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THE AUTOENROLMENT.CO.UK MASTER TRUST
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TABLE OF CONTENTS
Clause Page No.
1. INTERPRETATION ...................................................................... 1
2. GOVERNING LAW .................................................................... 10
3. JURISDICTION ........................................................................ 10
4. CONSTITUTION OF THE SCHEME ............................................... 10
5. AMENDING THE DEFINITIVE DEED ............................................. 11
6. SCHEME ASSETS HELD ON TRUST ............................................. 12
7. SCHEME ADMINISTRATOR ........................................................ 12
8. DEDUCTION AND RECOVERY OF TAX .......................................... 12
9. APPOINTMENT, RETIREMENT AND REMOVAL OF TRUSTEES ........... 13
10. TRUSTEE MEETINGS AND RESOLUTIONS .................................. 14
11. TRUSTEE DECISIONS, EXERCISE OF DISCRETIONS AND CONFIDENTIALITY .............................................................. 15
12. TRUSTEE'S ADMINISTRATION AND DELEGATION POWERS .......... 17
13. LITIGATION AND DISPUTES .................................................... 18
14. ACCOUNTS AND RECORDS ...................................................... 19
15. DEALINGS WITH THE TRUSTEES .............................................. 20
16. APPOINTING PROFESSIONAL ADVISERS ................................... 21
17. PERSONAL INTERESTS OF A TRUSTEE ...................................... 22
18. TRUSTEE'S INVESTMENT POWERS ............................................ 22
19. DELEGATION OF INVESTMENT POWERS AND ADMINISTRATION OF INVESTMENTS .................................................................... 25
20. PAYMENT OF BENEFITS: GENERAL PROVISIONS ........................ 26
21. PAYMENT OF DEATH BENEFITS: DISCRETIONARY TRUSTS ........... 29
22. PROHIBITION ON ASSIGNMENT AND FORFEITURE OF BENEFITS .. 30
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23. REDUCING BENEFITS BECAUSE OF A CHARGE, LIEN OR SET-OFF . 31
24. TRUSTEE LIABILITY: LIMITATIONS ........................................... 32
25. TRUSTEE LIABILITY: EXEMPTION ............................................. 32
26. REPLACEMENT COMPANY ........................................................ 33
27. EMPLOYERS: ADMISSION TO THE SCHEME ................................ 34
28. EMPLOYERS: CEASING PARTICIPATION .................................... 35
29. EXPENSES ............................................................................ 36
30. TRANSFERS OUT .................................................................... 36
31. TRANSFERS IN ...................................................................... 37
32. WINDING UP THE SCHEME ...................................................... 38
33. TERMINATION OF EMPLOYER SECTIONS ................................... 38
SCHEDULE 1: RULES ........................................................... 41
SCHEDULE 2: PARTICIPATION AGREEMENT ............................ 50
1
THIS DEFINITIVE DEED is made 21st January 2015 between: SMART PENSION LIMITED incorporated and registered in England and Wales with company number 09026697 whose registered office is at 20 Eastbourne Terrace, London, W2 6LG (the "First Company"). EC2 MASTER LIMITED incorporated and registered in England and Wales with company number 9352674 of One London Wall, London, EC2Y 5AB (the "Original Trustee"). BACKGROUND
(A) The First Company wishes to establish an occupational pension scheme (as defined in section 18 of the PA 2008) under irrevocable trusts for use by non-associated employers to be known as the AutoEnrolment.co.uk Master Trust (the "Scheme").
(B) The Original Trustee has agreed to be the first Trustee of the Scheme.
(C) The sole purpose of the Scheme is to provide Relevant Benefits such that it qualifies as a Registered Pension Scheme.
(D) The benefits to be provided under the Scheme shall be those as set out in this Definitive Deed.
(E) The Company has paid £100 to the Trustee for the purposes of establishing the Scheme (the "Initial Fund").
OPERATIVE PROVISIONS NOW THIS DEED WITNESSES that the Original Trustee HEREBY DECLARES that the Scheme is established with effect from the Commencement Date and shall be governed by the terms of this Definitive Deed.
1. INTERPRETATION
The following definitions and rules of interpretation apply in this Definitive Deed.
1.1 Definitions:
Active Member: means an Employee who has been admitted to membership and remains in Pensionable Service but not a Deferred Member.
Actuary: any actuary appointed in accordance with Clause 16.1 in relation to the
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Scheme.
Adoption Leave: an Active Member's absence from Service permitted by Chapter 1A of Part VIII of the ERA 1996 together with any further period allowed by an Employer.
Auditor: the auditor appointed in relation to the Scheme under section 47 of the PA 1995.
Automatic Enrolment Date:
the date on which a person qualifies as an Eligible Jobholder.
Automatic Enrolment Regulations:
means the Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010 (SI 2010/772).
Automatic Re-enrolment Date:
the date on which an Eligible Jobholder is automatically re-enrolled in the Scheme in accordance with section 5 of the PA 2008 and regulation 12 of the Automatic Enrolment Regulations.
Beneficiary: a beneficiary under the Scheme (including any Member and any potential or contingent beneficiary).
Benefits Policy: means any policy of insurance or annuity contract issued by an Insurance Company to or in respect of a person entitled to an immediate benefit under the Scheme, for the purposes of securing that benefit outside the Scheme, which complies with the Contracting-out Laws, Transfer Value Laws and the Preservation Laws.
CA 2006: Companies Act 2006.
Cash Transfer Sum: the meaning given in section 101AB(3) of the PSA 1993.
Civil Partner: a person who has entered into a civil partnership with another person in accordance with the Civil Partnership Act 2004.
Commencement Date: means the date of this Definitive
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Deed.
Company: means the First Company and thereafter any successor company which replaces that entity in accordance with Clause 26.
Contracting-Out Laws: Means the contracting-out laws set out in the PSA 1993 and any other corresponding legislation.
Deferral Date: a date three or such other period of months as may be specified (so long as such period is permitted under the PA 2008 and relevant secondary legislation) after an Eligible Jobholder's Automatic Enrolment Date.
Deferred Member: a former Active Member who has left Pensionable Service and is entitled to benefits under the Scheme by virtue of a period of Pensionable Service as an Active Member that has ceased.
Definitive Deed: means this Definitive Deed and the Schedules to it.
Dependant: an individual (whether or not a Relative) who, in the Trustee’s opinion, satisfies the meaning of "dependant" in connection with a Member given in paragraph 15 of Schedule 28 to the FA 2004. A Dependant includes a Member's Qualifying Partner on the date the Member first became entitled to a pension under the Scheme.
Disclosure Requirements:
the requirements about disclosing information to Members and Beneficiaries contained in the PA 1995 and the Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013 (SI 2013/2734).
EEA: the European Economic Area.
Earmarking Order: a court order made under section 23 of the Matrimonial Causes Act 1973 (as amended by the PA 1995) in
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connection with a person's entitlement to receive a pension.
Electronic Communication:
the meaning given in section 15(1) of the Electronic Communications Act 2000.
Eligible Jobholder: an Employee who meets the requirements of section 1(1) and 3(1) of the PA 2008 in relation to an Employer with which he is in Service.
Employee: a person employed by an Employer.
Employer: means an employer participating in the Scheme and in relation to a particular Member means the participating employer by which they are for the time being employed (or the employer by which the Employee was last employed).
Employer Section: has the meaning set out in Clause 4.3.
ERA 1996: Employment Rights Act 1996.
Ex-partner: a person granted rights to a Pension Credit under a Pension-sharing Order.
FA 2004: Finance Act 2004.
FSMA 2000: Financial Services and Markets Act 2000.
HMRC: Her Majesty's Revenue and Customs.
Insurance Company: a company that has permission under Part IV of the FSMA 2000 to effect or carry out contracts of long-term insurance, a friendly society enabled by regulations made under section 162 of the PSA 1993 to conduct approved insurance business, or an EEA company lawfully carrying on long-term insurance business in the UK.
Jobholder: an Employee who meets the requirements of section 1(1) of the PA 2008 in relation to an Employer with which he is in Service.
Lifetime Allowance: the meaning given to the standard
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lifetime allowance in section 218 of the FA 2004.
Lifetime Allowance Charge:
the meaning given in section 214 of the FA 2004.
Member: means an Active Member and Deferred Member.
Member's Account: has the meaning set out at Clause 4.4.
Nominated Dependant: a Dependant whom a Member has nominated in writing to the Trustee as a potential recipient of the proceeds of his Member’s Account on his death. If a Member leaves no Nominated Dependant, but the Trustee is satisfied that the Member has left an adult Dependant on his death, the Trustee may treat that Dependant as a Nominated Dependant under this Definitive Deed.
Normal Minimum Pension Age:
the meaning given in section 279 of the FA 2004 (as varied by Schedule 36 to the FA 2004).
Normal Pension Age: the age of 65 or such other age as may be agreed from time to time between the Trustee and the Member in writing provided such age is not earlier than Normal Minimum Pension Age.
Opt-in Notice: a notice by which an Employee opts into Pensionable Service in a form determined by the Employer, provided it complies with the requirements of regulation 18 of the Automatic Enrolment Regulations.
Opt-out Notice: a notice by which an Active Member opts out of Pensionable Service in a form determined by the Trustee, provided it complies with the requirements of regulation 9 of the Automatic Enrolment Regulations.
PA 1995: Pensions Act 1995.
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PA 2004: Pensions Act 2004.
PA 2008: Pensions Act 2008.
Paid Family Leave: means a period of Maternity Leave, Paternity Leave or Adoption Leave during which an Active Member receives contractual pay or statutory maternity, paternity or adoption pay from an Employer.
Participation Agreement:
has the meaning set out at Clause 27.2.
Paternity Leave: an Active Member's absence from Service permitted by Chapter 3 of Part VIII of the ERA 1996 together with any further period allowed by an Employer.
Pension Commencement Lump Sum:
a lump sum which is a pension commencement lump sum under Part 1 of Schedule 29 to the FA 2004, unless a Member is entitled to receive a higher lump sum under paragraphs 31 to 34 of Schedule 36 to the FA 2004.
Pension Credit: a credit under section 29(1)(b) of the WRAPA 1999.
Pension Debit: a debit under section 29(1)(a) of the WRAPA 1999.
Pension Debit Member: a Member whose benefits in the Scheme have been permanently reduced by a Pension Debit.
Pension-sharing Order: a court order made under section 28(1) of the WRAPA 1999 following a divorce or dissolution of a civil partnership.
Pensionable Service: means Service with an Employer during which an Active Member contributes to the Scheme.
Preservation Laws:
means the laws on preservation of benefits under the PSA 1993.
PSA 1993: Pension Schemes Act 1993.
Qualifying Partner: the surviving Spouse of a deceased Member at the date of the Member's
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death, provided that if the Member married or entered into a civil partnership on the day he died, the Trustee has discretion to decide whether the Member's surviving Spouse is a Qualifying Partner.
Qualifying Arrangement:
has the meaning given in paragraph 6 of Schedule 5 to the WRAPA 1999.
Registered Pension Scheme:
a pension scheme that is registered with HMRC under section 153 of the FA 2004.
Regulator: the Pensions Regulator.
Relative: for a deceased Member, any living individual who is:
(a) a surviving Spouse or Civil Partner;
(b) a former Spouse or Civil Partner;
(c) a natural or adopted child or step-child;
(d) a natural or adoptive parent or step-parent or the surviving Spouse or Civil Partner of such parent; or
(e) a brother, sister, uncle, aunt or grandparent, provided that a Relative includes a half-blood relative and any child conceived but not born at the date of the Member's death.
Relevant Benefits: the benefits which a Registered Pension Scheme is permitted to provide under section 150 (1)(a) to (e) of the FA 2004.
Reserve Fund: a fund established in accordance with Clause 18.16.
Revaluation Laws:
the provisions about the revaluation of benefits contained in the PSA 1993.
Rules: means the rules contained in Schedule 1.
Same Sex Spouse: The person to whom a Member is
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legally married in accordance with the Marriage (Same Sex Couples) Act 2013.
Scheme Assets: The fund to which the trusts of the Scheme as set out in Clause 6 apply, comprising money and other assets received by the Trustee in accordance with this Definitive Deed, and all income derived therefrom.
Scheme Sanction Charge:
the meaning given in section 239 of the FA 2004.
Scheme Year: a period of 12 months ending on 5 April each year or such other period as the Company and the Trustee may agree.
Serious Ill-health Lump Sum:
a lump sum which is a serious ill-health lump sum under Part 1 of Schedule 29 to the FA 2004.
Service: service with an Employer (whether as an Employee or otherwise).
Spouse: the person to whom a Member is legally married (including a Same Sex Spouse) or a Member's Civil Partner.
Statement of Investment Principles:
the meaning given in section 35 of the PA 1995.
TA 1925: Trustee Act 1925.
Transfer Value Laws: means the laws on transfer values under the PSA 1993.
Trivial Commutation Lump Sum:
a lump sum which is a trivial commutation lump sum under Part 1 of Schedule 29 to the FA 2004.
Trustee: the Original Trustee or otherwise the trustee or trustees of the Scheme for the time being.
Trustee Liability: any costs, charges, damages, expenses, losses, penalties or taxes which the Trustee or any Trustee may incur in connection with the Scheme.
Trustee Officer: any Trustee (if appointed as an individual) or any director, employee or other officer of the Trustee (if the
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Trustee is a company).
Unauthorised Payment:
the meaning given in section 160(5) of the FA 2004.
Unpaid Family Leave: a period of Maternity Leave, Paternity Leave or Adoption Leave which is not Paid Family Leave.
Winding-up Lump Sum:
a lump sum which is a winding-up lump sum within the meaning given in Part 1 of Schedule 29 to the FA 2004.
WRAPA 1999: Welfare Reform and Pensions Act 1999.
1.2 Clause, Schedule and Rule headings shall not affect the interpretation of this Definitive Deed.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
1.4 The Schedules form part of this Definitive Deed and shall have effect as if set out in full in the body of this Definitive Deed. Any reference to this Definitive Deed includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to any party shall include that party's personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes fax and Electronic Communication.
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1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 The Company and the Trustee confirm that nothing in this Definitive Deed is intended to confer on any third party any right to enforce any provision of the Contracts (Rights of Third Parties) Act 1999.
1.14 A reference to this Definitive Deed or to any other deed or document referred to in this Definitive Deed is a reference to this Definitive Deed or such other deed or document as varied or novated (in each case, other than in breach of the provisions of this deed) from time to time.
1.15 References to Clauses and Schedules are to the Clauses and Schedules of this Definitive Deed and references to Rules are to the Rules appearing at Schedule 1 as amended from time to time.
1.16 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. GOVERNING LAW
This Definitive Deed and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
3. JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Definitive Deed or its subject matter or formation (including non-contractual disputes or claims).
4. CONSTITUTION OF THE SCHEME
4.1 The Company and the Trustee hereby confirm that the Scheme is established under irrevocable trusts from the Commencement Date.
4.2 The sole purpose of the Scheme is to provide Relevant Benefits for Members, Relatives and Dependants. Relevant Benefits are provided on the basis set out in the Rules.
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4.3 Upon execution of a Participation Agreement by an Employer, the Trustee shall establish a separate section of the Scheme for that Employer ("Employer Section").
4.4 The Trustee shall establish an account for each Active Member within the relevant Employer Section upon receipt by the Trustee of contributions corresponding to that Active Member ("Member’s Account").
4.5 Each Member's Account shall be separately identifiable and the funds contained therein shall not be capable of being used to provide benefits in respect of any other Member’s Account.
5. AMENDING THE DEFINITIVE DEED
5.1 Subject to Clause 5.3, the Company may, with the agreement of the Trustee, amend, alter, rescind or add to any provision of this Definitive Deed, including this Clause.
5.2 The Company and the Trustee undertake to make any amendments or additions to this Definitive Deed that are required by law.
5.3 The Company and the Trustee must effect any amendment made under Clause 5.1 by deed.
5.4 The Company and the Trustee must not amend this deed in a manner which would or might prejudice the Scheme's status as a Registered Pension Scheme or as a qualifying scheme for the purposes of the PA 2008.
5.5 The power in Clause 5.1 is subject to the restrictions and requirements of section 67 of the PA 1995.
5.6 The power in Clause 5.1 may be exercised at any time, including retrospectively and during the winding-up of the Scheme or an Employer Section. If the power is exercised retrospectively, the Trustee may administer the Scheme until a deed has been executed making retrospective amendments to this Definitive Deed as if the amendments were already effective.
5.7 The Trustee must give any Member affected by any amendment or addition to this Definitive Deed notice in writing within three months after the date on which a deed is executed under Clause 5.3
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6. SCHEME ASSETS HELD ON TRUST
6.1 The Trustee holds the Scheme Assets (including the Initial Fund) on irrevocable trusts to be applied in accordance with and subject to the provisions of this Definitive Deed.
6.2 The Scheme Assets attributed to each Employer Section shall be separately identifiable at all times with each Employer Section having its own sub-fund to be known as an employer fund (each an "Employer Fund").
6.3 The Scheme is exempt from the operation of any rules of law relating to perpetuities in accordance with section 2 of the Perpetuities and Accumulations Act 2009. If at any time this exception ceases to apply, the Scheme must be wound up and the trusts of the Scheme dissolved on a date that falls 60 years from the date of this Definitive Deed or on any later date that may be permitted by law.
7. SCHEME ADMINISTRATOR
7.1 Subject to Clause 7.2, the Trustee is responsible for discharging the functions of scheme administrator required under Part 4 of the FA 2004.
7.2 The Trustee may appoint a person to act as scheme administrator in its place on such terms as it (following consultation with the Company) determines to discharge the functions referred to in Clause 7.1.
8. DEDUCTION AND RECOVERY OF TAX
8.1 If the Trustee is liable (whether alone or jointly with any other person) to HMRC for the payment of tax (including any charge or surcharge payable under the FA 2004) in relation to any payment made from, or under, the Scheme, the Trustee shall have the power, at its absolute discretion, to make a deduction from the payment not exceeding the amount for which it is liable to account to HMRC.
8.2 If a Lifetime Allowance Charge or a Scheme Sanction Charge is payable by the scheme administrator in accordance with the FA 2004 as a result of any payment made to, or in respect of a Member, the Trustee may at its option, recover the tax paid from any lump sum payable to or in respect of a Member and/or the pension payable to, or in respect of a Member in respect of whom the tax charge has arisen in any manner as it determines is appropriate.
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8.3 If following the payment of any Lifetime Allowance Charge or Scheme Sanction Charge under Clause 8.2 it transpires that no tax was payable or that the tax payable was of a different amount, the Trustee may make any adjustment to the pension or lump sum (as appropriate) payable to the Member that it determines.
8.4 The scheme administrator shall deduct, or will cause to be deducted, income tax from any pensions payable under the Scheme in accordance with the requirements of legislation in force at the relevant time and will report payment of the benefits to HMRC in accordance with statutory timescales.
8.5 If the Trustee is accountable to HMRC for inheritance tax on any benefit payable under the Scheme, it will be entitled to deduct the amount of the tax from the benefit.
8.6 The Trustee may, at its absolute discretion, recover any tax, charge or surcharge arising in respect of, or by reference to, any Member (which it does not recover by deduction from benefits) from the Member or his estate or any other person who may have received a benefit in respect of a member.
8.7 Any provision in this Definitive Deed which would require the Trustee to make an Unauthorised Payment must be treated as conferring on the Trustee discretion as to whether to make the payment.
9. APPOINTMENT, RETIREMENT AND REMOVAL OF TRUSTEES
9.1 Subject to Clause 9.3, the Company (with Trustee consent) may appoint any person or corporate body as a Trustee, as an additional Trustee or in place of a Trustee on such terms as it considers appropriate.
9.2 A Trustee may be resident or incorporated inside or outside the UK and may be a Beneficiary or Employer.
9.3 The appointment of a new Trustee must be made by deed, executed by the Company, any continuing Trustee and the new Trustee.
9.4 No person or body may be appointed as a Trustee if prohibited or disqualified under sections 3 or 29 of the PA 1995.
9.5 A corporate body appointed as a Trustee may act either as sole trustee or jointly with any other Trustee, provided that if there is no corporate body acting as sole trustee, the number of Trustees must at all times be at least two.
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9.6 To the extent the Scheme is required to do so, the Trustee and Company must comply with sections 241 to 243 of the PA 2004.
9.7 The Company may remove a Trustee from office by giving the trustee notice in writing, provided at least two Trustees or a trust corporation remain in office after his removal. The removal must be made by deed executed by the Company and any continuing Trustee.
9.8 A Trustee may retire by giving at least three months' notice in writing to the Company and any continuing Trustee, provided at least two Trustees or a trust corporation remain in office after his retirement. The retirement must be made by deed executed by the Company, the retiring Trustee and any continuing Trustee.
9.9 A Trustee who retires or is removed from office must take all such steps as are necessary to give effect to his retirement or removal, including concerning the transfer to any continuing Trustee of any Scheme Assets (including the Initial Fund) that are under his control or registered in his name.
9.10 The Trustee shall notify the Regulator of the appointment, removal or resignation of any Trustee and provide any information that may be required under sections 59 to 65 of PA 2004.
10. TRUSTEE MEETINGS AND RESOLUTIONS
10.1 If the Trustee is a company acting as sole trustee, it must exercise the powers, duties and discretions of the Trustee by its board of directors or its duly authorised officers, employees or agents and conduct its proceedings in accordance with its articles of association. Any decision of the company properly taken in accordance with its articles of association constitutes a decision of the Trustee.
10.2 If there is no company acting as sole trustee, the Trustees must arrange and conduct their proceedings in accordance with such procedures they consider appropriate from time to time, provided that:
10.2.1 unless a decision of the Trustees is required urgently, each Trustee must be given at least thirty days' notice of a meeting of the Trustees. Notice must be sent to a Trustee's last known email or postal address and must specify the date, time and place of the Trustee meeting;
10.2.2 the quorum for a meeting of the Trustees is a majority of the individual Trustees, except that if there is no quorum at two successive meetings that have been properly
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convened, and proper notice was given of the second meeting, that meeting is deemed quorate so long as there are two Trustees present;
10.2.3 the Trustees present at a meeting must elect a chairman of the meeting from their number and if there is no majority of votes for one Trustee, the chairman must be selected by lot by the Trustees present at a meeting;
10.2.4 all business brought before a meeting of the Trustees, including the exercise of the Trustees' powers, duties and discretions, must be decided by a majority of the Trustees present and voting;
10.2.5 in the event of any equality of votes the chairman of the meeting shall have a second or casting vote;
10.2.6 a Trustee may participate in a meeting (and be deemed to be present) by telephone, internet, video link or any other suitable form of electronic communication; and
10.2.7 a written resolution signed by all of the Trustees (or the directors of the Trustee as the case may be) takes effect as if passed at a meeting of the Trustees. Such resolution may comprise one or more documents in similar form (including documents sent by fax or email). If sent by email, a resolution authorised by a Trustee is deemed to be signed by the Trustee concerned.
11. TRUSTEE DECISIONS, EXERCISE OF DISCRETIONS AND CONFIDENTIALITY
11.1 The Trustee may exercise any discretion conferred on it by this Definitive Deed absolutely and as it considers appropriate, provided that the Trustee must not take any step to prejudice the Scheme's status as a Registered Pension Scheme or status as an automatic enrolment scheme. In exercising its discretion about whether any benefit should be paid to any person under the Scheme, the Trustee is not required to consider the claim of any person except a Beneficiary (or potential or contingent Beneficiary) whose existence has been expressly notified to the Trustee or whom the Trustee can identify by making reasonable enquiries.
11.2 Subject to Clause 5, the Trustee may ratify, alter or revoke any decision taken by it about the Scheme (including any exercise of discretion and any administrative act or omission) if it considers that doing so would not have a materially detrimental effect on the Scheme (including on the benefits paid to a Member), provided
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that if the consent of the Company or an Employer was required to a decision or act, the Company’s or Employer's consent must be obtained to any ratification, alteration or revocation of the Trustee’s initial decision.
11.3 If the Trustee is required to obtain the consent of the Company or an Employer to a decision or exercise of discretion, it is entitled to treat written instructions received from a director or officer of the Company or Employer as confirmation of the Company’s/that Employer's consent.
11.4 In administering the Scheme, the Trustee may decide any matter of doubt arising under this Definitive Deed about an issue of fact or law. In considering any issue of fact, the Trustee may act on the basis of such evidence as it considers appropriate, provided that it may accept any information about a Beneficiary provided by an Employer as conclusive evidence without further enquiry (except in cases of manifest error).
11.5 If any time limit for taking any step is specified by this Definitive Deed, the Trustee may waive or vary that limit as it considers appropriate, except in the case of any time limit prescribed by law or for the period of time specified in Clause 21.5.
11.6 If a Trustee or Trustee director (in the case of a corporate trustee) holds information which he is under a duty to the Company or an Employer to keep confidential (either under the general law or by agreement) ("Confidential Information"), then that Trustee or Trustee director is entitled to refuse to disclose the Confidential Information to any other Trustee or Trustee director, provided that as soon as reasonably practicable after first receiving the Confidential Information (or ascertaining that the Confidential Information may be relevant to the Scheme) the Trustee or Trustee director:
11.6.1 notifies the other Trustees/Trustee directors in writing that he is subject to a conflict of duty and therefore may not participate in any discussion or decision by the Trustees or Trustee directors that might relate to the Confidential Information; and
11.6.2 does not participate in any such discussion or decision.
11.7 Nothing in this Clause imposes any more onerous duty of confidentiality on a Trustee than he would be subject to under the general law.
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12. TRUSTEE'S ADMINISTRATION AND DELEGATION POWERS
12.1 The duties in law and under this Definitive Deed to administer and manage the Scheme are vested in the Trustee. The Trustee must establish and operate internal controls in accordance with section 249A of the PA 2004. In discharging its powers, the Trustee may make such regulations or rules relating to the administration and management of the Scheme as it considers appropriate, including the power to constitute one or more sub-committees on such terms as the Trustee considers appropriate, provided that such regulations or rules do not conflict with this Definitive Deed.
12.2 Subject to sections 33 and 34 of the PA 1995 and Clause 18 of this Definitive Deed (and provided that no power, duty or discretion delegated to any person who is not a Trustee entitles that person to act as a Trustee), the Trustee may, on such terms as it and the Company consider appropriate:
12.2.1 delegate any of its powers, duties or discretions to any person, including a person appointed as the Trustee’s agent by power of attorney for such purpose and for such duration as the Trustee (and Company) consider appropriate. A delegate may in turn sub-delegate his delegated powers, duties or discretions with the prior agreement in writing of the Trustee who delegated the powers to that delegate;
12.2.2 authorise any person to provide receipts or discharges; and
12.2.3 employ any person to assist in administering the Scheme, provided that the terms and conditions of employment of any person whom the Trustee wishes to appoint as secretary to the Scheme must be agreed by the Company.
12.3 A delegate, agent or employee appointed by the Trustee under Clause 12.2 may receive such remuneration as the Trustee considers appropriate, payable as an expense of the Scheme under Clause 29 provided that Company consent to that level of remuneration has been obtained prior to their appointment.
12.4 In accordance with section 70 of the PA 2004, if the Trustee, an Employer or any other person involved in the administration of the Scheme have reasonable cause to believe that the Trustee has not complied or is not complying with its duties in connection with the Scheme and that this failure to comply is likely to be of material significance to the Regulator, they must report the matter in writing to the Regulator as soon as reasonably practicable.
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12.5 The Trustee is not obliged to disclose any documents, information or records relating to the Scheme (in whole or in part) unless ordered to do so by a court, tribunal or ombudsman of competent jurisdiction. This duty does not affect the Trustee’s obligation to disclose such information, make such statements and provide (or make available) copies of such documents to Beneficiaries or others as are required by the Disclosure Requirements or any other relevant statute.
12.6 Any notice that the Trustee is required to provide to a Beneficiary under this Definitive Deed is deemed to have been properly provided if the Trustee has sent the notice in writing to the Beneficiary's address most recently known to the Trustee or (in the case of a Member in Service) to the address of the Member's usual place of employment.
12.7 Any notice of a matter that this Definitive Deed requires to be given to the Trustee must be given in such form and manner required by the Trustee, with such supporting evidence (if any) as the Trustee may stipulate.
12.8 The Trustee may publish announcements or provide information about the Scheme to a Beneficiary in such written form as it considers appropriate. Information disclosed to a Beneficiary under the Disclosure Requirements may be given by means of Electronic Communication.
12.9 The Trustee may accept gifts or compensation and apply them in such manner as it considers appropriate, consistent with the Scheme's status as a Registered Pension Scheme.
13. LITIGATION AND DISPUTES
13.1 The Trustee may take any step that it considers necessary to maintain the Scheme Assets or the rights of Beneficiaries, consistent with the sole purpose of the Scheme and provided that the Trustee is not obliged to start, continue or defend any legal proceedings concerning the Scheme. Without prejudice to the generality of this power, such steps may include:
13.1.1 starting, continuing, defending, settling or compromising legal proceedings about any dispute of fact or law in connection with the Scheme or any Beneficiary's rights under it (whether in court or before a tribunal or ombudsman of competent jurisdiction and including submitting any matter to arbitration, mediation or any other form of alternative dispute resolution); and
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13.1.2 guaranteeing the payment of any sum or the performance of any obligation or indemnifying any person against any liability, loss or expense.
13.2 The Trustee must put in place arrangements for the resolution of disputes about matters relating to the Scheme in accordance with section 50 of the PA 1995. The Trustee’s determinations under these arrangements are final and binding on all persons and in giving its determinations, the Trustee is not obliged to give reasons for its decisions, unless required to do so by a court, tribunal or ombudsman of competent jurisdiction.
14. ACCOUNTS AND RECORDS
14.1 The Trustee must ensure that at all times it complies with the record-keeping requirements of section 49 of the PA 1995 and any other requirements arising from time to time in order to maintain the Scheme's status as an automatic enrolment scheme. Without prejudice to these requirements, the Trustee must keep and maintain in written form the following:
14.1.1 accounts for the Scheme, including records of all expenditure from the Scheme during a Scheme Year (both the calculation of benefits, deduction of charges from benefits and payment of benefits to Beneficiaries and otherwise). The accounts must be submitted each year to the Auditor appointed in accordance with Clause 16.2;
14.1.2 records of meetings of the Trustee, including all decisions taken at such meetings. Any minute of a meeting of the Trustee that has been signed by the chairman is conclusive evidence of the decisions taken at that meeting;
14.1.3 records of the Scheme's membership, including the dates on which Members joined the Scheme, left Pensionable Service and reached Normal Pension Age (as appropriate);
14.1.4 records of the Member contributions paid to the Scheme and all deductions therefrom;
14.1.5 records of any complaints made by Members or disputes with Members, including details of their resolution; and
14.1.6 records of the identity of the Employers, the amounts of Employer contributions paid and any other amounts received by the Scheme.
14.2 If the Trustee keeps any records required by Clause 14.1 in electronic form, it may destroy any corresponding paper records
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which have been kept in electronic form for at least six months provided that such destruction is in keeping with any requirements under the PA 2008, the Automatic Enrolment Regulations or any legislation enacted in respect of the automatic enrolment schemes.
14.3 The Trustee must obtain audited accounts for a Scheme Year as soon as reasonably practicable after the end of that Scheme Year and in any event no later than seven months after the end of the Scheme Year. The audited accounts must meet the requirements specified in the Occupational Pension Schemes (Requirement to obtain Audited Accounts and a Statement from an Auditor) Regulations 1996 (SI 1996/1975).
15. DEALINGS WITH THE TRUSTEES
15.1 A person dealing in good faith with the Trustee need not question or investigate:
15.1.1 whether the Trustee can or should properly exercise a purported power or discretion;
15.1.2 the authority of the Trustee to transfer money or assets to him; or
15.1.3 how the Trustee applies money or assets paid by him to the Trustees.
15.2 A person dealing in good faith with any person appointed, delegated or authorised by the Trustee under Clause 12.2 may assume and act on the assumption that the person has been properly appointed, delegated or authorised by the Trustee unless he has received notice in writing from the Trustee that its authority has been revoked.
15.3 If the Trustee is not a corporate body acting as sole trustee, a receipt signed by any Trustee is a complete discharge to any person dealing in good faith with the Trustee. If the Trustee is a corporate body, a person who receives a receipt or discharge may rely on any authority given by the Trustee contained in a copy of a minute provided it has been certified by a Trustee as a true copy of a minute referred to in Clause 14.1.2.
15.4 Any dealing by a person acting in good faith with the Trustee (or a person appointed, delegated or authorised by the Trustee) referred to in this Clause is deemed to be valid and has full effect.
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16. APPOINTING PROFESSIONAL ADVISERS
16.1 The Trustee may appoint in writing from time to time on such terms as it considers appropriate an Actuary. The Actuary must:
16.1.1 be a Fellow of the Institute of Actuaries or of the Faculty of Actuaries in Scotland; and
16.1.2 not be prohibited from acting as Actuary by section 27 of the PA 1995.
16.2 The Trustee must appoint in writing from time to time on such terms as it considers appropriate an Auditor. The Auditor must:
16.2.1 be an individual or firm qualified to act as statutory auditor of a private company under section 1212 of the CA 2006;
16.2.2 not be prohibited from acting as Auditor by section 27 of the PA 1995; and
16.2.3 audit the Scheme's accounts in accordance with Clause 14.3.
16.3 For so long as the investment of the Scheme Assets involves undertaking a regulated activity for the purposes of section 22 of the FSMA 2000, the Trustee must appoint in writing from time to time an investment manager in accordance with Clause 19.2.3.
16.4 The Trustee may from time to time:
16.4.1 appoint a legal adviser in writing on such terms as it considers appropriate; and
16.4.2 appoint in writing any medical practitioner, financial adviser or other professional whom the Trustee considers competent to give advice on such terms as they consider appropriate for the purposes of advising the Trustee in the administration of the Scheme.
16.5 The Trustee may remove any professional adviser appointed under this Clause by giving notice in writing, provided such removal would not breach the provisions of the PA 1995.
16.6 Subject to Clause 25, the Trustee may in good faith rely and act on the advice or opinion of any professional adviser duly appointed under this Clause and is not liable for any loss to the Scheme arising from such reliance.
16.7 The costs and expenses incurred in engaging any adviser under this Clause must be paid as an expense of the Scheme in accordance with Clause 29.
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17. PERSONAL INTERESTS OF A TRUSTEE
17.1 A Trustee who is also a Beneficiary (or is connected or associated with the Company) may retain any benefits to which he is entitled under the Scheme and is not obliged to account for any such benefits.
17.2 A Trustee who is also a Beneficiary or has any other direct or indirect personal interest in any decision to be made or power or discretion to be exercised by the Trustee must disclose his personal interest in the Scheme at the start of each meeting of the Trustee.
17.3 No decision of a Trustee nor the exercise of any power or discretion under the Scheme by a Trustee is invalidated on the basis that the Trustee is also a Beneficiary (or is connected or associated with the Company) or has any other direct or indirect personal interest in the outcome.
18. TRUSTEE'S INVESTMENT POWERS
18.1 Subject to Clauses 18.2, 18.4 to 18.12 and Clause 19.2 the Trustee may invest the Scheme Assets as if it were absolutely and beneficially entitled to them. The Trustee may invest or apply the Scheme Assets in any manner, whether or not involving liability or producing income, and whether or not authorised by law as an appropriate investment of trust assets.
18.2 The Trustee shall not invest the Initial Fund.
18.3 Without prejudice to Clause 18.1, the Trustee may invest or apply all or any part of the Scheme Assets in the following:
18.3.1 (subject to section 49(1) of the PA 1995) deposit accounts with a bank, Insurance Company, building society, finance company or local authority;
18.3.2 policies or contracts effected with an Insurance Company, including policies covering risk of loss or damage to any Scheme Assets;
18.3.3 stocks, shares, debentures, bearer securities, commodities or other investments;
18.3.4 units in unit trusts, exempt or mutual funds, other collective investment schemes or partnership shares;
18.3.5 foreign currencies at any rate of exchange and for present or forward settlement;
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18.3.6 futures, traded options, swaps, contracts for differences or other financial instruments;
18.3.7 any interest in land or other real or personal property, including improving or developing any interest;
18.3.8 subject to Clause 18.4, loans to any persons on such terms as the Trustee thinks fit, whether secured or unsecured;
18.3.9 works of art and terminable, reversionary or wasting assets, whether income producing or not;
18.3.10 patents, trademarks or copyrights or any other form of intellectual property;
18.3.11 stock-lending arrangements for the sale and repurchase of any Scheme Assets, whether overnight or for any other period of time; or
18.3.12 underwriting or sub-underwriting any investment (whether alone or on a joint basis and whether on issue or sale).
18.4 In exercising its powers of investment for the Scheme Assets, the Trustee:
18.4.1 must comply with section 36 of the PA 1995 and the Occupational Pension Schemes (Investment) Regulations 2005;
18.4.2 may take any further steps necessary to discharge any of the powers set out in Clause 18.3;
18.4.3 must pay due regard to the overall financial interests of the Members;
18.4.4 must not carry on a trading activity;
18.4.5 must ensure that the requirements of section 40 of the PA 1995 relating to employer-related investments are complied with; and
18.4.6 must not make any loan to a Member or Beneficiary which is unsecured or secured against his interest in the Scheme, or guarantee the repayment of all or part of a loan made to a Member or Beneficiary.
18.5 The Trustee shall subject to the provisions of the PA 1995 make available to Members from time to time such elective and default
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investment choices as it considers appropriate (the “Investment Choice List”).
18.6 A Member may choose from the Investment Choice List which of the assets from time to time representing his Member's Account shall be allocated to that choice.
18.7 Having made a choice under Clause 18.6, a Member shall notify the Trustee in writing of that choice and shall direct the Trustee to invest his Member's Account in accordance with his choice.
18.8 Upon receipt of the Member’s written direction, the Trustee shall follow that direction and shall invest his Member's Account in accordance with his choice within a reasonable time unless the Trustee is of the opinion that in doing so it would breach any of its legal obligations.
18.9 The Trustee shall not be liable for the consequences of following any Member’s direction or the timing of investments related to that direction.
18.10 Any Member who chooses to select his own investments in accordance with Clauses 18.6 and 18.7 agrees to indemnify the Trustees in respect of all costs and expenses arising as a consequence of the exercise of the power in accordance with Clause 18.8.
18.11 If a Member does not provide a direction to the Trustee for the purposes of investing his Member’s Account, the Trustee shall invest his Member’s Account in a default fund selected by the Trustee.
18.12 Members shall only be permitted to make a change to their chosen investments once per quarter during a Scheme Year or such other number of changes as may be agreed between the Company and the Trustee from time to time and notified to the Members in writing.
18.13 The Trustee may change the Investment Choice List from time to time having taken proper advice.
18.14 The Trustee must prepare, maintain and, from time to time, review and revise a written Statement of Investment Principles relating to the Scheme Assets, provided that:
18.14.1 nothing in the Statement of Investment Principles requires the Trustee to obtain the consent of the Company/Employers before it exercises any investment powers; and
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18.14.2 in preparing, reviewing or revising the Statement of Investment Principles, the Trustee must consult with the Employers.
18.15 The Trustee may borrow any sum in any currency in the exercise of any of its powers under the Scheme. In exercising this power, the Trustee may, subject to the Occupational Pension Schemes (Investment) Regulations 2005 (SI 2005/3378):
18.15.1 secure performance of any obligation on such terms as it considers appropriate; and
18.15.2 charge any sum borrowed.
18.16 The Trustee may from time to time maintain a reserve fund in cash with any bank or institution deemed appropriate ("Reserve Fund"). In maintaining the Reserve Fund, the Trustee must have regard to the likely demands on the income of the Scheme from time to time.
18.17 Subject to any HMRC requirements, the Trustee may commingle all or part of the Scheme Assets with the assets of another Registered Pension Scheme on such terms as it thinks fit.
18.18 In exercising its powers in this Clause, the Trustee may give any guarantee, warranty or undertaking as it considers necessary in entering into a transaction with another party.
19. DELEGATION OF INVESTMENT POWERS AND ADMINISTRATION OF INVESTMENTS
19.1 The Trustee may open and operate any bank account on such terms as it considers appropriate.
19.2 Subject to sections 34 and 47 of the PA 1995, the Trustee may appoint on such terms as it considers appropriate (provided Company consent has been obtained) any:
19.2.1 custodian, to hold documents of title of any of the Scheme Assets in safe custody (whether within or outside the UK);
19.2.2 nominee, in whose name any investment of the Scheme Assets may be made, and to whom the Trustee may delegate any of its relevant powers and discretions; or
19.2.3 investment manager, to whom the Trustee may delegate its investment powers in connection with the Scheme Assets. An investment manager appointed under this Clause must be authorised under FSMA 2000 and must
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manage the investment of the Scheme Assets in accordance with Clause 18 and section 36 of the PA 1995.
19.3 In appointing a custodian, nominee or investment manager under this Clause, the Trustee (with Company consent) may enter into an agreement on ordinary commercial terms (including about remuneration, sub-delegation and the appointment of sub-nominees or agents), provided these are standard within the industry.
19.4 The Trustee must take all such steps as are reasonable to satisfy itself that an investment manager appointed under Clause 19.2.3:
19.4.1 has the appropriate knowledge and experience for managing the investments of the Scheme; and
19.4.2 is carrying out his work competently and in accordance with section 36 of the PA 1995.
19.5 If the Trustee appoints a nominee under Clause 19.2, the Trustee may allow the nominee to pass any documents of title relating to the Scheme Assets to a custodian of the nominee's choosing.
19.6 Any documents of title held by a custodian appointed by the Trustee or the Trustee’s nominee must be held to the order of the Trustee (or the nominee as the case may be) and the Trustee is not responsible if they are lost or destroyed.
19.7 The Trustee may remove any custodian, nominee or investment manager it has appointed by giving such notice in writing as it may from time to time decide.
20. PAYMENT OF BENEFITS: GENERAL PROVISIONS
20.1 The Trustee may make such arrangements as it considers appropriate for the payment of benefits under the Scheme.
20.2 If a pension is payable from a Member’s Account to a Beneficiary under the Scheme it is payable for the remaining lifetime of the Beneficiary and paid in equal monthly instalments in arrears on such date as the Trustee may determine, provided that:
20.2.1 if the first regular payment date falls after the date the pension comes into payment under this Definitive Deed, the Trustee may vary the amount of the first instalment to take into account the additional period of entitlement;
20.2.2 a pension is ordinarily payable in pounds sterling and if for any reason a pension is payable in any other currency, the Trustee may convert the pension into the other currency at
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a rate of its choosing and the Beneficiary concerned must pay the cost of such conversion;
20.2.3 the Trustee must notify a Beneficiary in advance of the date his pension is due to start and of any changes to the regular payment date; and
20.2.4 if the Trustee considers that the amount of the pension payable is insufficiently large to justify its payment in equal monthly instalments, it may pay the pension at such other intervals as it considers appropriate (which must be no less often than annually). For the avoidance of doubt no pension payable shall exceed the value of the Member’s Account.
20.3 Before starting to pay a benefit due under the Scheme to a Beneficiary, the Trustee may write to the Beneficiary at his last known address asking him to:
20.3.1 confirm his existence. If the Trustee receives no response from the Beneficiary within such reasonable period as it may specify, it may assume he is no longer alive and is not required to take any further steps to trace the Beneficiary;
20.3.2 confirm the amount of the Lifetime Allowance available to him. If the Trustee receives no response from the Beneficiary within such reasonable period as it may specify, it may defer payment of the benefit until it receives satisfactory evidence of the amount of the Lifetime Allowance available to the Beneficiary. If this evidence is not forthcoming, and the benefit is still not in payment on the day before the Beneficiary attains age 75, the Trustee may assume that the Lifetime Allowance available to the Beneficiary at the date the benefit became due was zero. The Trustee must pay to HMRC a Lifetime Allowance Charge calculated on this basis and must put the Beneficiary's benefits into payment after having reduced them to the extent necessary to reflect the Lifetime Allowance Charge; and
20.3.3 provide such other information or evidence as it considers appropriate, including such written consent as is necessary to enable the Trustee to comply with the requirements about sensitive personal data contained in the Data Protection Act 1998.
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20.4 In calculating benefits due to a Beneficiary, the Trustee may round instalments to avoid fractional payments.
20.5 A benefit due to a Beneficiary under the Scheme may not be put into payment if more than six years have passed from the date on which the Beneficiary became entitled to receive the benefit and the Beneficiary has not claimed the benefit. But the Trustee may allow arrears of such unpaid benefits to be paid if it considers it appropriate.
20.6 If the Trustee ascertains that it has relied on incorrect information in determining the amount of a benefit payable to a Beneficiary under the Scheme (including information about the Beneficiary's age, marital status or state of health and whether that information was supplied inadvertently or deliberately and including a failure to disclose material information or correct inaccurate records held by the Trustee), the Trustee may amend the benefit and instead pay the benefit calculated on the basis of correct information. If a Beneficiary has received an overpayment of benefits as a result, the Trustee may reduce future instalments of any pension due to the extent necessary to recover the overpayment.
20.7 If a Beneficiary is a minor or is suffering from any mental or physical incapacity which in the opinion of the Trustee renders him incapable of managing his affairs, the Trustee may:
20.7.1 pay or apply to any person for the Beneficiary's maintenance or on his behalf any benefit to which the Beneficiary is entitled under the Scheme, including any Dependant or the trustees of any irrevocable trust or settlement established for his benefit;
20.7.2 constitute a trust for the benefit of the Beneficiary, the terms of which are to be decided by the Trustee as it considers appropriate and in accordance with Clause 21; or
20.7.3 make any election or deem as given any notice required under this Definitive Deed on behalf of the Beneficiary concerned.
20.8 For the purposes of Clause 20.7, the Trustee may accept as conclusive evidence of a Beneficiary's state of health the opinion of a qualified medical practitioner.
20.9 No interest shall accrue on any amount payable under this Definitive Deed that is paid after its due date unless otherwise specified in this Definitive Deed.
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21. PAYMENT OF DEATH BENEFITS: DISCRETIONARY TRUSTS
21.1 Following the death of a Member, the Trustee must apply a Member’s Account at its discretion for the benefit of one or more of the persons defined in Clause 21.2 ("Death Benefit Class"), in such shares as the Trustee decides.
21.2 For the purposes of this Clause, the Death Benefit Class means any of the following in connection with a deceased Member (but the Trustee is not required to identify every person who falls within the Death Benefit Class):
21.2.1 a surviving Relative;
21.2.2 a person who in the Trustee’s opinion was a Dependant of the Member at the date of his death;
21.2.3 a person or body (including an unincorporated association and the trustees of another trust) nominated by the Member in writing to the Trustee before his death as a potential recipient of a lump-sum death benefit, provided the Member supplies particulars sufficient to enable the Trustee to identify the individual or body concerned to their satisfaction;
21.2.4 his personal representatives; or
21.2.5 any other person entitled to an interest in his estate (except the Crown, the Duchy of Lancaster or the Duchy of Cornwall).
21.3 In applying all or part of any lump-sum death benefits under Clause 21.1, the Trustee may establish a separate trust by declaration of trust in writing and appoint separate trustees to hold all or any part of the benefits, on such terms as the Trustee considers appropriate. A declaration of trust executed under this Clause may provide for:
21.3.1 the benefits to be payable at such age or ages and in such shares as the Trustee thinks fit, whether payable absolutely or for such period and with such gifts over and subject to such discretionary trusts, powers and provisions generally as the Trustee considers appropriate;
21.3.2 the power to appoint new, additional or replacement trustees to be vested in such persons as the Trustee may specify; and
21.3.3 the power to invest the lump-sum death benefits to be varied as the Trustee may specify.
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21.4 If the Trustee does not exercise its power under Clause 21.1 within three months after first becoming aware of the Member's death, it may add interest to any Member's Account due at the base rate applying to the Trustee’s bank account (or such other rate as the Trustee may decide), provided this is consistent with the Scheme's status as a Registered Pension Scheme.
21.5 If or to the extent that the Trustee does not exercise its power under Clause 21.1 within two years of the date the Trustee first knew of the Member's death (or, if earlier, the date the Trustee could first reasonably be expected to have known of it), the Trustee must pay an amount equal to the unapplied Member's Account to the deceased Member's personal representatives, provided that if such payment would be made to the Crown, the Duchy of Lancaster or the Duchy of Cornwall, the Trustee may hold the amount on the trusts of the Scheme and apply it for the general purposes of the Scheme such money being applied to the Reserve Fund.
21.6 The Trustee or any separate trustees appointed under this Clause may deduct from the Member’s Account all costs, charges and expenses incurred in the execution of the trust and may receive such reasonable remuneration for its services as is provided under this Definitive Deed (or the declaration of trust appointing separate trustees as the case may be).
21.7 The Trustee may deduct from any Member's Account on a Member's death the amount of any funeral expenses incurred for the Member by any person and pay a sum equal to such expenses to that person.
22. PROHIBITION ON ASSIGNMENT AND FORFEITURE OF BENEFITS
22.1 Subject to Clause 22.2, Clause 22.3 and sections 91 and 92 of the PA 1995, a benefit or prospective benefit under the Scheme is forfeited and no longer payable if:
22.1.1 a person entitled to the benefit assigns or charges the benefit (or tries to do so); or
22.1.2 an event occurs (other than the making of an order by a competent court) by which all or part of the benefit or prospective benefit would become payable to some other person, were it not for this Clause.
22.2 If a benefit or prospective benefit is forfeited under Clause 22.1, the Trustee may apply some or all of the benefit or prospective benefit otherwise due to support and maintain the Beneficiary or
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any Dependant, but the Trustee must make no payment in favour of an assignee or chargee (or purported assignee or chargee).
22.3 This Clause does not apply following an assignment of all or part of a Member's benefits or rights to benefits under the Scheme to his Ex-partner to the extent necessary to comply with a Pension-sharing Order or an Earmarking Order (or the assignment of all or part of the Ex-partner benefits or rights to benefits under the Scheme to his Ex-partner to the extent necessary to comply with a Pension-sharing Order or Earmarking Order).
23. REDUCING BENEFITS BECAUSE OF A CHARGE, LIEN OR SET-OFF
23.1 The Trustee may impose a charge, lien or set-off on a Member's benefits (whether or not already in payment):
23.1.1 if the Member is liable to pay a sum to his Employer or the Scheme as a result of a criminal, fraudulent or negligent act or omission by him; and
23.1.2 if the Member is also a Trustee and he commits a breach of trust for which he is not granted relief by the court under section 61 of the TA 1925.
23.2 If a charge, lien or set-off has been imposed under Clause 23.1, the Trustee may reduce the Member's Account by an amount equal to the debt owed to the Scheme or the Employer on the date the debt arose. If the debt exceeds the value of the Member's Account, benefits must be stopped. In deciding the reduction to make, the Trustee may take into account the value of the Member's Account, but the Trustee must not reduce the following benefits:
23.2.1 benefits payable following a transfer payment to the Scheme; and
23.2.2 benefits payable to a Nominated Dependant.
23.3 The Trustee must certify to the Member in writing the amount of the debt due to the Scheme or the Employer and the amount by which his benefits have been or will be reduced.
23.4 If the Member disputes the charge, lien or set-off, the Trustee must not reduce his Member’s Account until the debt due to the Scheme or the Employer has become enforceable under a court order or an award of an arbitrator.
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24. TRUSTEE LIABILITY: LIMITATIONS
24.1 The Trustee is not liable for any Trustee Liability arising from:
24.1.1 any fall in the market value of the Scheme Assets from time to time;
24.1.2 any failure by a Member to receive his benefits due under the Scheme if this failure is attributable to the method by which benefits are paid;
24.1.3 the payment of any benefits due under the Scheme to the wrong person;
24.1.4 any failure to recover overpayments of pension instalments made to a Member after the Member has stopped being entitled to receive a pension; or
24.1.5 any failure to ensure the safety of any documents of title deposited by the Trustee with a custodian or otherwise;
24.1.6 any act or omission of a nominee, agent or person to whom the Trustee has delegated any of its powers under Clause 12.2; or
24.1.7 any personal liability for breach of trust that is exempted under Clause 25 or for which the Trustee is granted relief by the court under section 61 of the TA 1925.
24.2 The Trustee is not obliged to take any steps to recover any loss arising as a result of any of the acts or omissions referred to in Clause 24.1.
25. TRUSTEE LIABILITY: EXEMPTION
25.1 Subject to Clause 25.2, a Trustee Officer is not personally liable for any Trustee Liability arising from breach of trust under the Scheme unless the breach is caused by:
25.1.1 his fraudulent or dishonest conduct; or
25.1.2 his wilful neglect or default.
25.2 The application of Clause 25.1 is limited as follows so that:
25.2.1 Clause 25.1 only applies to personal liability for any Trustee Liability to the extent this is not rendered void under section 235 of the CA 2006;
25.2.2 a Trustee Officer who commits a breach of trust in reliance on the advice or opinion of any professional adviser
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appointed by the Trustee or any information supplied to the Trustee by an Employer is not personally liable for any loss to the Scheme arising from the breach unless the breach is caused by his fraudulent or dishonest conduct or his wilful neglect or default;
25.2.3 a Trustee Officer who is in the business of providing trustee services for remuneration is also liable for any breach of trust caused by his negligence; and
25.2.4 Clause 25.1 does not apply in the case of any breach of an obligation on a Trustee Officer to take care or exercise skill in the performance of investment functions under section 33 of the PA 1995. But a Trustee Officer is not personally liable for any loss to the Scheme arising from the acts or defaults of an investment manager appointed under Clause 19, provided that the Trustee has taken reasonable steps to satisfy itself that the investment manager:
(a) has the appropriate knowledge and experience for managing investments of the type held by the Scheme;
(b) is carrying out his work competently; and
(c) is otherwise complying with section 36 of the PA 1995.
25.3 The Trustee may protect itself and any Trustee director from any Trustee Liability by purchasing an insurance policy. The premiums due under any such insurance policy shall be paid by the Company.
26. REPLACEMENT COMPANY
26.1 Any company may by deed agree with the Trustee and the Company that it shall take the place of the Company for all the purposes of the Scheme. Unless the Company has been dissolved or wound up, it must consent to the substitution.
26.2 If the Company has been dissolved or wound up without the substitution of another company under Clause 26.1, any requirement in this deed for the Company to execute any document, give its consent or approval or take any other action does not apply, and the Trustee may act alone in any such situation.
26.3 No provision of this Definitive Deed may be construed as imposing on an Employer a contractual obligation to restrict the right of an
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Employer to terminate an Employee's service. Nor may any provision of this Definitive Deed be used to increase damages or compensation sought by an Employee in any action, counter-claim or proceedings brought by an Employee against an Employer about the termination of his employment.
26.4 Subject to Clause 5, the Company may ratify, alter or revoke any decision taken by it concerning the Scheme (including any exercise of discretion and any administrative act or omission) if it considers that doing so would not have a materially detrimental effect on the Scheme (including on the benefits paid to a Member), provided that if the Trustee's consent to a decision or act was required, the Trustee's consent must be obtained to any ratification, alteration or revocation of the Company's initial decision.
27. EMPLOYERS: ADMISSION TO THE SCHEME
27.1 Subject to Clause 27.3 and Clause 27.4, at the direction of the Company the Trustee must admit any person as an Employer, provided this does not prejudice the Scheme's status as a Registered Pension Scheme or as a qualifying automatic enrolment scheme for the purposes of the PA 2008.
27.2 A new Employer must execute a participation agreement substantially in the form appearing at Schedule 2 ("Participation Agreement") with the Company and the Trustee and must covenant with the Trustee that it will discharge the duties and obligations imposed on it as an Employer under this Definitive Deed and under the PA 2008 and all accompanying regulations relating to automatic enrolment of its Employees including but not limited to the Automatic Enrolment Regulations.
27.3 An Employer may be admitted under Clause 27.1 on special terms determined by the Company and the Trustee, including in connection with the calculation of contributions and benefits for Members, provided these do not prejudice the status of the Scheme as a Registered Pension Scheme or the Scheme’s status as a qualifying automatic enrolment scheme under the PA 2008 (to the extent those provisions apply to it at the admission date.
27.4 The Trustee must not admit a company as an Employer if it fails to provide such client identification material as is requested by the Trustee, to it, (or if the Trustee is not the scheme administrator, by the scheme administrator for the time being), to it.
27.5 An Employer must take all steps required by the Trustee that are necessary for the running of the Scheme, including providing to
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the Trustee any information it reasonably requests for use in running the Scheme.
27.6 An Employer must pay contributions to the Scheme in accordance with the Rules.
27.7 If the Company and Trustee issue a written notice stating that an Employer shall cease to participate in the Scheme, the relevant Employer will cease to participate one month from the date of that written notice and the provisions of Clause 33 shall apply.
27.8 The Trustee must keep records of the Employers, including the dates on which an Employer began to participate and, if appropriate, stopped participating in the Scheme.
28. EMPLOYERS: CEASING PARTICIPATION
28.1 An Employer shall cease to participate in the Scheme and the provisions of Clause 33 shall (subject to Clause 28.2) immediately apply (as if the provisions therein apply to the relevant E mployer’s Section only and as if the references to “Clause 32” read “Clause 28”) upon the occurrence of any of the following events:
28.1.1 if the Employer gives written notice to the Trustee and Company stating that it shall cease to participate in the Scheme;
28.1.2 if the Trustee resolves to wind-up the Scheme in accordance with Clause 32.1;
28.1.3 if the Employer is liquidated, dissolved or ceases to carry on business or an administrator, receiver or administrative receiver is appointed to the Employer;
28.1.4 contributions to the Scheme remain unpaid by an Employer for a period of 3 months;
28.1.5 the Trustee determines that there are no Beneficiaries of an Employer’s Section surviving;
28.1.6 a continuing failure on the part of the Employer to observe and perform its obligations under the Definitive Deed within such period that the Trustee has required the Employer to do so including but not limited to any failure to meet the costs of the Scheme in accordance with Clause 29.3 below.
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28.2 An Employer that has given written notice in accordance with Clause 28.1.1 shall cease to participate in the Scheme one month after the date of the notice.
29. EXPENSES
29.1 The Company may charge such fees as it shall determine necessary for the provision of the Scheme from time to time (and as notified to the Trustee) provided that it notifies Employers and Members when they first become Members of the Scheme of the initial level of charges payable with such notification to be provided at least once annually thereafter.
29.2 All fees payable to the Company from a Member’s Account in respect of a Member shall be paid by the Trustee on such basis as shall be determined by the Company from the relevant Employer Fund by deduction from the relevant Member’s Account.
29.3 An Employer shall pay such fees as the Company and the Trustee determine from time to time to meet any costs, charges and expenses incurred in connection with the relevant Employer's Section under the Scheme including (but not limited to) those relating to the appointment of professional advisers, administrators, delegates and investment managers under this Definitive Deed (except for any fees applicable to a Member's Account only under Clause 29.1).
29.4 In the event that an Employer refuses to pay the costs outlined within Clause 29.3 within a period of 3 months from the date of invoice, any such costs, charges and expenses shall be deducted on a pro-rata basis from the Employer Section’s Member's Accounts.
29.5 An individual that is a professional trustee and is engaged in the business of providing trustee services to the Scheme for payment may charge for its services on such terms as it may agree with the Company.
29.6 An individual who is a solicitor or other professional person may charge the Company for his fees and expenses incurred in the administration or management of the Scheme on such terms as he may agree with the Company.
30. TRANSFERS OUT
30.1 Subject to the requirements of the FA 2004 and the Transfer Value Laws and maintaining the Registered Pension Scheme status of the Scheme, the Trustee may, with or without consent (provided such transfer is permitted by relevant legislation) transfer assets
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or money comprising a Member’s Account to another Registered Pension Scheme or qualifying recognised overseas pension scheme (within the meaning of section 169 of the FA 2004) so that benefits will be provided under that other scheme for any Member or other Beneficiary under the Scheme (or any group of Members or other Beneficiaries under the Scheme) who would otherwise have received benefits under the Scheme. Such transfer may be in respect of some or all of the benefits which would otherwise have been provided under the Scheme for the relevant Member or other beneficiary. Any transfer must be in accordance with the Preservation Laws, Transfer Value Laws and the Contracting-out Laws to the extent applicable and other relevant laws.
30.2 If the Trustee proposes to make a transfer to another scheme or arrangement without obtaining the consent of the Member(s) or other Beneficiaries concerned, the Trustee shall inform the Member(s) or other beneficiaries about the proposed transfer according to the requirements of the Preservation Laws, Transfer Value Laws and the Contracting-out Laws to the extent applicable and other relevant laws.
30.3 The amount that the Trustee transfers shall be such as the Trustee shall determine.
30.4 The receipt of the accepting trustees or managers shall discharge the Trustee from liability to provide benefits under the Scheme for and in respect of the persons or people concerned to the extent such benefits were reckoned by the Trustee when determining the appropriate transfer to be made or paid.
31. TRANSFERS IN
31.1 Subject to the requirements to maintain the Scheme’s status as a Registered Pension Scheme, the Trustee shall at the request of an Employer (and subject to any such request may at their discretion) accept a transfer of assets or money in respect of a person from another Registered Pension Scheme, or other scheme or arrangement the receiving of a transfer of assets or payment from which would not potentially prejudice Registration of the Scheme. The Trustee shall provide such benefits consistent with the Preservation Laws, Revaluation Laws and Transfer Value Laws and with the requirements for the security of Registration as they decide. If the transferred assets represent GMPs or protected rights, the benefits the Trustee provides shall also be consistent with the Contracting-out Laws
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32. WINDING UP THE SCHEME
32.1 The Trustee with the Company’s consent may at any time resolve that the Scheme is to be wound up. On the making of a resolution to wind up the Scheme, Clause 33 and of the Definitive Deed will apply in respect of every Employer Section and the Initial Fund shall be returned to the Company.
33. TERMINATION OF EMPLOYER SECTIONS
33.1 If Clause 32 applies, the Trustee shall arrange for all Active Members, Deferred Members any other Beneficiaries specified in regulations made under section 113 of the PSA 1993 who are affected to be notified in writing within any time period specified within such regulations.
33.2 If Clause 32 applies, the Trustee shall:
33.2.1 apply under Rule 8 a Member's Account which was due to be applied under that Rule before the winding-up started, but which the Trustee has not applied at the date of determination of the Scheme;
33.2.2 apply under Rule 10 any sum held by them as a death benefit under that Rule; and
33.2.3 make appropriate arrangements to pay any benefit they are holding for a person unable to act.
33.3 After making provision for the actions required under Clause 33.2 the Trustee shall, before applying an Employer Fund towards the provision of benefits under the remainder of this Clause 33.3, make provision out of the Employer Fund for the costs and expenses of winding-up that in their opinion they will be unable to recover from, or will not be paid by, an Employer.
33.4 The Trustee shall identify all Members whose Member’s Accounts have not been applied under Clause 33.2. The Trustee shall then calculate the value standing to the Members’ Accounts.
33.5 The Trustee shall apply a Member’s Account in one or more of the following ways, subject to the alternative provisions of Clause 33.9:
33.5.1 as a transfer payment to a receiving scheme or other arrangement under Clause 30;
33.5.2 in the payment of a cash sum to a Member who is entitled to an immediate cash sum; and
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33.5.3 to buy a Benefits Policy in respect of the Member if the Member is entitled to immediate benefits.
33.6 If the Trustee applies a Member’s Account to buy a Benefits Policy it shall arrange for the Benefits Policy to be issued in the name of the Member (or in the name of trustees for his benefit) by the Insurer. Such a Benefits Policy shall provide such of the benefits specified in Rule 8 as the Member chooses. If a Member does not make a choice within any reasonable period that the Trustee may decide and notify to Members, Rule 8.8 will apply and the Trustee shall choose the benefits as set out in that Rule.
33.7 A Member is entitled to immediate benefits for the purposes of Clauses 33.5.2 and 33.5.3 if he satisfies any conditions set out in Rule 8 or 9 for benefits to be payable immediately either automatically or at the Member’s request, either on retirement from Service or after leaving the Scheme.
33.8 The Trustee shall not be responsible if any benefit from a Benefits Policy is reduced as a result of the payment of any commission by the Insurer to any person in relation to that policy.
33.9 The Trustee may pay a Member (or a Dependant in receipt of pension) a cash sum in accordance with and subject to Rules 8.6 (Serious Ill-health) or 8.7 (trivial pensions) or in accordance with and subject to paragraph 10 or 21 of Schedule 29 to the FA 2004 as a Winding-up Lump Sum or winding-up lump sum death benefit instead of purchasing a Benefits Policy for such Member or such dependant in accordance with this Clause 33.
33.10 The Trustee shall ensure that no costs or expenses are deducted from any part of that represents Members’ voluntary contributions except those specifically in relation to the realisation and distribution of the Employer Fund in respect of those contributions.
33.11 Regardless of anything to the contrary in this Clause or in Clause 32, on the winding up of an Employer Section, the Trustee will have power, at its discretion, with the consent of any other person, to apply the Employer Section assets (after setting aside such an amount in connection with costs and expenses as is mentioned in Clause 33.3) by transferring the whole of the assets to the trustee or administrator of a relevant scheme in which an Employer is then participating (the "New Scheme").
33.12 On such transfer payment being made, all rights to benefit under the Scheme of all Beneficiaries will cease.
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33.13 The Reserve Fund may be applied by the Trustee to cover any costs not met by Employers in winding the Scheme or Employer Section up.
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SCHEDULE 1: RULES
1. INTERPRETATION OF SCHEME RULES
1.1 This Schedule shall be interpreted in accordance with Clause 1.4 of the Definitive Deed.
2. JOINING THE SCHEME AND ACCRUING BENEFITS
2.1 An Eligible Jobholder shall be automatically enrolled as an Active Member on his Automatic Enrolment Date, unless:
2.1.1 he opts out of Pensionable Service under Rule 12.2; or
2.1.2 the Employer with which he is in Service chooses to postpone his automatic enrolment in the Scheme, in which case the Eligible Jobholder will be automatically enrolled as an Active Member on his Deferral Date unless he opts into Pensionable Service before his Deferral Date in accordance with Rule 12.4; or
2.1.3 the Eligible Jobholder is employed under a contract of employment for a term of less than three months.
2.2 In accordance with the restrictions in Section 7 of the PA 2008 the Trustee shall enrol a Jobholder as an Active Member if that Jobholder has provided an Opt-in Notice in accordance with Section 7(3) of the PA 2008 and Regulation 18 of the Automatic Enrolment Regulations and the Employer has instructed the Trustee in writing to admit that Jobholder to the Scheme.
2.3 Notwithstanding the provisions of Rules 2.1 and 2.2, the Trustee shall enrol any worker as an Active Member following written confirmation from the Employer that:
2.3.1 the worker meets the requirements of Section 9(1) PA 2008;
2.3.2 the worker has complied with Section 9(2) of the PA 2008; and
2.3.3 the Employer confirms that it is content for the worker to participate in the Scheme.
2.4 The provisions of Rules 2.1 to 2.3 shall not apply to an Employer which has not passed its staging date but which wishes to participate in the Scheme and such of its employees as it may specify shall be admitted to membership following execution of the Participation Agreement. For the avoidance of doubt, the
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provisions of Rules 2.1 to 2.3 shall apply immediately upon that Employer reaching its staging date.
3. OPTING OUT OF THE SCHEME WHILE IN SERVICE
3.1 Subject to Rules 12.2 in accordance with the provisions of the PA 2008 and the Automatic Enrolment Regulations at any time while he is in Pensionable Service an Active Member may opt out of Pensionable Service by giving at least one month's notice in writing to the Trustees.
3.2 If the Pensionable Service of an Active Member who opts out under Rule 3.1:
3.2.1 exceeds two years, he becomes a Deferred Member from the day after the date on which his Pensionable Service is deemed to end and is subject to the provisions of Rule 9.1;
3.2.2 is less than two years, the Active Member is treated as having left the Scheme on the day after the date on which his Pensionable Service is deemed to end, but is entitled to receive a Contribution Refund or Cash Transfer Sum in accordance with Rule 9.3.
3.3 If an Active Member opts out of Pensionable Service in accordance with Rule 12.2, he is entitled to receive a refund of any contributions in accordance with Rule 12.6.
3.4 The Trustee may allow an Active Member who has opted out under Rule 3.1 to re-enter Pensionable Service with the agreement of his Employer on such terms as the Employer considers appropriate.
4. ACTIVE MEMBERS' CONTRIBUTIONS
4.1 An Active Member shall pay contributions to the Scheme in each Scheme Year at the rate which the Trustee and the Employer may from time to time decide (if any) and notify to the Member in writing provided always that such contributions meet the quality requirements set out in the PA 2008.
4.2 An Active Member may make additional contributions to the Scheme to provide for additional benefits for himself and his Dependants.
4.3 The amount of contributions paid under Rule 4.2 may vary and payment of any such contributions shall be subject to any terms and conditions that the Trustees may from time to time determine.
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4.4 Any additional benefits provided by contributions under Rule 4.2 will be money purchase benefits and shall be deducted from his earnings by his Employer.
4.5 All Active Members’ contributions shall be allocated to the relevant Member’s Account by the Trustee.
5. EMPLOYER CONTRIBUTIONS
5.1 An Employer shall pay contributions to the Scheme in each Scheme Year at the rate which the Trustee and the Employer may from time to time decide and notify to the Active Member in writing provided always that an Employer shall be liable to meet the shortfall of any contributions made by an Active Member in order to meet the quality requirements under the PA 2008 and the Automatic Enrolment Regulations.
5.2 All Employer contributions made in respect of Active Members shall be allocated to the relevant Member’s Account by the Trustees.
6. PAYMENT SCHEDULE
6.1 Where required by the PA 1995, the Trustee shall prepare, maintain and may, from time to time revise a payment schedule showing the rates and due dates of contributions payable to each Employer Section by or on behalf of the Employers and the Active Members which meets the requirements of Section 87 of the PA 1995.
7. PAYMENT OF CONTRIBUTIONS
7.1 Active Member contributions shall be payable from the date on which he first becomes an Active Member and will be payable by equal weekly or monthly instalments or otherwise as the Trustee decides and shall be remitted by the Employer to the Trustee in accordance with the timeframes set out in the PA 1995.
7.2 No contributions shall be payable or may be paid by an Active Member after the date upon which his Pensionable Service ends except contributions relating to Pensionable Service before the date on which it ended.
7.3 Contributions during Maternity Leave, Paternity Leave, Adoption Leave and Unpaid Family Leave shall be made as agreed between the Employer and the Active Member and as notified to the Trustee provided always that no such contributions or agreement shall prejudice the status of the Scheme as a qualifying automatic enrolment scheme.
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8. RETIREMENT BENEFITS
8.1 At his Normal Pension Age and following the Member’s request the Trustee shall apply the sum standing to the credit of a Member in his Member's Account to:
8.1.1 purchase an immediate pension for the Member payable through an annuity or insurance contract;
8.1.2 purchase a pension payable through an annuity or insurance contract for one or more of the Member's Dependants;
8.1.3 provide a Pension Commencement Lump Sum; or
8.1.4 such other benefit as may be permitted and which would constitute an authorised payment for the purposes of the FA 2004.
8.2 In the alternative, a Member may elect that any amounts standing to the credit of the Member's Account which have not been applied towards the provision of any other benefit under these Rules shall be designated as available for the provision of Drawdown under Rule 11 below ("Drawdown").
8.3 A Member shall notify the Trustee in writing as to which of the options set out in Rule 8.1 he wishes them to provide 3 months prior to his Normal Pension Age or such other date as may have been agreed between the Trustee and the Member.
8.4 Notwithstanding the Member’s election under this Rule 8, any benefit to which a Member is entitled shall be restricted as is necessary to ensure that it is not an Unauthorised Member Payment.
8.5 A Member shall be entitled to choose the Insurance Company from which any annuity is to be purchased, in accordance with any terms which the Trustee may notify to Members from time to time.
8.6 If a Member retires from Service in circumstances of Serious Ill-health as defined in Schedule 29 of the FA 2004 the Trustee may pay a Serious Ill-health Lump Sum in settlement of his entitlement under the Scheme.
8.7 The Trustee may, at its absolute discretion, pay to a Member a Trivial Commutation Lump Sum provided the payment of such sum meet the conditions set out in paragraph 20 of Schedule 29 to the FA 2004.
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8.8 If a Member fails to notify the Trustee of the benefits to be provided under Rule 8.3 within the specified period, the Trustee shall apply the Member's Account as follows:
8.8.1 the Trustee shall pay to the Member a Pension Commencement Lump Sum of the maximum permitted for such a lump sum for the purposes of paragraph 2, Schedule 29 of the FA 2004, and provided that no Unauthorised Payment shall be made, the Trustee shall apply the balance of the Member’s Account to provide:
(a) a pension payable to the Member for life, with a guaranteed period of five years, which may be effected on the basis that it shall increase at such rate as the Trustee shall determine
(b) that the pension referred to in Rule 8.8.1(a) shall be payable by monthly instalments commencing at Normal Pension Age.
(c) a pension for the Member’s Spouse or Civil Partner for his or her lifetime from the date of the Member’s death in such amount as the Trustee shall determine.
9. BENEFITS FOR EARLY LEAVERS
9.1 If an Active Member leaves Service (or withdraws from Pensionable Service while remaining in Service) before Normal Retirement Date, other than on death or retirement on pension, and has completed at least two years’ Pensionable Service, he will become a Deferred Member.
9.2 A Deferred Member under Rule 9.1 shall be entitled to have the value of his Member’s Account applied at any time after Normal Minimum Pension Age in accordance with Rule 8 when he notifies the Trustee that he wishes to receive his benefits under that Rule.
9.3 If at the date of leaving Service (or withdrawing from the Scheme while remaining in Service), a Member is not entitled to a preserved pension in accordance with Rule 9.1:
9.3.1 if he has completed three months’ Pensionable Service and satisfies the requirements of section 101AA of the PSA 1993, he may choose a Cash Transfer Sum provided for in, and payable in accordance with the requirements of the PSA 1993. If he does not, the Trustee will pay a Contribution Refund to the Member in the circumstances described in Section 101AH of the PSA 1993; or
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9.3.2 If he has not completed three months’ Pensionable Service he will receive a refund of his contributions to the Scheme, including that part of any transfer payment which is certified as representing members' contributions.
10. DEATH BENEFITS
10.1 On the death of an Active Member or Deferred Member before any benefit has been paid in respect of him, the amount standing to the credit of the Member’s Account must be applied in accordance with Clause 21 of the Definitive Deed. Any part of the Member’s Account that cannot be paid under this Clause as an Authorised Member Payment shall be used to purchase annuities for the Member's Spouse and Dependants in whatever proportions the Trustee, in its absolute discretion, decides.
11. DRAWDOWN
11.1 Where this Rule applies. the Trustee shall create a Drawdown Fund in place of the Member's Account (of the same value of the Member's Individual Account at the date the Drawdown Fund is created) from which the Trustee shall pay out to the Member such amount (and at such times) as the Member may specify, provided that:
11.1.1 no payment shall be made if it would not qualify by law as an amount that can be made by a Drawdown Fund, and
11.1.2 the Trustee may impose such restrictions as to timing and minimum and maximum amounts of payments or otherwise as they may reasonably consider appropriate.
11.2 For the avoidance of doubt, on the death of a Member for whom benefits are held in a Drawdown Fund, the Trustee shall apply the value of the Drawdown Fund to the provision of benefits in accordance with Clause 21.
11.3 Where a Drawdown Fund has been made available for one or more Beneficiaries and upon their subsequent death, the Trustee may administer the benefits payable as a consequence of the Dependant's death on the basis that that individual is in fact a Member whose benefits on death are to be applied in accordance with Clause 21.
12. AUTOMATIC ENROLMENT
12.1 Within six weeks after the Automatic Enrolment Date of an Eligible Jobholder automatically enrolled in the Scheme in accordance with Rule 2.1, the Employer with which the Eligible Jobholder is in
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Service must provide the Trustee with the information about the Eligible Jobholder referred to in regulation 3 of the Automatic Enrolment Regulations, unless the Trustee notifies the Employer in advance that it does not require this information (either generally or with reference to a particular Eligible Jobholder).
12.2 An Eligible Jobholder who has been automatically enrolled in the Scheme in accordance with Rule 2.1, or automatically re-enrolled in the Scheme in accordance with Rule 12.7 may opt out of Pensionable Service by giving an Opt-out Notice to the Employer with which he is in Service within one month of the later of:
12.2.1 his Automatic Enrolment Date or Automatic Re-enrolment Date as the case may be;
12.2.2 the date on which he received from the Employer with which he is in Service the enrolment information required under regulation 2 of the Automatic Enrolment Regulations.
12.3 An Employer must inform the Trustee as soon as reasonably practicable if they receive an Opt-out Notice in relation to an Eligible Jobholder under Rule 12.2. If informed by the Employer, the Trustee will treat the Eligible Jobholder as not having become an Active Member on this occasion.
12.4 The Trustee will admit as an Active Member an Eligible Jobholder who opts into Pensionable Service before his Deferral Date by giving an Opt-in Notice to the Employer with which he is in Service. The Employer must notify the Trustee as soon as reasonably practicable if it receives an Opt-in Notice from an Eligible Jobholder.
12.5 The Trustee will admit as an Active Member a Jobholder who opts into Pensionable Service by giving an Opt-in Notice to the Employer with which he is in Service. The Employer must notify the Trustee as soon as reasonably practicable if they receive an Opt-in Notice from a Jobholder.
12.6 If an Eligible Jobholder opts out of Pensionable Service under 12.2 after being automatically enrolled in the Scheme:
12.6.1 the Employer must refund to the Eligible Jobholder any contributions made to the Scheme by the Eligible Jobholder within one month of the date on which the Eligible Jobholder gave a valid Opt-out Notice to his Employer or, if a valid Opt-out Notice is given to the Employer after its payroll arrangements have closed for the Applicable Pay Reference Period, the last day of the
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next Applicable Pay Reference Period following the date on which a valid Opt-out Notice is given; and
12.6.2 provided the Employer with which the Eligible Jobholder is in Service has informed the Trustees that it has received an Opt-out Notice, the Trustee must refund to the Employer any contributions made to the Scheme by the Eligible Jobholder within one month of the date on which the Eligible Jobholder gave a valid Opt-out Notice to his Employer or, if a valid Opt-out Notice is given to the Employer after its payroll arrangements have closed for the Applicable Pay Reference Period, the last day of the next Applicable Pay Reference Period following the date on which a valid Opt-out Notice is given.
12.7 An Eligible Jobholder who opted out of Pensionable Service under Rule 12.2 will be automatically re-enrolled as an Active Member on his Automatic Re-enrolment Date, unless he again opts out under Rule 12.2.
13. PENSION SHARING ON DIVORCE
13.1 The Trustee will discharge any liability for a Pension Credit by making a transfer to a Qualifying Arrangement provided that:
13.1.1 If the Ex-partner dies before such transfer is effected; or
13.1.2 If the transfer can only be effected with the consent of the Ex-partner and such consent has not been obtained,
the Trustee shall secure such benefits as it may at its absolute discretion determine subject only to relevant statutory requirements.
13.2 The Trustee will give full details of the Pension Debit to the receiving scheme or arrangement where the Member's Account for a Pension Debit Member is transferred to another scheme.
13.3 Where the Trustee accepts a transfer payment and are informed by the transferor of the details of a Pension Debit relating to the transfer payment the Trustee may take account of the Pension Debit if appropriate in the calculation of any limit on benefits of that Member.
13.4 If an Ex-partner dies after a Pension-sharing Order is made but before it is acted upon by the Trustee, the Trustee shall apply such sum to the benefit of such individuals as it, in its discretion determines provided always that such payment is permitted by law.
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13.5 The Trustee may deal with an Earmarking Order in such manner as it shall in its absolute discretion decide provided always that it they act in accordance with relevant legislation.
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THE AUTOENROLMENT.CO.UK MASTER TRUST
SCHEDULE 2: PARTICIPATION AGREEMENT
SMART PENSION LIMITED incorporated and registered in England and Wales with company number 09026697 whose registered office is at 20 Eastbourne Terrace, London, W2 6LG ("Company"). EC2 MASTER LIMITED incorporated and registered in England and Wales with company number 9352674 whose registered office is at One London Wall, London, EC2Y 5AB ("Trustee"). [FULL COMPANY NAME] incorporated and registered in [ENGLAND & WALES] [SCOTLAND] [NORTHERN IRELAND] with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] ("New Employer"). 1. The Scheme is governed by a definitive deed dated 21st January 2015
made between the Company and Trustee (the "Definitive Deed") and this agreement is supplemental to the Definitive Deed.
2. By executing this agreement the New Employer agrees to be bound by the
terms of the Definitive Deed and to perform its obligations thereunder including but not limited to the following provisions: 2.1 the payment of fees in accordance with Clause 29; 2.2 the payment of Employer contributions under Rule 5 2.3 the provision of information to the Trustee relevant to Eligible
Jobholders in accordance with Rule 12; and 2.3 the provision of notification of receipt of an Opt-out Notice in
accordance with Rule 12.3. 3. The New Employer hereby confirms that it has considered the terms of the
Scheme and, on the basis of its terms, wishes to enter into this agreement.
4. Notwithstanding Clause 2 above, the New Employer covenants with the
Trustee and Company that it will discharge the duties and obligations imposed upon it as a Participating Employer under the Definitive Deed and that it will discharge its duties and obligations under the PA 2008 and the Automatic Enrolment Regulations (and all other relevant legislation) in order to maintain the status of the Scheme as a qualifying automatic enrolment scheme and in order to comply with its duties thereunder.
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5. The New Employer acknowledges that failure to adhere to the terms of the Definitive Deed will result in it ceasing to participate in the Scheme.
6. The New Employer acknowledges that the terms of this agreement and the
Definitive Deed may need to modified to comply with legislative amendments from time to time and hereby agrees to be bound by such changes notwithstanding that they are not expressly included herein.
7. The New Employer shall be admitted following receipt of satisfactory client
identification documentation as notified to it by the Company from time to time.
8. Subject to Clause 7 of this agreement and following electronic signature of
this agreement, the Trustee and Company consent to the admission of the New Employer as a Participating Employer in the Scheme.
9. This agreement and any dispute or claim arising out of or in connection
with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
10. Each party irrevocably agrees that the courts of England and Wales shall
have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
11. This agreement may be executed in any number of counterparts, each of
which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
12. Transmission of an executed counterpart of this agreement (but for the
avoidance of doubt not just a signature page) or the executed signature page of a counterpart of this agreement by (a) fax or (b) e-mail (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
13. No counterpart shall be effective until each party has executed at least one
counterpart
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Signed by:
______________________________________ Director, Smart Pension Limited
______________________________________ Director, EC2 Master Limited ______________________________________ Director, New Employer ______________________________________ Director, New Employer [Assumes two signatories – if only one signatory required, one of these fields will be removed in signature document.]
