustees may pay from the Trust Fund all costs charges and expenses in
connection with the administration of the Trust or the management of the Trust
Fund.
14 WAIVER
OF DIVIDENDS AND VOTING RIGHTS
14.1 Dividends
The
Trustees shall waive or otherwise forgo any dividend or dividends due or to
become due at any time or times in the future in respect of any Shares or other
securities in the Company from time to time comprised in the Trw t Fund unless
and to the extent otherwise directed by Company.
14.2 Voting
rights
Unless
the Company determines otherwise, the Trustees shall abstain from voting any
Shares from time to time comprised in the Trust Fund.
22
15 GOVERNING
LAW
Subject
to Clause 16 hereof this Deed shall be construed and take effect in accordance
with the laws of Jersey.
16 ALTERATION
OF GOVERNING LAW
Notwithstanding
anything hereinbefore contained the Trustees may (with the prior written consent
of the Company) 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 necessary modifications as shall be specified in the said
deed, in accordance with the law of such other territory as shall be therein
specified and as from ihe date of such declaration the law of such other
territory shall be the law applicable hereto and the Courts in such other
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 Deed
under the law applicable thereto to become illegal void or
voidable.
17 THE
POWERS OF THE COMPANY AND THE TRUSTEES
17.1 Trustees'
discretion
Subject
as provided in Clause 19 hereof, the Trustees shall have absolute and
uncontrolled discretion in the exercise of powers conferred on them by this Deed
or by law and for the avoidance of doubt the Trust shall not be under the de
facto or de jure control of the Company or any Group Company and neither the
Company nor Group Company shall have power to take any step which would cause
the Trust to become under such control.
17.2 Expiry
of discretion
Notwithstanding
anything to the contrary in this Deed the Trustees shall only be empowered to
exercise their powers and discretions as trustees until the expiration of the
Trust Period.
23
17.3 Power
to release or restrict future exercise of powers
The
Trustees and/or the Company shall have the power at any time or times during the
Trust Period by deed to release or to any extent restrict the future exercise of
any powers hereby or by law conferred on them PROVIDED THAT the Trustees shall
not release or restrict their powers without the prior written consent of the
Company.
17.4 Power
to release requirement for consent
The
Trustees and/or the Company shall have power at any time during the Trust Period
to release the requirement under this Deed for their consent to be obtained to
the exercise by the Company or the Trustees (as the case may be) or all or any
of their powers hereunder.
18 AMENDMENT
OF TRUST DEED
18.1
Amendments to the Deed
Subject
as provided in Clause 1.8.2 hereof with the prior written consent of the Company
the Trustees may at any time or times during the Trust Period vary amend
restrict release modify alter or extend the trusts powers and provisions of this
Deed in any manner and in any respect whatsoever.
18.2 Limitations
on power to amend
No such
amended deed shall have the effect of enabling the Trust Fund or the income
thereof or any part respectively to become payable to or applicable for the
benefit of the Company or so as to cause this Trust to cease to satisfy the
provisions of Section 86 of the Inheritance Tax Xxx 0000.
19 RESTRICTIONS
ON EXERCISE OF POWERS
No power
authority or discretion hereby or by law conferred on the Trustees the Company
or any other person shall (notwithstanding anything to the contrary herein
expressed or implied) be exercisable in such manner as to cause this Trust to
cease to satisfy the provisions of Section 86 of the Inheritance Tax Xxx
0000.
24
20 EXCLUSIONS OF THE COMPANY AND GROUP
COMPANIES FROM BENEFIT
No power
or discretion hereby or by law conferred on the Trustees or the Company or any
of them shall (notwithstanding anything to the contrary herein expressed or
implied) be exercisable in such manner as to cause the whole or any part of the
Trust Fund or the income thereof to become payable to or applicable for the
benefit of the Company or any other Group Company.
21 TRUSTEES
MAY BE INTERESTED IN GROUP COMPANIES
A Trustee
(or any director employee or other officer of a corporate Trustee) shall not be
precluded from acquiring holding or dealing with any shares or other securities
of any Group Company or from entering into any contract or other transaction
with any Group Company or being interested in any such contract or transaction
and none of them shall be in any manner liable to account to any Group Company
or the Beneficiaries for any profits made or benefits obtained by them as a
result.
22 MAXIMUM
VALUE OF BENEFITS
The
Trustees shall not be liable to provide benefits under this Trust which in
aggregate exceed the value of the Trust Fund from time to time.
23 POWER
TO DISCLOSE INFORMATION
The
Company consents to the Trustees disclosing to any agent nominee bank or other
person appointed to act on behalf of the Trustees at any time:-
23.1 the
identity of the Company as settlor of the Trust; and
23.2 any
other information relating to the Trust and requested for the purposes of
identification
or otherwise,
where
such request is in the Trustees' absolute discretion, reasonable.
25
24 COUNTERPARTS
This
Trust Deed may be executed in any number of counterparts but shall not be
effective until each party has executed at least one counterpart. Each executed
counterpart shall constitute an original of this Trust Deed but all of the
counterparts together shall constitute one and the same instrument.
25 IRREVOCABILITY
This Deed
shall be irrevocable.
IN
WITNESS whereof the parties have executed this Deed on the above
date
EXECUTED
AND DELIVERED AS A
DEED
in the
presence of: /s/ Xxxxxx
New
Finance
Director
Witness
signature /s/ Nazlini
Xxxxxxxx
Witness
name in print
Nazlini
Xxxxxxxx
Witness
address
26
EXECUTED
AND DELIVERED AS A DEED
by XXXXX
& 'tiVILLEANISON TRUSTEES (JERSEY) LLMITED ) in the presence
of:
Director
27