EXHIBIT 99
FIRST SCHEDULE
RULES OF THE
PRUMERICA SYSTEMS IRELAND LIMITED
SHARE PARTICIPATION SCHEME
1. DEFINITIONS
In these Rules and in the Trust Deed:
1.1 The following words and expressions shall have the following meanings:
"Act" the Taxes Consolidation Act, 1997 (as amended).
"Appropriate Percentage" the percentage of the Locked-in Value of a
Participant's shares chargeable to income tax under Schedule E computed in
accordance with section 511(3) of the Act.
"Appropriation Date" in respect of any Scheme Share not being a New Share,
the date on which it is appropriated to an Eligible Employee pursuant to
Rule 3.2, and in respect of any New Share the date on which it is deemed to
have been appropriated pursuant to Rule 6.5.
"Approved Scheme" a Scheme approved by the Revenue Commissioners for the
purposes of Chapter 1, Part 17 of the Act and Schedule 11 thereof.
"Auditors" the Auditors for the time being of the Company.
"Basic Salary" the remuneration of an Eligible Employee for a Year of
Assessment including shift differentials, paid holidays and sick leave but
excluding overtime and any other fluctuating emoluments.
"Board" a duly constituted committee of the Directors
"Capital Receipt" the meaning given to that expression by section 513 of
the Act.
"Company" Prumerica Systems Ireland Limited
"Directors" the board of directors for the time being of the Company or a
duly authorised committee or officer appointed by them for the purposes of
administering the Scheme.
"Eligible Employee" at any Invitation Date any person who:
(i) (a) is an employee of a Participating Company, including a
full-time director, and
(b) is chargeable to tax under Schedule E in respect of that
employment, and
(c) is not serving notice of termination of their contract of
employment; and
(d) is at the Appropriation Date an employee of the Company
continuously for a period of one year and for this purpose
service with a Subsidiary which is a Participating Company
(or such other Subsidiary as the Company and the Trustees
agree) shall be treated as service with the Company, or
(ii) is any other employee of a Participating Company, including a
full-time director, who has a contract of employment and has been
nominated by the Directors for participation in the Scheme
provided that such person is not ineligible to become a Participant by
virtue of the provisions of Part 4, Schedule 11 of the Act.
"Entitlement" the amount of each Eligible Employee's entitlement as may be
determined in accordance with the Rule 3 or on such other basis as may,
from time to time, be agreed in writing with the Revenue Commissioners.
"Initial Market Value" the market value of a share (calculated in
accordance with section 548 of the Act) on the date on which the shares are
appropriated, or on such earlier date(s) as has been agreed in writing with
the Revenue Commissioners pursuant to section 510(2)(b) of the Act.
"Invitation Date" the date or dates in any year determined by the Company
as the date or dates on which Eligible Employees are offered participation
in the Scheme pursuant to Rule 2.
"Locked-in Value" the meaning given to that expression by section 512(1) of
the Act.
"New Shares" the meaning given to that expression by section 514(1) of the
Act.
"Parent Company" Prudential Financial Inc. whose principal office is
situated at 751 Broad Street, Newark, NJ 07102-3777.
"Participant" any person on whose behalf the Trustees hold a Scheme Share
including where the context requires any person in whom an interest in
Scheme Shares or an entitlement thereto becomes vested.
"Participating Company" any company being the Company or a Subsidiary which
is for the time being bound by the provisions of the Trust Deed other than
in its capacity as Trustee hereof.
"Period of Retention" the meaning given to that expression by section
511(1)(a) of the Act.
"Release Date" the meaning given to that expression by section 511(2) of
the Act.
"Residual Fund" means all moneys or Shares directed to be held as part of
the Residual Fund or for which no specific provision is made (other than
under Clause 14 of the Trust Deed) and the income (if any) arising
therefrom all of which shall be held in accordance with Clause 14.
"Rules" these rules with, and subject to, any modifications, alterations,
amendments or extensions hereto for the time being in force.
"Scheme" means the Prumerica Systems Ireland Share Participation Scheme
constituted by the Trust Deed and the Rules.
"Scheme Shares" any Share or other security in the Parent Company which has
been appropriated or has been deemed to have been appropriated under the
Scheme and is for the time being held by the Trustees on behalf of a
Participant.
"Shares" fully paid ordinary shares of the Parent Company which comply with
the provisions of Part 3, Schedule 11 of the Act and where the context
requires shall refer to a single share.
"Subsidiary" any subsidiary of the Company which is controlled by the
Company, control being construed in accordance with section 432 of the Act.
"Trust Deed" the trust deed constituting the Scheme with any modifications
and variations thereto for the time being in force.
"Trustees" the trustee or trustees for the time being of the Scheme
"Year of Assessment" the meaning given to that expression by section 2(1)
of the Act.
1.2 Words importing the singular shall include the plural and vice versa and
words importing the masculine shall include the feminine.
1.3 Any reference to any statute (or a particular part, chapter or section
thereof) shall mean and include any statutory modification or re-enactment
thereof for the time being in force and any regulations made thereunder.
2. CONDITIONS OF PARTICIPATION
2.1 On each Invitation Date the Company shall identify all Eligible Employees
and shall communicate in writing with each person advising him of his
Entitlement and asking whether he wishes to be a Participant in respect of
each related invitation.
2.2 Those Eligible Employees who wish to participate in the Scheme shall within
a period of fourteen days after receipt of the notification referred to
above, or such other period as the Company shall allow, return to the
Company a form of acceptance and a contract of participation (included in
the Second Schedule to the Rules) duly signed agreeing the terms and
conditions set out therein.
2.3 The contract shall be addressed to the Company and the Trustees and shall
be signed by the Eligible Employee and returned to the Company. An Eligible
Employee shall not be entitled to an appropriation of Scheme Shares unless
he has completed a contract which is binding in respect of any subsequent
appropriation to him of Scheme Shares unless he has previously varied its
terms by notice in writing addressed to the Company and the Trustees.
2.4 A signed contract shall bind the Eligible Employee in contract with the
Company and the Trustees:
(i) to permit his Scheme Shares to remain in the hands of the Trustees
throughout the Period of Retention;
(ii) not to assign, charge or otherwise dispose of the beneficial
interest in his Scheme Shares during that period;
(iii) if he directs the Trustees to transfer the ownership of his Scheme
Shares to him at any time before the Release Date, to pay to the
Trustees before the transfer takes place a sum equal to income tax
at the standard rate on the Appropriate Percentage of the Locked-in
Value of the Scheme Shares at the time of direction; and
(iv) not to direct the Trustees to dispose of his Shares at any time
before the Release Date in any other way except by sale for the
best consideration in money that can reasonably be obtained at the
time of sale.
3. ALLOCATION OF FUNDS, ACQUISITION AND APPROPRIATION OF SHARES
3.1 Each Participating Company shall on or before each Appropriation Date (or
at such other time as shall be agreed by the Participating Company and the
Trustees) pay to the Trustees the aggregate of the amounts due following
the completion and return of contracts in accordance with Rule 2 by such
Eligible Employees employed by it.
3.2 As soon as reasonably practicable after the receipt from the Participating
Companies of the amounts referred to in Rule 3.1 above the Trustees will
apply the aggregate of such amounts in the acquisition of Shares for
appropriation to such Eligible Employees. The Shares so acquired for
appropriation shall be appropriated, as soon as reasonably practical after
the shares have been acquired, to each such Eligible Employee on the basis
that the aggregate Initial Market Value of the Shares appropriated to him
is as nearly as possible equal to the amount of his Entitlement that has
been paid to
the Trustees. The aggregate Initial Market Value of shares that may be
appropriated to any one Participant in any one Year of Assessment shall not
exceed the amount, for the time being, specified in paragraph 3(4) of Part
2 of Schedule 11 of the Act.
3.3 The Entitlement of each Eligible Employee under the Scheme shall be such
amount as the Directors shall determine expressed as:
(A) (i) a proportion of Basic Salary, and / or
(ii) a proportion of Basic Salary for each Period of Service, and
/ or
(iii) a fixed amount determined by the Directors, and / or
(iv) a fixed amount determined by the Directors for each Period of
Service and / or
(v) an amount as agreed in writing with the Revenue Commissioners
provided that in any Year of Assessment the basis of calculation of
Entitlement of each Eligible Employee shall be the same.
(In the context of this Rule "Period of Service" shall mean a
complete year, or such other complete period as may from time to
time be specified, of continuous service as an employee of a
Participating Company.)
(B) In any Year of Assessment in which there is an entitlement under
(A) above and that entitlement or any part thereof is taken in
Shares, the Board may in their absolute discretion offer
Participants the opportunity to forego salary up to the amount of
his entitlement under (A) above taken in Shares provided that the
amount forgone does not exceed 7 1/2 % of Basic Salary and provided
further that the aggregate of the Initial Market Values of the
Shares acquired under (A) and (B) does not exceed the amount, for
the time being, specified in paragraph 3(4) of Part 2 of Schedule
11 of the Act.
3.4 Where the Trustees are unable to purchase sufficient Shares to satisfy in
full appropriations pursuant to Rule 3.2 the Trustees shall reduce the
appropriation pro-rata.
3.5 In the event that a portion of the Shares acquired by the Trustees carries
any right not attaching to all such Shares the Trustees shall appropriate
those Shares among Eligible Employees as nearly as possible in the same
proportions as provided in Rule 3.2 above.
3.6 As soon as practicable after any Scheme Shares have been appropriated by
the Trustees to a Participant in accordance with the Rules, the Trustees
shall give the Participant notice in writing of the appropriation
specifying the number and description of Scheme Shares appropriated, their
Initial Market Value and the date on which such Scheme Shares were
appropriated.
3.7 The Trustees shall sell any Shares which they do not appropriate on an
Appropriation Date under this Rule within eighteen months of the date of
acquisition for the best consideration in money reasonably obtainable at
the time and retain the net proceeds of sale in accordance with Clause 14
of the Trust Deed.
3.8 If at any time following the date on which the Trustees are entered on the
Parent Company's register of members, Shares have not for the time being
been appropriated to any Participant and the Trustees shall in respect of
such Shares:-
3.8.1 receive any dividends or other distributions; or
3.8.2 become entitled to any other rights to be allotted securities in
the Parent Company (other than an issue to capitalisation shares of
the same class as Shares then held by the Trustees pending an
appropriation which capitalisation shares shall be retained by the
Trustees and shall form part of the Shares to be appropriated)
then the Trustees shall, in the case of Rule 3.8.2 above and of any
distribution not consisting of cash use their best endeavours to
sell the rights or distributions concerned for the best
consideration in money reasonably obtainable at the time and in the
case of Rule 3.8.1 and Rule 3.8.2. shall retain the monies
concerned in the Residual Fund.
3.9 No Shares shall be appropriated to any Eligible Employee after 18 years
from the date of death of the last survivor of the issue living on the date
of the Trust Deed of his late Britannic Majesty King George V.
4. LIMITATIONS
The maximum number of Shares that may be appropriated to any one Participant in
any Year of Assessment shall be determined by legislation for the time being in
force as stated in Schedule 11 of the Act.
5. CONDITIONS OF RETENTION AND DISPOSAL
5.1 Scheme Shares shall subject as hereinafter provided in this Rule be held by
the Trustees until the date on which the Participant concerned directs the
Trustees:
5.1.1 to sell Scheme Shares, or
5.1.2 to transfer the legal ownership of Scheme Shares to himself.
Provided that as soon as it may be practical following the Release Date
applicable thereto the Trustees will transfer the legal ownership of the
Scheme Shares to the Participant.
5.2 A Participant shall not be entitled to give any direction under Rule 5.1
above or to assign or charge or otherwise dispose of his
beneficial interest in any Scheme Shares before the end of the Period of
Retention applicable to such Scheme Shares except in the circumstances
mentioned in section 511(6)(a), (b) or (c) of the Act.
5.3 Subject to Rule 5.2 above, the Trustees shall disregard any direction given
in respect of the disposal or transfer of a Participant's Scheme Shares
before the end of the Period of Retention and shall not be required or
bound to act in accordance therewith if to their knowledge such Participant
is or would following implementation of such direction be in breach of his
obligations in respect of such Scheme Shares under Rule 5.2 above.
6. ISSUE OR REORGANISATION
6.1 A Participant shall not be prevented by Rule 5 above from:
6.1.1 directing the Trustees to accept an offer for any of his Shares
(hereinafter referred to as "the Original Shares") if the
acceptance or agreement will result in a new holding, within the
meaning of section 584 of the Act, being equated with the Original
Shares for the purposes of capital gains tax, or
6.1.2 directing the Trustees to agree to a transaction affecting his
Shares or such of them as are of a particular class if the
transaction would be entered into pursuant to a compromise,
arrangement or scheme applicable to or affecting:
(i) all the ordinary share capital of the Parent Company or, as
the case may be, all the Shares of the class in question; or
(ii) all the Shares, or Shares of the class in question, held by a
class of shareholders identified otherwise than by reference
to their employment or their participation in this Scheme.
6.1.3 directing the Trustees to accept an offer of cash, with or without
other assets, for his Shares if the offer forms part of a general
offer made to holders of shares of the same class as his or of
shares in the Parent Company and which is made in the first
instance on a condition such that if it is satisfied the person
making the offer will have control of the Parent Company within the
meaning of section 11 of the Act.
6.1.4 agreeing after the Retention Period to sell the beneficial interest
in his Shares to the Trustees for the same consideration as in
accordance with Rule 2.4 (iv) above would be required to be
obtained for the Shares themselves.
6.2 In the event of an offer being made or a transaction being proposed in any
of the circumstances described in Rule 6.1.1, 6.1.2 or 6.1.3 the Trustees
shall forthwith notify each Participant thereof and shall act in accordance
with the instructions of the Participant in dealing with his Scheme Shares
and in the absence of any such instructions no action shall be taken.
6.3 In the event of the Parent Company proposing to make a rights issue in
respect of any class of its share capital which includes Shares held on
behalf of Participants, the Trustees shall immediately on receipt of the
offer from the Parent Company, notify each Participant of the following
options, if contained in the offer, in respect of the Shares held by the
Trustees on his behalf:
6.3.1 to instruct the Trustees to exercise the rights in respect of all
or any of his Scheme Shares provided that such instruction is
accompanied by payment in cash of the amount necessary to exercise
such rights; or
6.3.2 to instruct the Trustees to exercise the rights in respect of some
only of his Scheme Shares and to dispose of the rights nil paid in
respect of the remainder and either:
(i) to pay to the Trustees any amount in excess of the disposal
proceeds necessary to exercise such rights; or
(ii) to instruct the Trustees to pay to him any amount of the
disposal proceeds in excess of the amount necessary to
exercise such rights; or
6.3.3 to instruct the Trustees to dispose of the rights nil paid in
respect of all or any of his Scheme Shares and pay the proceeds to
him.
6.4 The Participant shall instruct the Trustees accordingly within any period
of time specified by the Trustees and shall, if appropriate, pay to the
Trustees in cash any amounts necessary to carry out such instructions. The
Trustees shall, subject to receipt of the cash as aforesaid, carry out the
instructions of the Participants within the time allowed by the Parent
Company for the exercise of the rights. If a Participant shall fail to give
any direction to and shall not otherwise have authorised the Trustees, no
action shall be taken in respect of the rights associated with the Shares
held on behalf of that particular Participant.
6.5 Any New Shares allocated to the Trustees pursuant to Rule 6.2 and Rule 6.3
or on a capitalisation issue shall be deemed to have been appropriated to a
Participant on the Appropriation Date of the Shares in respect of which
they were allocated.
7. PAYMENTS AND TRANSFERS TO PARTICIPANTS
7.1 If any amount falls to be paid to a Participant prior to the Release Date
in respect of his Scheme Shares being:
7.1.1 the proceeds of a sale of Scheme Shares pursuant to a direction
given by the Participant under Rule 5.1.1; or
7.1.2 a Capital Receipt,
the Trustees shall pay such amount to the Participant.
7.2 If a Participant directs the Trustees to transfer the ownership of any
Scheme Shares to himself pursuant to Rule 5.1.2 before their Release Date,
he shall pay to the Trustees, before the transfer takes place, a sum equal
to income tax at the standard rate on the Appropriate Percentage of the
Locked-in Value of the Scheme Shares at the time of the direction.
7.3 If, following a company reconstruction as defined in section 514 of the
Act, the Trustees are allotted any shares or other securities which are not
New Shares, they shall forthwith transfer the same to the Participant.
7.4 Any stamp duty involved in any transfer of Scheme Shares or other shares or
securities by the Trustees into the name of the Participant concerned shall
be payable in the case of:
7.4.1 a transfer as referred to in Rule 5.1.2;
7.4.2 a transfer following the death of a Participant; or
7.4.3 a transfer as referred to in Rule 7.3
by the Trustees out of the Residual Fund or in the case of a deficiency out
of funds made available for the purpose by the Company and, in any other
case, shall be payable by the Participant concerned.
8. REPURCHASE BY TRUSTEES
8.1 At the time a Participant directs the Trustees to dispose of any Scheme
Shares, the Trustees may offer to purchase the beneficial interest in such
Scheme Shares from the Participant at the best consideration in money that
can reasonably be obtained at the time of the sale.
8.2 If, at the time of the proposed purchase of Scheme Shares under Rule 8.1,
the Trustees do not have sufficient funds to purchase such Scheme Shares,
they may apply to the Company for such funds. If any funds are so provided
by the Company they shall reduce the liability of the Company in respect of
the payment to be made pursuant to Rule 3 in respect of the next
Appropriation Date.
8.3 The Trustees shall hold any Shares purchased pursuant to Rule 8.1 above
under trust for appropriation to Eligible Employees employed by the Company
that provided the funds used in the purchase of such Shares subject to Rule
3.7.
9. PAYMENT OF DIVIDENDS
Subject to the provisions of Clause 5.3 of the Trust Deed:
9.1 Any dividends paid by the Parent Company to the Trustees in respect of
Scheme Shares (less any tax withheld) shall be forwarded to the
Participants on whose behalf the Trustees hold such Scheme Shares together
with particulars of the related tax credit or tax withheld (before the end
of the tax year in which they were paid).
9.2 Any dividends received by the Trustees during the period from the date of
their acquisition of Shares to the Appropriation Date shall be dealt with
by the Trustees in accordance with Clause 14 of the Trust Deed.
10. VOTING RIGHTS
Participants have no right to attend or vote at a general meeting of the Parent
Company. The voting rights in respect of the Scheme Shares shall, on a poll, be
exercised only in accordance with any directions in writing by the Participants
concerned to the Trustees. In the absence of any such direction, the Trustees
shall abstain from voting. The Trustees shall not be obliged to demand or join
in demanding a poll. Neither the Company nor the Trustees shall have an
obligation to furnish copies of literature provided to holders of shares.
11. RIGHTS OF EMPLOYEES
Participation in the Scheme by a Participant is a matter entirely separate from
any pension right or entitlement he may have and from his terms and conditions
of employment and participation in this Scheme shall in no respect whatever
affect in any way a Participant's pension rights and entitlements or terms or
conditions of employment and in particular (but without limiting the generality
of the foregoing words) any Participant who leaves the employment of a
Participating Company shall not be entitled to any compensation for any loss of
any right or benefit or prospective right or benefit under the Scheme which he
might otherwise have enjoyed whether such compensation is claimed by way of
damages for wrongful dismissal or other breach of contract or by way of
compensation for loss of office or otherwise howsoever.
12. DUTY TO ACCOUNT FOR TAX
12.1 When the Trustees receive from a Participant who has directed them to
transfer the ownership of his Scheme Shares to him at any time before the
Release Date the sum calculated in accordance with Rule 7.2 above, that sum
shall be accounted for to the Revenue Commissioners in accordance with
section 516 of the Act.
12.2 The Trustees shall keep records of all sums received from Participants
under Rule 12.1.
12.3 The Trustees shall inform each Participant in writing of any facts known to
them which are relevant to determining the liability (if any) of that
Participant to Irish income tax under Schedule E.
13. ERRORS AND OMISSIONS
If as a result of an error or omission any Shares to which a Participant is
entitled pursuant to these Rules are not appropriated to him in accordance with
Rule 3.2, the Company, and the Trustees shall do all such acts and things as may
be agreed in writing with the Revenue Commissioners to enable the Trustees to
appropriate to the Participant the Shares necessary to put him in a position he
would have been in but for such want of appropriation and agree, where relevant,
the Initial Market Value attributable to such Shares notwithstanding that such
actions may fall outside the time limits contemplated by or otherwise conflict
with the other provisions of the Rules provided always that the Trustees shall
not be obliged to incur any liability (whether actual or contingent) without
being funded or indemnified to their satisfaction.
14. NOTICES
14.1 All notices to be given to a Participant under the Scheme shall be in
writing and shall either be delivered to the Participant at his place of
work or be sent by post to the address shown on the records of the Trustees
or displayed on a noticeboard at his place of work.
14.2 Any notice or document delivered or displayed in the manner described in
Rule 14.1 shall be deemed for all purposes to have been sufficiently served
on the Participant and all persons claiming through or under such
Participant and accordingly service in the
manner aforesaid shall operate to exonerate the Trustees from all or any
liability for the non-receipt by a Participant or other person as aforesaid
of any such notice or document.
14.3 To be valid any direction to the Trustees in respect of a Participant's
Scheme Shares must be given in writing by or on behalf of such Participant
and shall be effective only when it is received by the Trustees.
14.4 A direction once duly given and received as mentioned in Rule 14.3 and
subject to Rule 5.3 shall be carried out by the Trustees as soon as
practicable in accordance with its terms unless prior to their acting in
respect thereof the Trustees receive written notice from the Participant
revoking the direction. Unless received by the Trustees the Trustees shall
incur no liability to a Participant if they act or fail to act upon a
direction or revocation which purports to have been duly given as
aforesaid.
14.5 Any notice or document sent by post as aforesaid shall be deemed to have
been received on the expiry of 72 hours from the time at which it was
posted.
15. MISCELLANEOUS
If any matter arises on or in connection with this Scheme or its operation for
which specific provision is not made in the Rules such matter shall be resolved,
dealt with or provided for in such manner as the Directors and the Trustees
shall in their absolute discretion consider appropriate having taken into
account the respective interests of the Company and of the Participants and the
requirements of the Revenue Commissioners.
THIS TRUST DEED is made the day of 2003
BETWEEN
(1) Prumerica Systems Ireland Limited whose registered office is situated at
Letterkenny Office Park, Windyhall, Letterkenny, Co. Donegal (hereinafter
called "the Company") of the one part; and
(2) Mercer Trustees Limited whose registered office is situated at Oyster
Point, Temple Road, Blackrock, Co. Dublin (hereinafter called "the
Trustees" which expression shall include the trustee or trustees for the
time being hereof) of the other part.
WHEREAS:
(A) This Trust Deed is supplemental to a resolution of the Board of Directors
of the Company passed on the day of 2003 whereby the Directors
determined to establish the Prumerica Systems Ireland Share Participation
Scheme (hereinafter called "the Scheme") as an employees' share scheme for
approval by the Revenue Commissioners in accordance with Chapter 1 of Part
17 and Schedule 11 of the Taxes Consolidation Act 1997 ("the Act").
(B) In this Trust Deed, unless the context otherwise requires, words and
expressions defined in the Rules shall bear the same meanings and the
provisions of the Rules set out in the Schedule hereto shall be deemed to
be incorporated herein.
(C) The Company is ultimately owned and controlled by the Parent Company
(within the meaning of that expression contained in Section 432 of the
Act).
(D) The Trustees have agreed to act as the first trustees of the Scheme.
NOW THIS TRUST DEED WITNESSETH and it is hereby declared and agreed as follows:-
1. PARTICIPATING COMPANY CONTRIBUTIONS
1.1 Each Participating Company shall pay to the Trustees the amount due from it
pursuant to Rule 3 for the purpose of the acquisition of Shares by the
Trustees in accordance with the Trust Deed and Rules as set out in the
First Schedule hereto, together with any other amount required to cover any
costs, charges and expenses incurred in such acquisition and any other
expenses and charges incurred by the Trustees in the operation of the
Scheme.
1.2 Each Participating Company shall provide the Trustees with all information
which is necessary for the purposes of the Scheme and the Trustees shall be
entitled to rely on such information in good faith without further enquiry.
1.3 Subject as hereinafter provided the Trustees hereby covenant with each
Participating Company to apply such sums received for that purpose in the
acquisition of Shares in accordance with the Rules and to hold the same
once appropriated under trust for the respective Participants entitled
thereto.
1.4 The Trustees shall hold:
1.4.1 any unutilised cash balance arising under paragraph 1.3 hereof; and
1.4.2 any income therefrom
to be applied in accordance with Clause 14 hereof.
2. DECLARATION OF TRUST
The Trustees shall hold Scheme Shares upon trust for the benefit of the
Participants to whom Scheme Shares have been appropriated in accordance with the
Rules, provided always that the Trustees:
2.1 shall not dispose of any Scheme Shares whether by transfer to a Participant
or otherwise before the end of the Period of Retention applicable thereto
except in the circumstances mentioned in Section 511(6)(a), (b) or (c) of
the Act;
2.2 shall not dispose of any Scheme Shares after the end of the Period of
Retention (but before the Release Date) applicable thereto except pursuant
to Rule 5.1 nor in such a way that such a transaction would involve a
breach of that Participant's obligations under Section 511(4)(c) or (d) of
the Act; and
2.3 shall deal with any right conferred in respect of Scheme Shares to be
allotted other shares, securities or rights of any description only in
accordance with Paragraph 17(b) of Schedule 11 to the Act and as directed
by or on behalf of the Participant or any person in whom the beneficial
interest in his shares is for the time being vested.
3. DISTRIBUTION OF TRUST FUNDS
Subject to any such direction as is referred to in Section 513(3) of the Act,
the Trustees shall pay over to a Participant any money or money's worth received
by them in respect of or by reference to any of his Scheme Shares other than
money consisting of a sum referred to in Section 511(4)(c) of the Act or
money's worth consisting of New Shares within the meaning of Section 514 of the
Act.
4. APPROPRIATION OF SCHEME SHARES
As soon as practicable after any Scheme Shares have been appropriated to a
Participant the Trustees shall give him notice in writing of the appropriation:
4.1 specifying the number and description of those Shares; and
4.2 stating their Initial Market value and their Appropriation Date.
5. MAINTENANCE OF RECORDS
The Trustees shall prepare and keep all such accounts and records as may be
required for the purpose of the Scheme and may, as agreed between the Trustees
and the Company, submit accounts to the Company and the Company may cause such
accounts to be made up and audited by qualified accountants. In particular the
Trustees shall:
5.1 maintain such records as may be necessary to enable them to carry out their
obligations under Chapter 1 of Part 17 of the Act;
5.2 inform a Participant who becomes liable to income tax under Schedule E in
relation to the operation of the Scheme of any facts of which they are
aware relevant to the determination of that liability; and
5.3 be liable for any liability to tax properly incurred by the Trustees in the
course of the operation of the Scheme.
6. PARTICIPATING COMPANIES
The Directors may at any time:
6.1 direct that any Subsidiary, not being a party to the Trust Deed, but
otherwise eligible to be a Participating Company, shall, upon entering into
a deed supplemental hereto in such form as the Directors and the Trustees
shall require, become bound by the provisions hereof; or
6.2 by deed supplemental hereto, to which the Trustees shall be a party,
declare that any Participating Company shall cease to be bound by the
provisions hereof.
7. REPLACEMENT OF COMPANY/PARENT COMPANY
7.1 In any of the following events:-
7.1.1 If the Company shall cease to carry on business and another body
corporate person or firm (whether in contemplation of or after such
cessation of business) enters into an agreement with the Trustees
to perform the obligations of the Company under the Trust Deed and
the Rules; or
7.1.2 If the business or a part of the business of the Company is
acquired by or vested in any other body corporate person or firm
and such other body corporate person or firm enters into an
agreement with the Trustees or is bound by virtue of or pursuant to
any statutory provision or instrument made thereunder or any order
of a Court or otherwise to perform the said obligations; or
7.1.3 If the Company shall be dissolved by virtue of or pursuant to any
statutory provision or any order of the Court made thereunder or
otherwise and another body corporate person or firm is bound by
virtue of or pursuant to any statutory provision or any order of
the Court made thereunder or otherwise to perform the said
obligations; or
7.1.4 If the Company shall amalgamate or enter into any arrangement
having the effect of amalgamation with any other body corporate,
person or firm or if the Company desires to be discharged of its
duties as the Company and any other body corporate, person or firm
enters into an agreement with the Trustees to perform the said
obligations;
then in any such event by deed supplemental hereto in such form as the
Company and the Trustees shall require the Company shall be thereby
released from all the said obligations and such other body corporate person
or firm as aforesaid shall be deemed to be substituted for the Company as
the person liable to perform the said obligations and the Trust Deed and
the Rules shall henceforth have effect as if such other body corporate
person or firm had been a party to and had executed the Trust Deed in place
of the Company and as if the reference to the Company in the Trust Deed and
in the Rules were references to such other body corporate person or firm.
7.2 If the Parent Company divests itself of its shareholding in the Company and
that shareholding is acquired by or vested in any other body corporate
person or firm, the Company and the Trustees may amend the definition of
"Parent Company" in Rule 1 of the Rules in accordance with Clause 21
hereof.
8. TRUSTEE LIABILITY AND INDEMNITY
8.1 The Trustees shall not be liable to satisfy any monetary obligations under
the Scheme (including but without prejudice to the generality
of the foregoing any monetary obligations to Participants) beyond the sums
of money (including income) from time to time in their hands or under their
control as Trustees and properly applicable for that purpose.
8.2 No Trustee for the time being of the Scheme and no director or employee of
any corporate trustee shall be responsible, chargeable or liable in any
manner whatsoever for or in respect of any loss of or any depreciation in
or default upon any of the investments securities stocks or policies in or
upon which any part of the Scheme may at any time be invested or for any
delay which may occur from whatever cause in the investment of any moneys
belonging thereto or for the safety of any securities or documents of title
deposited by the Trustees for safe custody or for the exercise of any
discretionary power vested in the Trustees by the Trust Deed (including any
act or omission by any committee appointed by the Trustees) or by reason of
any other matter or thing except fraud or deliberate culpable disregard of
the interests of all or of any of the beneficiaries under the Scheme.
8.3 Each of the Trustees and each director of any corporate trustee shall be
indemnified by the Participating Companies against all liabilities incurred
by such Trustee in the execution of the trusts and in the management and
administration of the Scheme other than liabilities arising as a
consequence of fraud or deliberate and culpable disregard of the interests
of all or any of the beneficiaries under the Scheme or (in the case of any
Trustee who is engaged in the business of providing a trustee service for a
fee) negligence.
9. COSTS AND EXPENSES
9.1 The costs, charges, expenses and other liabilities of the establishment of
the Scheme and of the preparation and execution of the Trust Deed and the
Rules shall be borne by the Company or,
if the Directors otherwise determine, by the Participating Companies.
9.2 All costs, charges, expenses and other liabilities of, and incidental to,
the administration, operation and determination of the Scheme (including
any remuneration of the Trustees and any tax or duty for which the Trustees
may be accountable to the Revenue Commissioners arising from or in
connection with the Scheme) shall be borne by the Participating Companies
in proportion to the Scheme Shares for the time being appropriated to their
respective Participants or otherwise as the Directors may determine if and
to the extent that the same cannot properly be paid by the Trustees out of
funds in their hands available for the purpose.
10. TRUSTEES' POWERS AND DISCRETIONS
The Trustees shall have the following powers and discretions in addition to
those conferred upon them by general law:
10.1 full power and discretion to agree with the Company all matters relating to
the operation and administration of the trusts of this Trust Deed and so
that no person claiming any interest under such trusts shall be entitled to
question the legality and correctness of any arrangement or agreement made
between the Company and the Trustees in relation to such operation and
administration;
10.2 power to arrange for the Company to account to the Revenue Commissioners or
other authority concerned for any amounts received by the Trustees pursuant
to the Scheme and required to be paid to the Revenue Commissioners in
respect of income tax or any other payment required by statute; and
10.3 power by resolution:
10.3.1 to authorise the manner in which cheques and other documents shall
be signed on their behalf; and
10.3.2 to delegate the signing of such cheques and documents to such
persons as they shall think fit.
11. DIRECTIONS TO TRUSTEES
The Trustees shall comply with any reasonable directions given by the Directors
pursuant to the Trust Deed and the Rules and shall not be under any liability in
respect thereof to any Participating Company. In no event may the Directors
direct the Trustees to distribute any Share or Scheme Share to any Participating
Company. Each Participating Company agrees to indemnify the Trustees in respect
of any liability arising to any Participant as a result of the Trustees
complying with any directions given by the Directors pursuant to this Trust Deed
and the Rules.
12. INDEPENDENCE OF THE TRUSTEES
The Trustees shall administer the Scheme impartially and in strict accordance
with the Trust Deed and the Rules. The Company hereby declares and confirms the
independence of the Trustees in the exercise of all their functions and
obligations under the Scheme and undertakes that it shall not seek to influence
them in any manner, save in such manner as specifically provided for in the
Rules or the Trust Deed.
13. RETIREMENT, REMOVAL AND APPOINTMENT OF TRUSTEES
13.1 Any Trustee may retire from the trusts hereby constituted at any time by
giving to the Company and the remaining Trustees (if any) not less than
three months' written notice and the retiring Trustee shall upon the expiry
of such notice cease to be a Trustee and shall not be responsible for any
costs occasioned by such retirement and cessation. In the event that any
Trustee who wishes to retire is the sole Trustee of the Scheme or in the
event that upon such resignation taking effect there would be only one
Trustee of the Scheme and that Trustee is not a body corporate the Company
shall appoint a new Trustee on or before the date when such retirement is
to take effect.
13.2 Where a body corporate is acting as sole Trustee the Company may by
resolution of the Directors, with the prior written approval of the Revenue
Commissioners, remove that Trustee from office and upon the passing of such
resolution the removal shall be immediately effective. Alternatively the
Company may by deed remove a Trustee from office.
13.3 The Company may by deed appoint a new Trustee or Trustees in place of any
Trustee or Trustees who retire or are removed from office under paragraph
13.1 or 13.2 hereof and may by deed appoint an additional Trustee or
Trustees provided that the Company shall by deed appoint a Trustee or
Trustees in place of a sole Trustee who retires or is removed from office
under paragraph 13.1 or 13.2 hereof.
13.4 The minimum number of Trustees shall be three unless a body corporate is
appointed a Trustee in which case that body corporate may be the sole
Trustee or may act jointly with one or more individuals who are appointed
as Trustees of the Scheme.
13.5 If the Company shall not appoint a new Trustee or new Trustees with effect
from the date of expiry of the notice referred to in paragraph 13.1 hereof,
the Trustees may exercise such power by executing an instrument in writing
signed by them as is necessary to appoint a new Trustee or new Trustees.
13.6 The Trustees (and if more than one, each of them) shall be resident in the
Republic of Ireland for the purposes of the Act.
14. THE RESIDUAL FUND
The Trustees shall hold and apply the Residual Fund as follows:-
14.1 in paying their costs, charges and expenses incurred in the operation of
the Scheme as they in their absolute discretion shall determine; and
14.2 subject thereto, if so instructed by the Directors, to acquire Shares in
accordance with Rule 3 and to hold the same once appropriated in accordance
with the provisions of the Scheme or in the case of Shares held as part of
the Residual Fund, to appropriate them in accordance with Rule 3; and
14.3 subject as aforesaid any moneys at any time which are not immediately
required to be applied by the Trustees in a particular manner may be placed
on deposit (either with or without interest at the discretion of the
Trustees) with any bank or other deposit taking institution in the Republic
of Ireland either with or without security as the Trustees may determine;
and
14.4 upon the determination of the Scheme and to the extent that the Residual
Fund has not been applied as aforesaid the Trustees shall sell any Shares
comprised in the Residual Fund for the best consideration in money
reasonably obtainable and shall pay or transfer the proceeds of such sale
together with any other moneys then comprised in the Residual Fund to any
Participating Companies in such proportion as the Trustees reasonably
determine.
15. TRUSTEE REMUNERATION FOR SERVICES
15.1 Any Trustee being an individual shall be entitled to receive and retain as
remuneration for his services hereunder such sum or sums as may from time
to time be agreed with the Company.
15.2 Any Trustee, being a solicitor, accountant, stockbroker or engaged in any
other profession or business, shall be entitled to be paid all reasonable
professional or proper charges for services rendered
including acts which such Trustee, not being engaged as aforesaid, could
have done personally.
15.3 Any Trustee, being a body corporate (whether or not a trust corporation),
may charge and be paid such reasonable remuneration or charges as shall
from time to time be agreed in writing between the Company and such body
corporate and any such body corporate (being a bank) shall be entitled
(without being liable to account for any profit or advantage so obtained)
to act as banker and perform any services in relation to the Scheme on the
same terms as would be made with a customer in the ordinary course of its
business as a banker.
16. TRUSTEES WHO ARE PARTICIPANTS
Any Trustee, otherwise eligible to be a Participant, may be so and may retain
for his absolute benefit all the interest to which he is entitled as a
Participant in any Scheme Shares acquired or received for him and any other
money or money's worth accruing to him as such and exercise all rights to which
he is entitled as a Participant.
17. TRUSTEES WHO ARE DIRECTORS
Any Trustee who shall be or become a Director or holder of any other office or
employment in the Company, may retain for his own absolute benefit any fees or
remuneration received by him in connection with such office or employment
notwithstanding that his appointment to or retention of such office or
employment may be directly or indirectly due to the exercise or non-exercise of
any votes in respect of any stock, shares or other securities in the Parent
Company held by the Trustees or other persons on their behalf under the trusts
of the Scheme.
18. TRUSTEES WHO OWN SHARES
No Trustee, nor any holding company of a corporate Trustee, nor any subsidiary
of such holding company, nor any director or officer of a body corporate acting
as Trustee shall be precluded from underwriting, purchasing, holding, dealing in
and disposing of any stock, shares or other securities whatsoever of any
Participating Company or any subsidiary or holding company thereof or any
subsidiary of any such holding company or from otherwise at any time contracting
or entering into any insurance, financial or other transactions with any such
company or being interested in any such transaction or accepting and holding the
trusteeship of any debenture stock or other securities of any such company
neither shall such Trustee, holding company, subsidiary, director or officer be
liable to account for any profit made by him thereby or in connection therewith.
19. TRUSTEES MEETINGS
19.1 In the event of the appointment of Trustees other than a body corporate as
sole Trustee:-
19.1.1 the Trustees may at any time but shall at least once in every year
meet together for the despatch of business and may adjourn and
otherwise regulate their meetings as they think fit and the
Trustees may elect one of their number to be chairman of their
meeting provided that in the event of equality of votes on the
election of a chairman he shall be chosen by lot;
19.1.2 all business brought before a meeting of the Trustees shall be
decided by a majority of the votes of the Trustees present and
voting thereon and, in the case of equality of votes, the chairman
of the meeting shall have a second or casting vote;
19.1.3 a resolution in writing signed by all of the Trustees shall be as
effectual as if it had been passed at a meeting of the
Trustees and may consist of one or more documents in similar form
each signed by one or more of the Trustees; and
19.1.4 two Trustees (or such other number agreed by the Trustees) present
at a meeting of the Trustees of which notice has been given to all
Trustees shall form a quorum.
19.2 The Trustees shall cause proper minutes to be kept and entered in a book
provided for the purpose of all their resolutions and proceedings and any
such minutes shall be signed by the chairman of the next meeting.
20. DEALING WITH TRUST MONIES
20.1 The Trustees may, without prejudice to their obligations under Section 516
of the Act, in any particular case or cases, decide not to commence or
pursue proceedings for the recovery of any moneys due to them from any
Participant and shall not be responsible for any loss incurred by their so
doing.
20.2 Valid and effectual receipts and discharges for any moneys or other
property payable, transferable, or deliverable to the Trustees or any of
them may be given by a Trustee who is a body corporate or by any one
Trustee to whom such duty may have been delegated pursuant to paragraph
20.4 hereof or by any person from time to time nominated by the Company and
authorised in writing for the purpose by all the Trustees.
20.3 The Trustees may from time to time appoint for the proper administration
and management of the Scheme such secretarial or executive officers or
staff or other persons as they consider desirable and as the Directors
shall approve on such terms as they think fit and a Trustee hereof being a
body corporate (whether or not a trust corporation) may act by its proper
officers and may by its
proper officers have and exercise all powers, trusts and discretions vested
in it hereunder.
20.4 The Trustees may from time to time in writing delegate any business and the
exercise of any of the duties imposed on them by the Scheme to any one or
more of their number.
20.5 The Trustees may employ and pay for the services of such registrars,
solicitors, accountants, bankers or other professional or business advisers
as they consider desirable to advise on any business to be done in
connection with the Scheme or for the proper administration and management
of the Scheme or otherwise in connection therewith.
20.6 The Trustees may at any time cause any part of the trust property to be
deposited for safekeeping with any one or more of the Trustees or any other
persons (including any company or corporation) on behalf of the Trustees
and may pay any expenses in connection therewith.
20.7 No Trustee shall be liable or responsible for any loss to the trust
property which may be occasioned as a result of the exercise of the
foregoing powers except to the extent that such loss arises as a result of
any fraud, wilful default or negligence on the part of such Trustee.
21. AMENDMENT OF TRUST DEED AND RULES
21.1 The Company with the consent of the Trustees may at any time and from time
to time by deed supplemental hereto modify, alter, amend or extend the
Scheme in any respect (such modification, alteration, amendment or
extension being referred to in this Clause as an "amendment") provided
that:
21.1.1 no amendment shall alter to the disadvantage of a Participant his
rights in respect of any Scheme Shares appropriated before the date
of such amendment;
21.1.2 no amendment shall be made which would or might infringe any rule
against perpetuities or which could result in the Scheme ceasing to
be an Approved Scheme;
21.1.3 no amendment shall take effect unless prior written approval of the
Revenue Commissioners to the Scheme as amended thereby shall have
first been obtained in accordance with paragraph 5(2) of Schedule
11 to the Act.
21.2 The Company may, by resolution, subject to sub-paragraph 21.1.2 of this
Clause and without otherwise obtaining the prior approval thereto of any
other person but after consulting the Trustees, modify or alter or amend
the Scheme in any way which may be necessary in order to secure the initial
approval of the Scheme by the Revenue Commissioners under Part 2 of
Schedule 11 to the Act or to maintain such approval.
22. TERMINATION OF TRUST
The Scheme and the trusts hereby created shall be determined on the earlier of
the following:-
22.1 the date on which the Directors resolve to terminate the Scheme which they
shall be entitled to do only on a date on which there are no Scheme Shares
or Shares held pursuant to this Trust Deed: or
22.2 the expiry of a period of twenty-one years after the death of the last
survivor of the issue living on the date hereof of his late Britannic
Majesty King George V.
23. DISPUTES
All disputes and differences arising out of the Scheme or otherwise in
connection therewith may be referred by the Trustees to arbitration pursuant to
the provisions of the Arbitration Acts 1954 and 1980 and any Participant so
affected shall submit to such arbitration.
24. GOVERNING LAW
This Trust Deed shall be governed by and construed in accordance with the law of
Ireland.
IN WITNESS WHEREOF this Trust Deed has been executed by the parties hereto the
day and year first herein written:
PRESENT when the common seal of
PRUMERICA SYSTEMS IRELAND LIMITED
was affixed hereto :-
________________________ Director
________________________ Director/Secretary
PRESENT when the common seal of
MERCER TRUSTEES LIMITED
was affixed hereto :-
________________________ Director
________________________ Director/Secretary