Exhibit 4.16
THIS SETTLEMENT known or referred to as the "VTL EMPLOYEE BENEFIT TRUST" is made
the 18th day of July two thousand and five
BETWEEN:
(1) VIATEL HOLDING (BERMUDA) LIMITED , Canon's Court, 22 Victoria Street,
Hamilton HM12, Bermuda (hereinafter called the "Settlor") AND
(2) EBT TRUSTEES LIMITED of Whiteley Chambers, Don Street, St Helier, Jersey,
JE4 9WG, Channel Islands (the "Original Trustee")
WHEREAS: the Settlor being desirous of making such irrevocable Settlement as is
hereinafter contained with a view to encouraging, motivating and retaining
employees by providing benefit (including benefit on termination of service by
death or disablement by accident occurring during service) has transferred or
delivered to the Original Trustee or otherwise placed under the control of the
Original Trustee the property specified in the Second Schedule hereto.
NOW THIS INSTRUMENT WITNESSETH as follows:
1. INTERPRETATION
In this Instrument wherever the context permits:
(1) The following words shall have the following meanings:
(a) "BENEFICIARIES" means all and any of the persons specified in
the Third Schedule hereto;
(b) "CHARITY" shall mean any trust foundation or company
established wholly and exclusively for purposes recognised as
charitable by the laws of the Island of Jersey and the word
"charitable" shall be construed accordingly;
(c) "COMPANY" means any body of persons corporate or unincorporate
(of whatsoever kind) incorporated or otherwise brought into
existence in any part of the world;
(d) "DEED" means an instrument in writing;
(e) "EMPLOYEE" means a person described in item 1 of the Third
Schedule hereto;
(f) "EXCLUDED PERSONS" means all and any of the persons specified
in the Fourth Schedule hereto;
(g) "INFANT" means any individual who has not attained the age of
eighteen notwithstanding that such individual may by and in
accordance with the law of his or her domicile be of full age,
and the expressions "minority" and "full age" shall be
construed accordingly;
(h) "PARTICIPATING COMPANY" shall have the meaning set out in
Clause 27 hereof;
(i) "PAYE" means income tax payable by deduction under Part 11 of
the Income Tax (Earnings and Pensions) Act 2003 of the United
Kingdom or
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regulations made in pursuance thereof or any other tax or duty
payable under any similar provision;
(j) "SOCIAL SECURITY CONTRIBUTIONS" means National Insurance
contributions (or any other social security contribution(s) enacted
to replace such National Insurance contributions from time to time)
payable in the United Kingdom;
(k) "PERSON" means any individual or any company;
(l) "THE PROPER LAW" means the law to the exclusive jurisdiction of
which the rights of all parties and the construction and effect of
each and every provision of this Settlement shall from time to time
be subject and by which such rights construction and effect shall be
construed and regulated;
(m) "THE REGULATIONS" means the regulations contained in the First
Schedule hereto;
(n) "SETTLEMENT" means the settlement created by these presents;
(o) "SUB-TRUST PROTECTOR" means the protector of the sub-trust appointed
by the specified beneficiary under the deed of appointment creating
a sub-trust under this Settlement;
(p) "SUPERANNUATION BENEFITS" means any pension lump sum or other
benefit which may be provided under Clause 4 hereof only in the
event of termination of service of any Beneficiary described in item
1 of the Third Schedule hereof by reason of his disablement by
accident occurring during his service or death by accident so
occurring;
(q) "THE TRUSTEES" means the Original Trustee or other trustee or
trustees for the time being hereof appointed under the terms of this
Settlement and for the avoidance of doubt any person may be
appointed as a sole trustee of this Settlement;
(r) "THE TRUST FUND" means:
(i) the property specified in the Second Schedule hereto;
(ii) all money investments or other property hereafter paid or
transferred by any person or persons (save as excepted by
Clause 3(1) hereof) to or so as to be under the control of and
(in either case) accepted by the Trustees as additions to the
Trust Fund;
(iii) all accumulations (if any) of income held as an accretion to
capital;
(iv) the money investments and property from time to time
representing the said money property and additions;
(s) "THE TRUST LAW" means the Trusts (Jersey) Law 1984 and any statutory
amendments or re-enactments thereof;
(t) "THE TRUST PERIOD" means such period as commences on the date hereof
and ends on whichever of the following dates shall first occur
namely:
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(i) the day on which shall expire the period of one hundred years
from the date of this Settlement;
(ii) such day (if any) as the Trustees may with the consent of the
Settlor appoint by deed (executed prior thereto and prior to
the date specified in sub-paragraph (i) of this paragraph) as
the date of termination of the Trust Period.
(2) In the interpretation and construction of each and every provision hereof:
(a) any adopted or legitimated person shall be treated as the child of
his adoptive or legitimative parents as the case may be and of no
other person;
(b) references to the issue of any person shall include the children and
remoter issue of such person through all degrees;
(c) words in the singular shall include the plural and words in the
plural shall include the singular;
(d) words denoting any gender shall include all genders;
(e) subject to any change in the Proper Law and as otherwise herein
provided the words used herein shall bear the meaning ascribed to
them by the Trust Law and the Interpretation (Jersey) Law 1954 and
any statutory amendments or re-enactments thereof;
(f) the headings and sub-headings to this Settlement are inserted only
for reference to the provisions hereof and shall not affect the
construction of such provisions;
(g) unless the context otherwise requires where this Settlement refers
to any enactment the reference is a reference to that enactment as
amended and includes a reference to that enactment as extended or
applied by or under any other enactment including any other
provision of that enactment.
2. PROPER LAW
This Settlement is established under the laws of the Island of Jersey and
subject and without prejudice to any transfer of the administration of the
trusts hereof to any change in the Proper Law and to any change in the law
of interpretation of this Settlement duly made according to the powers and
provisions hereinafter declared the Proper Law shall be the law of the
Island of Jersey which said Island shall be the forum for the
administration hereof.
3. DECLARATION OF TRUST OF ORIGINAL AND ADDITIONAL PROPERTY
(1) The Trustees shall stand possessed of the Trust Fund upon with and
subject to the trusts powers and provisions herein declared and
contained of and concerning the same and the Trustees shall be at
liberty at any time during the Trust Period to accept any money
investments or property of whatsoever nature and wheresoever situate
from any person (other than from any of the Beneficiaries) or by the
provisions of any other trust or otherwise to the intent that the
same shall be held by or on behalf of the Trustees as an accretion
to the Trust Fund and from and after the date of such acceptance the
Trustees shall hold the same accordingly PROVIDED ALWAYS
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that nothing in this clause shall prevent the Trustees from
purchasing investments or property from a Beneficiary at full market
value.
(2) This Settlement shall be known or referred to under the name or
reference first above stated or by such other name or reference as
the Trustees in their absolute discretion shall from time to time
think fit.
4. TRUSTS OF INCOME AND CAPITAL
Subject to Clause 15 hereof the Trustees shall stand possessed of the
Trust Fund and the income thereof upon the trusts and with and subject to
the powers following, that is to say:
(1) The Trustees shall subject to the provisions of sub-clause (5)
hereof to the extent that the income of the Trust Fund shall be
sufficient to do so pay all costs and expenses of and incidental to
carrying out the trusts of this Settlement (including costs and
expenses which would but for this provision be payable out of
capital) out of the income of the Trust Fund.
(2) The Trustees shall pay or apply the balance of such income and such
part (if any) of the capital of the Trust Fund as the Trustees with
the consent of the Settlor may think fit to or for the benefit of
all or any one or more exclusively of the others or other of the
Beneficiaries for the time being in existence and so that the
Trustees shall provide such Superannuation Benefits as they think
appropriate out of such income and capital and whether payable or
otherwise applied for the benefit of the Employee or any of that
Employee's related Beneficiaries in items 2 and 3 of the Third
Schedule hereto and on such terms as the Trustees shall think fit so
that the Trustees shall have such powers and discretions as are
available in respect of other benefit that may be provided under
this Settlement.
(3) During the Trust Period the Trustees may pay appropriate or apply
the whole or any part of the income of the Trust Fund to or for the
maintenance or otherwise for the benefit of all or such one or more
exclusive of the other or others of the Beneficiaries in such shares
and proportions if more than one and generally in such manner as the
Trustees shall with the prior or simultaneous written consent of the
Settlor from time to time in their absolute discretion think fit.
(4) The Trustees shall hold any income appropriated to any of the
Beneficiaries under the provisions of the preceding sub-clause upon
trust to pay or apply the same to or for the benefit of such
Beneficiary with power to declare in respect of the same such other
trusts (not exceeding the Trust Period) for the benefit of such
Beneficiary as the Trustees may in their absolute discretion
determine including, but without prejudice to the generality of the
foregoing, provisions for maintenance education or advancement or
for accumulation of income whether during minority or otherwise, and
with such discretionary trusts and powers exercisable by such
persons as the Trustees shall in their like discretion determine.
(5) Notwithstanding the foregoing discretionary trust the Trustees may
accumulate all or any part of the income of the Trust Fund remaining
after payment of the costs of and incidental to carrying out the
trusts of this Settlement by investing it and the resulting income
and holding the accumulations as an addition to the capital of the
Trust Fund.
(6) Wherever any payment by way of addition to the Trust Fund or
conferment of any benefit whether provided by the Trustees or any
other person or a benefit or payment deemed as arising by a
competent fiscal authority or treated as arising under relevant
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legislation results in any liability whether on the Trustees or any
other person to pay any Social Security Contributions, whether the
liability is that of the employer or employee or provider of the
benefit or payment, or any PAYE whereby the Trustees or an employer
or provider of the benefit or payment is required to account for
income or other taxes by payment of tax or deduction the Trustees
shall be obliged to pay all such taxes and contributions and make
all such deductions or withholdings or payments and account to the
relevant authority for the same notwithstanding that there may be no
liability so to do or that any liability to do so may not be
enforceable against them or that such payment may not in itself
result in any benefit to any of the Beneficiaries or may result in
an Excluded Person being released from any obligation to make such
payment AND so that payment shall be paid by the Trustees out of the
Trust Fund or the income thereof but to the extent that any PAYE or
Social Security Contribution would otherwise be a deduction from any
such addition or benefit that part shall be treated as deducted from
such addition or benefit.
(7) The provisions of sub-clause (6) are in addition to any provision of
this Settlement conferring upon the Trustees a power to pay duties
or taxes.
(8) At the end of the Trust Period the Trustees shall hold the Trust
Fund UPON TRUST as to both capital and income for all or such one or
more exclusive of the other or others of the Beneficiaries in such
shares and proportions if more than one and generally in such manner
as the Trustees shall prior to or at the end of the Trust Period in
their absolute discretion determine and in default of and subject to
such determination UPON TRUST for each Employee as shall then be
living in equal shares absolutely.
(9) Subject as aforesaid the Trustees shall hold the Trust Fund UPON
TRUST as to both capital and income for such charitable purposes as
the Trustees shall determine and in default of and subject to such
determination for charitable purposes generally.
5. POWERS OF APPOINTMENT AND ADVANCEMENT
Notwithstanding the trusts and powers hereinbefore declared and contained
but subject to Clauses 7 and 15 hereof the Trustees may at any time during
the Trust Period if in their absolute discretion they shall so think fit:
(1) Subject to the prior or simultaneous written consent of the Settlor
by any deed revocable during the Trust Period or irrevocable
appointment of such new or other trusts powers and provisions
governed by the law of any part of the world of and concerning the
Trust Fund or the income thereof or any part thereof for the benefit
of the Beneficiaries or any one or more of them exclusive of the
other or others at such age or time or respective ages or times and
in such shares and proportions and subject to such powers of
appointment vested in any person and such provisions for maintenance
education or advancement or for accumulation of income or forfeiture
in the event of bankruptcy and otherwise at the discretion of any
person and with such discretionary trusts and powers exercisable by
such person and generally in such manner as the Trustees may think
fit for the benefit of such Beneficiaries or any one or more of them
as aforesaid and for the purpose of giving effect to any such
appointment by the same deed revoke all or any of the trusts powers
and provisions herein contained with respect to the Trust Fund or
the part thereof to which such appointment relates and so that in
the event of any such appointment the Trustees shall thenceforward
hold the Trust Fund or the part thereof to which such appointment
relates upon and subject to the trusts powers and provisions so
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appointed in substitution for any of the trusts powers and
provisions hereof so revoked as aforesaid and in priority to the
other trusts powers and provisions herein declared and contained and
in any appointment under the foregoing power the Trustees may
delegate to any person all or any of the powers and discretions by
this Settlement or by law vested in the Trustees.
(2) Subject to the prior or simultaneous written consent of the Settlor
raise the whole or any part of the capital of the Trust Fund and
apply the same to or for the benefit of all or any one or more
exclusive of the other or others of the Beneficiaries generally in
such manner as the Trustees shall in their like discretion think
fit.
(3) Subject to the prior or simultaneous written consent of the Settlor
pay or transfer the whole or any part of the capital or income of
the Trust Fund to the trustees for the time being of any other trust
wheresoever established or existing (whether governed by the law of
the Island of Jersey or by the law of any other state or territory)
under which any one or more of the Beneficiaries are interested
whether as a discretionary object or otherwise notwithstanding that
such other trust may also contain trusts powers and provisions
(discretionary or otherwise) in favour of some other person or
objects if the Trustees shall in their absolute discretion consider
such payment to be for the benefit of such one or more of the
Beneficiaries.
(4) Subject to the prior or simultaneous written consent of the Settlor
settle capital on all or any one or more of the Beneficiaries and
any settlement made by the Trustees under this present power upon or
for the benefit of any one or more of the Beneficiaries as aforesaid
may be created in and under the law of any part of the world (being
a part of the world the local law whereof recognises settlements of
the kind proposed to be made) and may contain such trusts powers and
provisions whatsoever (including trusts powers and provisions to be
exercised at the discretion of any person) as the Trustees shall
think proper for the benefit of such Beneficiaries.
(5) Apply the whole or any part of the capital or income of the Trust
Fund in or towards the payment or discharge of any tax duty or
fiscal imposition whatsoever levied or imposed in any part of the
world upon the trustees of or otherwise in respect of any other
trust in which the Beneficiaries or any one or more of them shall be
interested wherever such trustees shall be resident and wherever
such trust is established or existing and whether governed by the
law of the Island of Jersey or by the law of any other state or
territory.
(6) Subject to the prior or simultaneous written consent of the Settlor
grant in favour of any one or more of the Beneficiaries any options
or other contractual arrangements to acquire (whether or not at
market value) any shares, stock, debentures, debenture stock, bonds
or other securities whatever which may comprise or form part of the
Trust Fund or make payments or distributions (whether of cash or any
assets forming part of the Trust Fund) in consequence or otherwise
in connection with the termination of employment (caused by reason
of the disablement by accident occurring during service or the death
by accident so occurring but for no other reason) of any
Beneficiary.
(7) Pay or arrange for the payment, out of the Trust Fund, of any
premiums on any policy of assurance or insurance upon the life of
any Beneficiary being a present or former employee of the Settlor or
a Participating Company (whether such policy be whole life or
endowment or a policy to cover death by accident) or against any
long or short term disability or loss of earnings (howsoever caused)
of any such person or for the health care liabilities or expenses of
any of the Beneficiaries and the Trustees shall
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have power to direct the manner and recipients of any payments made
by insurers pursuant to any such policies.
6. PROVISIONS RELEVANT TO CLAUSE 5
The following provisions shall apply in relation to Clause 5 hereof:
(1) For the purposes of Clause 5 hereof the word "trust" shall mean any
trust, foundation, anstalt or other similar juridical entity
(whether or not having a separate legal personality) created by any
settlement declaration of trust, will, codicil or other instrument
or document under the law in force in any part of the world and a
person shall be deemed to be interested under a trust if any capital
or income comprised in the trust is or may become liable to be
transferred paid applied or appointed to him or for his benefit
either pursuant to the terms of the trust or in consequence of an
exercise of any power or discretion thereby conferred on any person.
(2) No power conferred by Clause 5 hereof:
(a) shall be exercised in such a way as to cause or require the
Trust Fund or any part thereof to be held in trust for a
period exceeding the Trust Period; or
(b) shall authorise any payment or transfer or advance to the
trustees of another trust if any of the Excluded Persons would
or might be or become beneficiaries or able to benefit under
or by virtue of such other trust in any circumstances save
those contemplated by sub-clause (6) of Clause 4 hereof.
(3) Upon the payment or transfer pursuant to Clause 5 hereof of any
money or property to the trustees of any other trust the Trustees
hereof shall not be bound to see to the further application of such
money or property.
(4) The Settlor may with the consent of the Trustees amend (whether by
alteration, deletion or addition) any provision of Clause 5 hereof
or any other provision of this Settlement in its application to all
or any specified assets held pursuant to this Settlement by a
written instrument executed by the Trustees and the Settlor.
Notwithstanding the foregoing, no such amendment shall make this
Settlement revocable, each such amendment shall comply with Clause
6(2) hereof but any such amendment shall have effect from such time
as may be specified in the instrument whereby the same is effected
and the time so specified may be the date of such instrument or any
reasonable time subsequent thereto so as to give the amendment
future effect.
7. PAYMENTS TO CHARITY
In exercise of the trusts and powers hereinbefore contained the Trustees
may at the request of any Beneficiary if they in their absolute discretion
shall so think fit pay or apply any part of the capital or income of the
Trust Fund to or for the benefit of any charity or other charitable
purposes approved by such Beneficiary and any such payment or application
shall be deemed to be for the benefit of such Beneficiary and the Trustees
shall not be restricted by any rule of law as to the amount or manner of
such payment or application and the receipt in writing of the treasurer or
other officer of any such charity shall be a sufficient discharge to the
Trustees for any capital or income paid to such institution hereunder.
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8. PAYMENTS TO INFANTS
Where the Trustees are authorised or required to pay or apply any income
or capital of the Trust Fund to or for the benefit of any infant the
Trustees may without seeing to the application thereof in their absolute
discretion either pay the same to him as his absolute property
notwithstanding that he is an infant and the receipt of any such infant
Beneficiary shall be a good discharge to the Trustees therefor or pay the
same to any parent or guardian of such infant or apply the same in such
manner as may be directed in writing by such parent or guardian and the
receipt of such parent or guardian in either case shall be a sufficient
discharge to the Trustees for any income or capital so paid or applied.
9. POWER TO IGNORE INTERESTS
Subject to Clause 15 hereof the Trustees in exercising any of the powers
hereby conferred in favour of any particular person are hereby expressly
authorised to ignore entirely the interests of any other person interested
or who may become interested under these presents and in particular (but
without prejudice to the generality of the foregoing) no appointment or
advancement made in exercise of any power hereinbefore contained shall be
invalid on the grounds that:
(1) an insubstantial illusory or nominal share is appointed to any one
or more objects of such power or left unappointed; or
(2) any object of such power is thereby altogether excluded;
but every such appointment or advancement shall be valid notwithstanding
that any one or more objects of the power is or are not thereby or in
default of appointment to take any share in the Trust Fund.
10. POWER TO CHANGE PROPER LAW
(1) Subject to Clause 15 hereof the Trustees may with the consent of the
Settlor at any time during the Trust Period by deed declare that:
(a) this Settlement shall from the date of such declaration take
effect in accordance with the law of some other state or
territory in any part of the world (being a place under the
law of which trusts are recognised and enforced); and
(b) the forum for the administration thereof shall thenceforth be
the courts of that state or territory.
(2) As from the date of any such declaration the law of the state or
territory named therein shall be the law applicable to this
Settlement and the courts thereof shall be the forum for the
administration thereof but subject to any further exercise by the
Trustees of the power contained in sub-clause (1) hereof.
(3) So often as any such declaration shall be made the Trustees shall be
at liberty to make such consequential alterations or additions in or
to the trusts powers and provisions of this Settlement as the
Trustees may consider necessary or desirable to ensure that the
trusts powers and provisions of this Settlement shall (mutatis
mutandis) be as valid enforceable and effective as they are under
the laws of the Island of Jersey.
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(4) Notwithstanding anything in this clause hereinbefore contained the
provisions hereof shall not authorise any such declaration which
would or might directly or indirectly result in an Excluded Person
obtaining any benefit.
11. ADDITIONAL POWERS OF THE TRUSTEES
Subject to Clause 15 hereof the Trustees shall have the additional powers
discretions rights and immunities set out in the Regulations.
12. EXERCISE OF POWERS
(1) Subject to Clause 15 hereof the Trustees shall exercise the powers
and discretions vested in them as they shall think most expedient
for the benefit of all or any of the persons actually or
prospectively interested under this Settlement and may exercise (or
refrain from exercising) any power or discretion for the benefit of
any one or more of them without being obliged to consider the
interests of the others or other.
(2) Subject to sub-clause (1) hereof and as herein otherwise expressly
provided every discretion vested in the Trustees shall be absolute
and uncontrolled and every power vested in them shall be exercisable
at their absolute and uncontrolled discretion and the Trustees shall
have the same discretion in deciding whether or not to exercise any
such power.
13. DELEGATION OF POWERS
(1) The Trustees shall have power, with the consent of the Settlor, at
any time by deed revocable during the Trust Period or irrevocable to
delegate to any person (including in cases where there is more than
one Trustee to any one of the Trustees) the execution or exercise of
all or any powers hereby or by law conferred on such Trustee.
(2) Without prejudice to the generality of the foregoing the Trustees
shall have power with the consent of the Settlor at any time by deed
revocable during the Trust Period or irrevocable to appoint an
investment manager whom the Trustees reasonably consider competent
and qualified to manage the investment of the Trust Fund and in so
doing the Trustees shall have the benefit of the indemnities
contained in the Trust Law in respect of any such appointment.
14. RESTRICTION AND RELEASE OF POWERS
Subject to Clause 15 hereof the Trustees shall have power at any time by
deed revocable during the Trust Period or irrevocable to any extent
restrict the future exercise of any powers hereby or by law conferred on
them notwithstanding the fiduciary nature of any such power.
15. RESTRICTION ON EXERCISE OF POWERS
Despite anything contained elsewhere in this Settlement:
(1) no discretion or power conferred on the Trustees or on any other
person shall be exercisable after the expiration of the Trust Period
or in such a way as to infringe any rule against perpetuities or
excessive accumulations applicable hereto or to prevent the
conditions laid down in Section 86 of the Inheritance Tax Act 1984
as amended from time to time of the United Kingdom from being
satisfied;
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(2) the Trustees shall not apply the capital or income of the Trust Fund
so as to provide relevant benefits as defined by section 612(1) of
the Income and Corporation Taxes Act 1988 as amended from time to
time of the United Kingdom to the intent that this Settlement shall
not constitute a retirement benefits scheme as defined in section
611 of that Act but so that the Trustees may apply the Trust Fund so
as to make provisions against future determination of service
through accidental death or accidental disability occurring whilst
in service, or similar matters to the intent that this Settlement
shall constitute a sponsored superannuation scheme as defined within
section 624(1) of the said Income and Corporation Taxes Act 1988;
and
(3) the Trustees shall not enter into any guarantees or grant any
indemnity that is not (in aggregate with all other guarantees and
indemnities entered into by the Trustees) limited in recourse to the
assets of the Trust Fund and/or the relevant sub-trust created under
this Settlement. The Trustees shall not borrow money or other
property whether such borrowing is secured or unsecured unless
previously agreed in writing with the Settlor.
(4) the Trustees shall neither directly or indirectly through a third
party purchase invest in or otherwise become involved in the
management of commercial real estate.
16. POWER OF APPOINTMENT AND REMOVAL OF TRUSTEES
(1) If any Trustee hereof whether original additional or substituted
shall die or being a corporation shall be dissolved or shall give
notice of his or its desire to withdraw and be discharged from the
trusts hereof under the provisions of sub-clause (2) of this clause
or shall refuse or become unfit to act or be removed as a Trustee
hereof by a court of competent jurisdiction (any such Trustee being
hereinafter referred to as an "Outgoing Trustee") then the persons
specified in the Fifth Schedule hereto in order of priority may by
deed appoint one or more other persons (whether resident within or
without the Island of Jersey) but subject to any exclusions or
provisions (if any) specified in the said Fifth Schedule to be a
Trustee hereof, subject to all terms and conditions hereof, in place
of such Outgoing Trustee.
(2) If any Trustee hereof shall at any time desire to withdraw and be
discharged from the trusts hereof he or it may (subject to any
exclusions or provisions, if any, specified in the said Fifth
Schedule) so do by notice in writing signed by himself or in the
case of a corporate Trustee by any of its officers given to the
person having for the time being power to appoint new or additional
Trustees hereof and upon the posting or personal delivery of such
notice the Trustee so doing shall cease to be a Trustee hereof to
all intents and purposes except as to acts and deeds necessary for
the proper vesting of the Trust Fund in the continuing or new
trustee or otherwise as the case may require.
(3) The person for the time being having the power to appoint new
trustees hereof shall (subject always to any exclusions, if any,
specified in the said Fifth Schedule) have power to appoint one or
more other persons (whether resident within or without the Island of
Jersey) to be an additional Trustee hereof subject to all terms and
conditions hereof.
(4) Acts and deeds to be done or executed for the proper vesting of the
Trust Fund in continuing new or additional Trustees shall be done
and executed by the Outgoing Trustee and the continuing Trustees (if
any) at the expense first of the income and then of the capital of
the Trust Fund PROVIDED THAT an Outgoing Trustee who is or may be
liable as a Trustee hereof or who may at the death of any person be
liable
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as a Trustee or former Trustee hereof for any liabilities whether
existing, future, contingent or otherwise shall not be bound to
transfer the Trust Fund unless reasonable security is provided for
indemnifying such Outgoing Trustee against such liabilities.
(5) Any new or additional Trustee appointed under the provisions hereof
or by a court of competent jurisdiction shall, subject to all terms
and conditions hereof, have such powers, rights and benefits as to
remuneration or otherwise as may be agreed in writing at or prior to
his or its appointment (in case of a Trustee appointed as
hereinbefore provided) between such new or additional Trustee and
the person making such appointment or (in the case of a Trustee
appointed by a court) as the order appointing such Trustee may
direct and in default of any such agreement or order shall have the
powers rights and benefits as to remuneration set out in Clause 19
hereof.
(6) Any Trustee for the time being of this Settlement being a
corporation shall have power to act by its proper officers.
(7) The person for the time being having power to appoint new Trustees
hereof shall have power to remove any Trustee or Trustees hereof by
written notice to the Trustee or Trustees to be removed and on
receipt of such written notice such Trustee or Trustees shall
immediately cease to be a Trustee or Trustees hereof to all intents
and purposes except as to acts and deeds necessary for the proper
vesting of the Trust Fund in the continuing or new trustee or
trustees or otherwise as the case may require and such person may by
deed (but subject always to any such exclusions and provisions as
aforesaid) appoint one or more other persons or corporations
(whether resident within or without the Island of Jersey) to be a
Trustee or Trustees hereof in place of the Trustee or Trustees
removed as aforesaid.
(8) Any new or additional Trustee or Trustees shall be bound by and
shall act in accordance with the provisions of this Settlement.
17. INDEMNITY OF OUTGOING TRUSTEE
An Outgoing Trustee shall be released from liability in respect of all
claims demands actions proceedings and accounts of any kind brought or
made by any Beneficiary or other person (whether in existence or not)
actually or prospectively interested under this Settlement or any trustee
of this Settlement for or in respect of any act or omission in relation to
the Trust Fund or the income thereof or the trusts of this Settlement or
any of the Outgoing Trustee's duties hereunder except only liability:
(1) arising from any breach of trust to which such trustee (or in the
case of a corporate trustee any of its officers or employees) was a
party or to which he was privy; or
(2) in respect of actions to recover from such trustee (or in the case
of a corporate trustee any of its officers or employees) trust
property or the proceeds of trust property in the possession of such
trustee officers or employees.
18. TRUSTEE INDEMNITY
(1) In the execution of the trusts and powers hereof no Trustee shall be
liable for any loss to the Trust Fund arising in consequence of the
failure, depreciation or loss of any investments made in good faith
or by reason of any act or omission made in good faith or of any
other matter or thing except liability for breach of trust arising
from
11
the fraud, wilful misconduct or negligence of the Trustee who is
sought to be made liable.
(2) The Settlor shall keep the Trustees (and each director, officer or
employee of any corporate trustee) fully indemnified against any
actions, claims, costs, demands, expenses and other liabilities
whatsoever for which they shall as Trustees be or become liable by
virtue of any act or event or thing whatsoever unless any such
actions, claims, costs, demands, expenses and other liabilities
shall be attributable to fraud, wilful misconduct or negligence on
the part of the Trustee who or which is sought to be made liable
save in each case (except where such actions, claims, costs,
demands, expenses and other liabilities shall be attributable to
fraud, wilful misconduct or negligence) to the extent that the same
is capable of being discharged from the capital or income of the
Trust Fund and/or any sub-trust created by a deed of appointment
under the terms of this Settlement and/or any insurance policy
entered into by the Trustees. In addition, the Trustees shall have
the benefit of all the powers, privileges and immunities conferred
upon trustees by statute or by law.
(3) Where the Trustees become aware of any matter that would or might
give rise to a claim against any other third party or under any
insurance policy in respect of any actions, claims, costs, demands,
expenses and other liabilities whatsoever for which they shall as
Trustees be or become liable by virtue of any act or event or thing
whatsoever the Trustee shall promptly notify the Settlor of such a
claim and the Trustees shall not settle or compromise such a claim
without the prior written consent of the Settlor (such consent not
to be unreasonably withheld or delayed). No liability shall arise
under the indemnity given in (2) above until such claim has been
discharged to the extent it is capable from the capital or income of
the Trust Fund and/or any sub-trust created by deed of appointment
under the terms of this Settlement and/or any insurance policy
entered into by the Trustees.
19. TRUSTEES REMUNERATION
(1) Any Trustee or Sub-trust Protector for the time being hereof being
an advocate, solicitor, accountant or other individual engaged in
any profession or business or any person associated or in any way
connected with such Trustee or Sub-trust Protector (including in the
case of a corporate trustee or Sub-trust Protector any person
associated with or beneficially interested in the shares of or in
any way connected with such corporate trustee or Sub-trust
Protector) shall be entitled to charge and be paid all usual
professional or other charges for business done and time spent and
services rendered by him or his firm and expenses incurred by him or
his firm in the execution of the trusts and powers hereof whether in
the ordinary course of his profession or business or not and
although not of a nature requiring the employment of an advocate
solicitor accountant or other professional person and any such
person shall be entitled to retain any commission which would or may
become payable to him notwithstanding that such commission is
payable as a direct or indirect result of any dealing with property
which is or may become subject to the trusts hereof.
(2) Any Trustee or Sub-trust Protector for the time being hereof who
shall be a company authorised to undertake trust business shall be
entitled in addition to reimbursement of its proper expenses to
remuneration for its services in accordance with such company's
usual or published terms and conditions for trust business in force
from time to time.
(3) No Trustee or Sub-trust Protector hereof or director or other
officer of any corporation which is a Trustee or the Sub-trust
Protector hereof shall be liable to
12
account for any remuneration or other profit received by him in
consequence of his acting as or being appointed to be a director or
other officer or servant of any company even though his appointment
was procured by an exercise by him or by the Trustees of voting
rights attached to securities in the Trust Fund or by any abstention
from exercising such voting rights.
(4) Any Trustee or Sub-trust Protector for the time being hereof or any
person associated or in any way connected with such Trustee or the
Sub-trust Protector (including in the case of a corporate trustee or
the Sub-trust Protector any person connected with or beneficially
interested in the shares of or in any way connected with such
Trustee or Sub-trust Protector) who carries on the business of
banking may act as banker for this Settlement on the same terms as
those made with an ordinary customer without being liable to account
to the Trust Fund for any profits earned thereby except for interest
payable on any sums placed with such trustee or associate on an
interest bearing account as an investment of any part of the Trust
Fund.
(5) For the avoidance of doubt, any payment under this Clause 19 shall
first be discharged from the assets of the Trust Fund and the
relevant sub-trust fund and no payment shall be made under Clause 18
until such time as all the assets of such funds are exhausted.
20. PROVISIONS AS TO EXCLUDED PERSONS
Subject only to Clauses 4(6) and 20 hereof no Excluded Person shall be
capable of taking any benefit of any kind by virtue or in consequence of
this Settlement and in particular but without prejudice to the generality
of the foregoing provisions of this clause:
(1) the Trust Fund and the income thereof shall be possessed and enjoyed
to the entire exclusion of any such Excluded Person and of any
benefit to him by contract or otherwise; and
(2) no part of the capital or income of the Trust Fund shall be paid or
lent or applied for the benefit either directly or indirectly of any
such Excluded Person in any manner or in any circumstances
whatsoever; and
(3) no power or discretion hereby or by any appointment made hereunder
or by law conferred upon the Trustees or any of them shall be
capable of being exercised in such manner that any such Excluded
Person will or may become entitled either directly or indirectly to
any benefit in any manner or in any circumstances whatsoever.
21. VARIATION OF TERMS OF SETTLEMENT
With the prior or simultaneous written consent of the Settlor the Trustees
may at any time during the Trust Period by deed vary amend add to or
delete any or all of the powers herein and in the Schedules declared and
contained PROVIDED ALWAYS that:
(1) they shall be satisfied that such variations amendments additions or
deletions are for the benefit of all or any one or more of the
Beneficiaries; and
(2) no such variation amendment addition or deletion shall infringe the
Proper Law or permit any Excluded Person to benefit in any way under
or by virtue of the trusts or powers contained in this Settlement
except as contemplated by Clauses 4(6) and 19 hereof; and
13
(3) no such variation amendment addition or deletion shall be capable of
affecting in any way any irrevocable decision resolution or
appointment previously made by the Trustees; and
(4) no such variation amendment or addition shall be made to the
provisions of this clause but it shall be permissible to delete this
clause in its entirety.
22. CONFIDENTIALITY
(1) Subject to the provisions of the Proper Law, the Trust Law and
sub-clauses (2) and (3) hereof and to any order of a court of the
jurisdiction of the Proper Law the Trustees shall not be obliged to
disclose to any Beneficiary or any other person having any interest
in this Settlement or any other person whatsoever:
(a) any accounts or document forming part of any accounts of this
Settlement or the accounts of any company in which the
Trustees shall have any interest PROVIDED THAT this shall not
enable the Trustees to withhold production of the accounts of
that part, if any, of the Settlement which the Trustees have
appointed as a separate fund distinct from all other assets in
the Trust Fund from a Beneficiary who is specified as a
Beneficiary of such a fund and who requests that a copy of
such accounts be made available to him within a reasonable
period after the expiry of the relevant accounting period; or
(b) any document disclosing the deliberations of the Trustees as
to the manner in which they exercised a power or discretion or
performed a duty conferred or imposed upon them; or
(c) any document disclosing the reason for any particular exercise
of a power or discretion or performance of a duty or the
material upon which such reason shall or might have been
based; or
(d) any document relating to the exercise or proposed exercise of
any power or discretion or the performance or proposed
performance of any duty.
(2) Notwithstanding the provisions of sub-clause (1) the Trustees shall
be required to make available to the auditors of the Settlor and to
the company secretary of the Settlor the annual accounts of the
Settlement and such other financial records of the Trustees as may
be requested in writing by such auditors or company secretary.
(3) The Trustees shall as requested from time to time provide to the
person holding the office of Finance Director for the group of
companies of which the Settlor is part such information as is
necessary to identify the funds held which have not been subject to
appointment into sub-trusts.
(4) The Trustees shall not be prevented from reporting to fiscal
authorities on behalf of the Settlor or any Participating Company if
under an obligation to do so.
14
23. IRREVOCABILITY
This Settlement shall be irrevocable.
24. PRELIMINARY EXPENSES
The Trustees shall have power to pay out of the Trust Fund all expenses of
whatever nature of and incidental to the creation of this Settlement.
25. THE SUB-TRUST PROTECTOR
(1) A separate Sub-trust Protector may be appointed of any part of the
Trust Fund held on distinct trusts and the provisions of this
Settlement concerning the Sub-trust Protector shall apply separately
to each such part of the Trust Fund save that the power in clause
5(1) of this Settlement shall be subject to the consent of the
Settlor.
(2) The person named as the Specified Beneficiary in a deed of
appointment creating a sub-trust under this Settlement, otherwise
the Trustees of any part of the Trust Fund held on distinct trusts,
shall have power by deed to appoint any person or body of persons in
any part of the world not being or including any of the Trustees to
act as Sub-trust Protector for the purpose of such part of the Trust
Fund.
(3) If a Sub-trust Protector for the time being of a part of the Trust
Fund dies or being a corporation is dissolved or is unable or
unwilling to act or wishes to retire ("the Outgoing Sub-trust
Protector"):
(a) the person named as the Specified Beneficiary in a deed of
appointment creating a sub-trust under this Settlement,
otherwise the Trustees of any distinct trusts; or in default
(b) such person or persons, being Beneficiaries of the sub-trust
created by a deed of appointment, as may be named by the
Specified Beneficiary of that sub-trust; or in default
(c) the Outgoing Sub-trust Protector (provided that he is willing
to do so and not suffering any incapacity affecting
judgement); or
(d) if there is no Sub-trust Protector able and willing to act the
Trustees for the time being of this Settlement
may appoint any person or body of persons not being or including a
Trustee to act as the Sub-trust Protector for the purposes of this
Settlement in place of such Sub-trust Protector. There shall be no
power (save as set out above and subject to the powers of a court of
competent jurisdiction) to remove the Sub-trust Protector.
(5) Any power or discretion made subject to the consent of the Sub-trust
Protector shall be exercisable free from the requirement if and so
long as there is no Sub-trust Protector.
(6) Any Sub-trust Protector (other than any of the Excluded Persons) who
is engaged in any profession or business may charge and be paid all
professional and other proper charges for work done services
rendered advice given or time spent by him or his firm in connection
with this Settlement whether or not within the scope of his
profession or business and though not of a nature requiring the
employment of a
15
professional or business person. In respect of a Sub-trust
Protector, such charges shall be met only out of the assets of the
sub-trust of which he is the Sub-trust Protector.
(7) A corporation may be appointed as the Sub-trust Protector on such
terms as to remuneration and otherwise as the person or persons
making the appointment may approve or prescribe.
(8) For the avoidance of doubt, the Sub-Trust Protector shall be bound
by and shall act only in accordance with the terms of this
Settlement and shall be bound by the same limitations as the
Trustees.
(9) Where a Sub-trust Protector is appointed reference in this
Settlement to the requirement for written consent of the Settlor
shall be deemed to refer to written consent of the Sub-trust
Protector in respect of that sub-trust SAVE for clause 5(1) where
written consent must be obtained from the Settlor.
26. RECEIPTS FROM BENEFICIARIES
Notwithstanding anything contained in this Settlement the Trustees may as
a condition of conferring any benefit upon any of the Beneficiaries
require that such Beneficiary provides a receipt in respect of the same or
a statement acknowledging that such benefit is accepted in full and final
settlement of a liability of the Settlor or a Participating Company to
such Beneficiary to provide benefit of a similar nature and amount.
27. ADDITION OF PARTICIPATING COMPANIES
A Participating Company shall be 1) any company which is a holding
company, a subsidiary or a subsidiary of a holding company (all as defined
in Section 736 of the Companies Act 1985 of the United Kingdom) of the
Settlor and 2) any other company determined to be such by the Settlor by
written notice to the Trustees.
28. SUBSTITUTION OF SETTLOR
In the event that any time during the Trust Period the Settlor becomes
insolvent or is declared bankrupt or is placed into liquidation (whether
solvent or insolvent) or winding-up or a receiver is appointed of the
Settlor's assets or the Settlor is the subject of any take-over or merger
by or with any other company or if the Settlor so agrees with the Trustees
in the absence of any such circumstances the Trustees may by written
instrument entered into with any other company agree that such other
company (hereinafter called the "Substitute Settlor") shall assume and
adopt all of the Settlor's powers and obligations pursuant to this
Settlement and thereafter this Settlement to the Settlor shall continue
and references in this Settlement to and all liabilities under this
Settlement of the Settlor shall mean and devolve respectively upon the
Substitute Settlor.
29 MAXIMUM VALUE OF BENEFITS
The Trustees shall not be liable to provide benefits under or in
connection with this Settlement which in aggregate exceed the value of the
Trust Fund from time to time.
30. RIGHT TO RELY ON INFORMATION SUPPLIED TO THE TRUSTEES
(1) The Trustees shall be entitled to rely without further enquiry on all
information supplied to them by the Settlor and any Participating Company
in connection with this Settlement and in particular any notice given by
the Settlor and any Participating Company to the Trustees in
16
respect of the eligibility of any person to become or remain a Beneficiary
or Employee or an Excluded Person shall be conclusive in favour of the
Trustees.
(2) In particular any written statement signed by a person being or purporting
to be a director, secretary or an authorised representative of the Settlor
and any Participating Company to the effect that any person is or has
ceased to be a Beneficiary or Employee or as to any other circumstance
affecting a person believed by the Trustees to be or not to be a
Beneficiary or Employee may be treated by the Trustees as conclusive
evidence of the matters referred to in the statement.
31. COUNTERPARTS
This Settlement may be executed in counterpart, each of which shall be an
original but together shall constitute one and the same instrument.
17
THE FIRST SCHEDULE HEREINBEFORE REFERRED TO: REGULATIONS
1. GENERAL POWER
The Trustees shall have all powers of investment, management, sale,
exchange, partition, pledge, assignment, leasing, insurance, repair,
building, development, protection, improvement, equipment, dealing and
disposition and all other powers of a natural person acting as absolute
beneficial owner of the Trust Fund and their powers shall not be
restricted by any principle of construction (or rule or requirement of the
Proper Law save to the extent that such is obligatory) but shall operate
according to the widest generality of which the foregoing words are
capable notwithstanding that certain powers are hereinafter more
particularly set forth SAVE that the Trustees shall have no power either
acting singularly or jointly with any other person (i) to borrow money or
other property on the security of the Trust Fund or unsecured with power
to charge any part of the capital or income (including any future income)
of the Trust Fund with the repayment of any moneys or property so borrowed
unless previously agreed in writing with the Settlor; and (ii) to
appropriate or to 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 obligations of any Beneficiary and to give any
guarantee or to become surety for any Beneficiary (or in any of the
aforesaid cases in respect of any company in which a Beneficiary shall
have an interest notwithstanding that others may also be so interested)
and for these purposes to hypothecate mortgage or charge any investments
or property for the time being forming part of the Trust Fund or to
deposit or transfer any such investments or property with or to any person
firm or company on trust or by way of security.
2. RESTRICTIONS ON INVESTMENT POWERS
The Trustees shall be restricted in their powers of investment in the same
way that an employee of the Settlor or of a Participating Company is
restricted by regulatory constraints as shall be notified from time to
time whether imposed by the employer generally or by any body the
directions of which the employer adopts in respect of investments that may
not be made by employees so that the Trustees shall follow that process
which an employee is obliged to follow to ensure that restrictions on
investment powers are not breached.
3. POWERS OF INVESTMENT
(1) Subject to Regulations 1 and 2 trust moneys may be invested or laid
out in the purchase of (or at interest upon the security of) such
stocks, funds, shares, securities or other investments or property
of whatsoever nature and wheresoever situate and whether involving
liability or not and whether producing income or not 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
investing and transposing investments and laying out moneys in all
respects as if they were absolutely entitled thereto beneficially
and without regard to the requirements of the Proper Law (save to
the extent that these are obligatory) and in the professed exercise
of this power the Trustees shall not be liable for any loss to the
Trust Fund arising from any investment or purchase made in good
faith.
(2) Without prejudice to the generality of the preceding paragraph
hereof:
(a) the acquisition of any investment although of a speculative
nature shall be deemed to be an authorised investment of trust
moneys and the Trustees shall not be under any obligation or
be liable for any loss occasioned by any failure
18
to diversify investments notwithstanding that the whole or a
substantial part of the Trust Fund may consist of a single
asset or the stocks shares or debentures of a single company;
(b) the acquisition of any reversionary interest in property or
any policy or securities or other investments not producing
income or in respect of which no dividend interest or rent is
payable shall be deemed to be an authorised investment of
trust moneys;
(c) the acquisition of any limited interest in property including
any limited equitable interest under a settlement or trust or
any annuity or policy or securities or other investments being
of a wasting nature shall be deemed to be an authorised
investment of trust moneys;
(d) the Trustees shall have power to make any such investment as
is mentioned in paragraphs (b) and (c) of this sub-regulation
notwithstanding that the making thereof may affect or alter
the interests of the persons respectively interested in
capital and income hereunder;
(e) the Trustees shall have power to apply any moneys forming part
of the capital or income of the Trust Fund in the purchase or
subscription of partly paid shares and shall have power to pay
up such shares at such times and in such manner as they shall
in their absolute discretion determine;
(f) the Trustees shall have power pending the investment thereof
for any period to place any moneys forming part of the Trust
Fund on current or deposit account with any bank or any other
company or corporation conducting the business of banking or
accepting moneys on deposit in any part of the world and may
open and maintain banking accounts in their joint names or in
the name of any one of them or the name of this Settlement;
(g) the Trustees may invest the whole or any part of the capital
or income of the Trust Fund in effecting purchasing or
otherwise acquiring and paying premiums on any policy of
assurance upon the life of any person whether such policies be
whole life or endowment or policies to cover death within any
term (howsoever short) or policies restricted to death by
accident and generally upon any terms and conditions as the
Trustees shall think fit and the Trustees shall have all the
powers of an absolute beneficial owner as respects any policy
forming part of the Trust Fund including the power to exercise
any option afforded by such policy or to sell or realise any
such policy or to convert the same into a fully paid up policy
or into any other form of assurance;
(h) the Trustees shall have power to leave any assets subject to
any of the trusts of this Settlement in the state of
investment in which they may be from time to time;
(i) the Trustees shall have power at any time to sell or call in
any investments or property for the time being comprised in
the Trust Fund or transpose or convert the same into any other
investments or property the acquisition of which with moneys
subject hereto is hereby authorised;
(j) in the exercise of the powers herein contained the Trustees
shall not be under any duty to see that the value of the Trust
Fund or any part thereof is
19
preserved or enhanced in any way nor shall they be liable for
any failure in that respect whatsoever.
4. TRUSTEES NOT BOUND TO INTERFERE IN BUSINESS OF COMPANY IN WHICH TRUST
INTERESTED
The Trustees shall not be bound or required to interfere in the management
or conduct of the business of any company wherever resident or
incorporated in which the Settlement shall be interested although holding
the whole or a majority of the shares carrying the control of the company
and the Trustees in all cases shall be at liberty to leave the conduct of
its business (including the payment or non-payment of dividends) wholly to
such directors without requiring to be supplied with any information
concerning the company or its affairs beyond that to which every
shareholder would be entitled and no Beneficiary hereunder shall be
entitled to require the distribution of any dividend by any company
wherever incorporated or resident in which the Settlement may be
interested or require the Trustees to exercise any powers they may have of
compelling any such distribution.
5. POWER TO MAKE LOANS TO BENEFICIARIES
The Trustees shall have power to lend the whole or any part of the Trust
Fund:
(1) on reasonably prudent commercial terms to any person whatsoever; and
(2) on such terms as to repayment and interest or interest free and
whether with or without security to any Beneficiary (or to any
company in which a Beneficiary may have an interest notwithstanding
that others may also be interested in that company);
as the Trustees may in their absolute discretion think fit but so that no
such loan shall be made on terms that repayment shall be postponed beyond
the Trust Period.
6. POWER TO PERMIT USE OF TRUST ASSETS
The Trustees shall have power to permit any Beneficiary to use or enjoy or
otherwise derive benefit from any of the assets comprising the Trust Fund
including for the avoidance of doubt to reside in any dwelling occupy any
land or have the custody and use of any chattels which may for the time
being be held subject to the trusts hereof upon such conditions as to
payment of rent rates taxes and other expenses and outgoings and as to
insurance repair and decoration and for such period and generally upon
such terms as the Trustees in their absolute discretion shall think fit
and it shall be no bar to the exercise of such power that some person or
persons in addition to the Beneficiary shall also thereby incidentally
have the use of or enjoyment of such dwelling house land or chattels.
7. POWER TO PAY DUTIES AND TAXES
In the event of any tax duty or fiscal imposition whatsoever becoming
payable in the Island of Jersey or elsewhere in respect of the Trust Fund
or any part thereof in any circumstances whatsoever the Trustees shall
have power to pay all such taxes duties or fiscal impositions out of the
Trust Fund or the income thereof and shall have entire discretion as to
the time and manner in which the said taxes duties or fiscal impositions
shall be paid and the Trustees may pay such taxes duties or fiscal
impositions notwithstanding that the same shall not be recoverable from
the Trustees or the Beneficiaries or other persons entitled hereunder or
that the payment shall not be to the advantage of any Beneficiary or other
person entitled hereunder.
20
8. POWER TO APPORTION BETWEEN INCOME AND CAPITAL
The Trustees shall have power to treat as income or as capital any
dividends stock dividends rights interests rents or profits derived from
any property at any time constituting the whole or any part of the Trust
Fund and generally to determine what part of the receipts of this
Settlement is income and what is capital whether or not such property is
wasting hazardous or unproductive or was purchased at a premium or
discount and notwithstanding the time when such dividends stock dividends
rights interest rents or profits were earned accrued declared or paid to
make such reserves out of income or capital as the Trustees deem proper
for expenses taxes and other liabilities of this Settlement to pay from
income or from capital or to apportion between income and capital any
expenses of making or changing investments and of selling exchanging or
leasing including brokers commissions and charges and generally to
determine what part of the expenses of this Settlement shall be charged to
capital and what part to income and to determine as between separate funds
and separate parts or shares the allocation of income gains profits losses
and distributions. Any decisions of the Trustees under this Regulation
whether made in writing or implied from their acts shall so far as the law
may permit be conclusive and binding on the Beneficiaries and all persons
actually or prospectively interested under this Settlement.
9. POWER TO APPROPRIATE
The Trustees shall have power to appropriate the Trust Fund or any part
thereof in such manner and in accordance with such valuation as they in
their absolute discretion think fit and without the consent of any
Beneficiary hereunder being required for any such appropriation.
10. POWER TO TAKE ADVICE
The Trustees shall have power to take the opinion of legal counsel locally
or where necessary or appropriate elsewhere concerning any matter in any
way relating to this Settlement or to their duties in connection with the
trusts hereof and in all matters to act in accordance with the opinion of
such counsel AND in addition the Trustees shall have power to employ and
take advice from any of the professional advisers or agents referred to in
the Trust Law and shall have the benefit of the indemnity in respect
thereof contained in the Trust Law. Except where the professional fees,
commissions and disbursements of all such advisers or agents including
legal counsel relate to actions arising out of the fraud, wilful
misconduct or negligence on the part of the Trustee (when, for the
avoidance of doubt, the indemnity in clause 19 shall not apply) the
professional fees commissions and disbursements of all such advisers or
agents including legal counsel shall be payable out of the income or
capital of the Trust Fund as the Trustees shall think fit. For the
avoidance of doubt, if the Trustees are advised to institute or defend any
actions or proceedings or threats thereof concerning the Settlement the
Trustees shall have the power to act accordingly.
11. POWER TO GIVE RECEIPTS
The Trustees shall have power to give receipts for any money securities or
other property or effects and so that any receipt so given shall be a
sufficient discharge to the person paying transferring or delivering the
same and shall effectively exonerate him from seeing to the application
thereof or being answerable for any loss or misapplication thereof.
12. POWER TO EFFECT COMPROMISES
The Trustees shall have power to:
21
(1) accept any property whether movable or immovable before the time at
which it is transferable or payable;
(2) pay or allow any debt or claim on any evidence which they may think
sufficient;
(3) accept any composition or any security movable or immovable for any
debt or any property due to or claimed by the Trustees;
(4) allow any time for payment of any debt;
(5) compromise compound abandon submit to arbitration or otherwise
settle any debt account claim or thing relating to the Trust Fund
out of the assets of the Trust Fund without being liable for any
loss to the Trust Fund thereby occurring.
13. POWER TO GIVE INDEMNITIES
The Trustees shall have power to enter into any indemnity in favour of any
former trustee in respect of any tax duty or fiscal imposition or other
liability of any nature prospectively payable in respect of the Trust Fund
or otherwise in connection with this Settlement and to charge or deposit
the whole or any part of the Trust Fund as security for such indemnity in
such manner in all respects as they shall think fit.
14. PROTECTION OF PROPERTY
The Trustees shall not be liable for any loss damage or depreciation that
may happen at any time or from any cause to any property forming part of
the Trust Fund and they shall not be bound to see nor be liable or
accountable for omitting or neglecting to see to the upkeep or repair of
any such property but may repair alter renew improve maintain store and
replace any such property in such manner and to such extent as they shall
think fit the cost thereof to be borne by the income or capital of the
Trust Fund as the Trustees shall in their absolute discretion think fit.
15. COMPANIES
(1) The Trustees may at any time at the expense of the income or capital
of the Trust Fund arrange or join or concur in arranging for the
incorporation or registration of any company in any part of the
world (but only with limited liability in which liability cannot
exceed or be paid from anything other than assets of the Trust Fund)
for all or any of the following purposes (with or without other
purposes) that is to say:
(a) to purchase take on lease or otherwise acquire and to hold or
employ in any business or otherwise turn to account or dispose
of all or any of the property for the time being subject to
the trusts hereof or any rights of any kind over the same
either with or without any other assets and so that the
Trustees may accept from any such company such consideration
for any such purchase lease or other acquisition as the
Trustees shall in their discretion think fit (whether in the
form of cash stocks shares or securities of the same or any
other company rents options or in any other form whatsoever);
(b) to manage cultivate or otherwise administer all or any of the
property for the time being subject to the trusts hereof
either with or without any other assets or to act as nominee
agent or attorney (whether sole or joint) for the Trustees and
so that the Trustees may pay or allow to any such company such
fees
22
share of profits or other remuneration for such management
cultivation or other work of administration or for acting as
such nominee agent or attorney as they may in their discretion
think fit and may permit any such company to act as nominee
agent or attorney (whether sole or joint) for any other person
approved of by the Trustees;
(c) to be one of the trustees or sole trustee hereof or of any
appointment or appointments made hereunder with respect to any
part or parts of the Trust Fund held on trusts distinct from
those relating to any other part or parts and so that the
Trustees may permit any such company to be one of the trustees
or sole trustee of any other trust approved of by the
Trustees.
(2) The Trustees shall have power subject to Regulations 1 and 2:
(a) to agree to any reconstruction amalgamation or other arrangement or
scheme concerning any company whose shares comprise or form part of
the Trust Fund (and in this and the two following sub-clauses of
this clause the word "shares" includes stock funds debentures
debenture stock mortgage or any other securities in all cases only
to the extent that they are limited liability);
(b) to accept in addition to or in lieu of those already held other
shares to the extent that they are limited liability in any company
whose shares comprise or form part of the Trust Fund in connection
with or as part of any such reconstruction amalgamation arrangement
or scheme as aforesaid;
(c) to agree to the winding up of any company whose shares comprise or
form part of the Trust Fund.
(3) Without prejudice to the generality of their other powers but subject to
Regulations 1 and 2 the Trustees shall have the power to acquire, hold,
deal in and make a market in any limited liability shares of any of:
(a) the Settlor; or
(b) any company for the time being a subsidiary of the Settlor; or
(c) any former subsidiary of the Settlor; or
(d) any company of which the Settlor is or becomes a subsidiary whether
or not the Settlor remains a subsidiary of such company,
and in this sub-regulation (3) "subsidiary" shall have the meaning as
defined in section 736 of the Companies Act 1985 of the United Kingdom but
unless and until the Trustees so determine in writing the power contained
in this sub-regulation (3) shall not be available to the Trustees and
following any such determination the power shall only be available to the
extent permitted by such determination provided in all cases that any such
company is a limited liability company.
16. TRUSTEES MAY ACT NOTWITHSTANDING PERSONAL INTEREST
Subject as herein otherwise expressly provided any of the Trustees may
exercise or join or concur in exercising any or all of the powers and
discretions hereby or by law given to the Trustees notwithstanding that he
may have a personal interest in the mode or result of exercising any such
power or discretion but any of the Trustees may abstain from acting
23
except as a merely formal party in any matter in which he may be
personally interested as aforesaid and may allow a co-trustee to act alone
in the exercise of the powers and discretions aforesaid in relation to
such matter.
17. TRANSACTIONS WITH OTHER TRUSTS
The Trustees may in the execution of any of the trusts hereof or in
exercise of any of the powers hereby or by law given to them sell property
or lend money to or buy property from or carry out any other transaction
with the trustees of any other trust or the executors or administrators of
any estate (not being a trust or estate under which any Excluded Person
shall have any beneficial or prospective interest whatsoever)
notwithstanding that the Trustees or any of them are or is the same
persons or person as those trustees executors or administrators or any of
them and where the Trustees are the same persons as those trustees
executors or administrators the transaction shall be binding on all
persons then or thereafter interested hereunder though effected and
evidenced only by an entry in the accounts of the Trustees.
18. CONTRACTS WITH INDIVIDUAL TRUSTEES
(1) Any of the Trustees may contract with the Trustees as vendor or
purchaser or otherwise in a matter in which he is personally
interested PROVIDED THAT there is at least one trustee who has no
personal interest in such contract.
(2) This provision is additional and without prejudice to the provisions
of the last preceding regulation (relating to transactions in which
one or more of the Trustees are interested in different fiduciary
capacities).
19. POWER TO HOLD THE TRUST FUND IN THE NAME OF A NOMINEE
The Trust Fund or any part of it may be held in the name of a nominee or
nominees for and on behalf of the Trustees and the Trustees shall have
power to pay such nominee or nominees reasonable fees for their services
out of the Trust Fund.
24
THE SECOND SCHEDULE HEREINBEFORE REFERRED TO: INITIAL PROPERTY
The sum of one thousand pounds sterling ((Pound)1000.00).
25
THE THIRD SCHEDULE HEREINBEFORE REFERRED TO: THE BENEFICIARIES
1. (1) Subject to (2) below, all present officers and employees of the
Settlor at the date of creation of this Settlement and all persons who
become officers and employees of the Settlor or its successor during the
Trust Period including (in all cases) after they cease to be such officers
and employees for any reason and all officers and employees of any
Participating Company at the date when that company becomes a
Participating Company (including in the case of a company which becomes a
Participating Company on the date of this Settlement by reason of being a
subsidiary, a holding company or a subsidiary of a holding company of the
Settlor on that date all officers and employees of such company on that
date) and all persons who become such officers and employees while that
company is a Participating Company (but not otherwise) including (in all
cases) after they cease to be such officers and employees for any reason.
2. All grandparents living from time to time of the persons in 1 above and
all children and remoter issue living from time to time of such
grandparents (other than the person in 1 above but including the children
and remoter issue of that person).
3. The spouses former spouses (including divorced spouses) widows and
widowers from time to time of all persons described in 1 and 2 above and
any persons who are, in the opinion of the Trustees (whose opinion shall
be conclusive) co-habitees from time to time of a person described in 1
above.
4. The parents and grandparents and brothers and sisters of all spouses
former spouses widows widowers described in 3 above as well as the spouses
former spouses (including divorced spouses) widows widowers from time to
time of such brothers and sisters.
5. Any person who has at any time been or is from time to time, in the
opinion of the Trustees (whose opinion shall be conclusive) financially
dependent upon a person described in 1 above who is not otherwise included
within any of 2, 3 or 4 above.
26
THE FOURTH SCHEDULE HEREINBEFORE REFERRED TO: EXCLUDED PERSONS
1. The Trustees for the time being.
2. The Settlor and any Participating Company.
27
THE FIFTH SCHEDULE HEREINBEFORE REFERRED TO: APPOINTMENT OF NEW OR ADDITIONAL
TRUSTEES
1. The power of appointing new or additional Trustees shall be vested in the
Settlor failing which the said power shall be vested in the surviving or
continuing Trustees or if there are no such then in the Trustee or
Trustees desiring to be discharged and failing this the personal
representatives of the last surviving Trustee (if an individual) or if
such last surviving Trustee was a company in the liquidator thereof.
2. Neither the Settlor nor any Participating Company may be appointed as
trustee hereof.
28
IN WITNESS WHEREOF this Settlement has been executed on the date first above
written.
THE COMMON SEAL of )
VIATEL HOLDING (BERMUDA) LIMITED)
was affixed hereto )
in the presence of )
/s/ Lucy Woods
Director
/s/ Leslie Goodman
Director/Secretary
THE COMMON SEAL of )
EB TRUSTEES LIMITED )
was affixed hereto )
in the presence of )
/s/ Colum Spillane
Authorised Person
/s/
Authorised Person
29
INDEX
CLAUSE PAGE
1. Interpretation 1
2. Proper Law 3
3. Declaration of Trust of Original and Additional Property 3
4. Trusts of Income and Capital 4
5. Powers of Appointment and Advancement 5
6. Provisions Relevant to Clause 5 7
7. Payments to Charity 8
8. Payments to Infants 8
9. Power to Ignore Interests 8
10. Power to Change Proper Law 8
11. Additional Powers of the Trustees 9
12. Exercise of Powers 9
13. Delegation of Powers 9
14. Restriction and Release of Powers 9
15. Restriction on Exercise of Powers 10
16. Power of Appointment and Removal of Trustees 10
17. Indemnity of Outgoing Trustee 11
18. Trustee Indemnity 12
19. Trustees Remuneration 12
20. Provisions as to Excluded Persons 13
21. Variation of Terms of Settlement 14
22. Confidentiality 14
23. Irrevocability 15
24. Preliminary Expenses 15
25. The Protector 16
26. Receipts from Beneficiaries 16
27. Addition of Participating Companies 17
28. Substitution of Settlor 17
30. Maximum value of Benefits 17
31. Right to Rely on Information supplied to the Trustees 17
32. Counterparts 17
FIRST SCHEDULE
1. General Power 18
2. Restrictions on Investment Powers 18
3. Powers of Investment 18
4. Trustees not bound to Interfere in Business of Company in which Trust Interested 20
5. Power to Make Loans to Beneficiaries 20
6. Power to Permit Use of Tax Assets 20
7. Power to Pay Duties and Taxes 20
8. Power to Apportion between Income and Capital 20
9. Power to Appropriate 21
10. Power to Take Advice 21
11. Power to Give Receipts 21
12. Power to Effect Compromises 21
13. Power to Give Indemnities 22
14. Protection of Property 22
15. Companies 22
16. Trustees may act Notwithstanding Personal Interest 24
17. Transactions with other Trusts 24
30
CLAUSE PAGE
18. Contracts with Individual Trustees 24
21. Power to Hold the Trust Fund in the name of a Nominee 24
SECOND SCHEDULE
Initial Property 25
THIRD SCHEDULE
The Beneficiaries 26
FOURTH SCHEDULE
Excluded Persons 27
FIFTH SCHEDULE
Appointment of New or Additional Trustees 28
31
DATED: 18 JULY 2005
INSTRUMENT OF SETTLEMENT
MADE BY
VIATEL HOLDING (BERMUDA) LIMITED
AND
EB TRUSTEES LIMITED
"VTL EMPLOYEE BENEFIT TRUST"
32