Dated 2016
deed of AMENDMENT AND RESTATEMENT
RELATING TO THE CAYMAN ISLANDS CHAMBER
OF COMMERCE PENSION FUND
THIS DEED OF AMENDMENT AND RESTATEMENT is made on the day of 2016
BY :Loredana Branca, Peter Cockhill, Charles Dickinson, Raul Nicholson-Coe, Paul Schreiner, Nicole Makin, Rhonda Anderson and William H. Gammerdinger (together the “Trustees”)
WHEREAS:
(1)This Deed is supplemental to a Declaration of Trust dated 12 May 1992 made by the Initial Trustees which established the Cayman Islands Chamber of Commerce Pension Fund and all other supplemental deeds thereto (the "Trust” and the “Trust Deed").
(2)The Trustees have the power by deed under section 10 of the Trust Deed (the “Power”) to modify alter or add to the provisions of the Trust Deed in such manner and to such extent as they may consider expedient for any purpose PROVIDED THAT unless the Trustees shall certify in writing that in their opinion such modification alteration or addition does not materially prejudice the interests of the Members and does not operate to release the Trustees or the Administrator from any material responsibility to the Members no such modification alteration or addition shall be made without the sanction of an Extraordinary Resolution of the Members in General Meeting AND PROVIDED ALSO THAT no such modification alteration or addition shall impose upon any Contributor or Member any obligation to make any further payment or to accept any liability.
(3)The Trustees have determined that it is expedient to exercise the Power in order to amend and restate the Trust in the manner contained in this deed to become effective from the date of this deed.
ARTICLE I
Definitions
Section 1.01 - Definitions
As the context admits or requires, the following terms shall have the following respective meanings when used in this Deed;
1.01.01Additional Voluntary Contributions:
"Additional Voluntary Contributions" means Contributions made by any Member in excess of the amount the Member is required by the Pension Plan or the Law to contribute.
1.01.02Administrator:
"Administrator" means such person, firm or corporation as shall be from time to time appointed by the Trustees for the purpose for administering the Fund and the Pension Plan established by this deed and as prescribed by section 8 of the Law.
1.01.03Auditor:
"Auditor" means such firm of chartered accountants (or other similarly qualified professional persons) appointed by the Trustees pursuant to Section 7.03 below.
1.01.04Chamber:
“Chamber" means the Cayman Islands Chamber of Commerce.
1.01.05 Contributions:
"Contributions" means payments required to be made to the Fund by or on behalf of a Member in accordance with the obligations imposed on or in respect of such person under the Pension Plan.
1.01.06Contributors:
"Contributors" means all Employees, Employers, Self-Employed Members and Voluntary Members.
1.01.07Earnings:
"Earnings" means any wages, salary, leave pay (including vacation pay, sick pay and maternity benefit), fee, commission, bonus (to the extent that the bonus is equivalent to more than twenty per cent of the Employee's basic salary or wage for the period in question) or gratuity, expressed in monetary terms, paid or payable by an employer (directly or indirectly) to that Employee in consideration of employment during the Plan Year, but does not include severance payments, retirement or long service recognition payments or health insurance premiums and in the case of a Self-Employed Member, includes income of that person prescribed and calculated in accordance with the Law.
1.01.08 Employee:
"Employee" means any person on whose account any Employer is bound by a deed of adherence to the Pension Plan to make Contributions to the Fund or who is otherwise eligible for benefits as provided by the Pension Plan.
1.01.9Employer:
"Employer" means an employer of labour who is bound by a deed of adherence to the Pension Plan to make Contributions to the Fund.
1.01.10Fund:
"Fund" means the fund maintained to provide benefits under or related to the Pension Plan and includes the entire assets held by the Trustees under this Trust including all funds received in the form of Contributions, together with all interests of the Trustees in all contracts (including dividends, interest, refunds, and other sums payable to the Trustees on account of such contracts), all investments made and held by the Trustees, all income, increments, earnings and profits therefrom and any and all other property or funds received and held by the Trustees under the terms of the trusts created under this deed.
1.01.11 Incapacity:
“Incapacity” means
(1) incapacity caused by physical or mental handicap or deterioration resulting in an individual whose capacity is judged being unable to manage his own affairs or unable to understand the nature or consequences of his actions, as confirmed by the written opinion of two medical practitioners qualified to assess such matters; and
(2) any legal Incapacity deriving from age or insolvency or bankruptcy.
and “Incapacitated” shall have a corresponding meaning.
1.01.12 Inactive Account:
“Inactive Account” means a Member’s account which has not received any Contributions for a period of three (3) year(s), unless it has been otherwise agreed to suspend Contributions for a specified period.
1.01.13 Law:
"Law" means The National Pensions Law (2012 Revision) and shall include any and all statutory modifications or replacements thereof as well as any rules or regulations made under the Law.
1.01.14Member:
"Member" means any Employee (or former Employee), Self-Employed Member or Voluntary Member who has become a member of the Pension Plan and who continues to be entitled to benefits under the Pension Plan. Member excludes a person by whom or in respect of whom benefits have been transferred upon termination of participation in the Pension Plan.
1.01.15Net Asset Value:
“Net Asset Value” means the value of all assets of the Pension Plan less all liabilities and any provisions deemed prudent or necessary by the Trustees.
1.01.16Normal Retirement Date:
"Normal Retirement Date" shall be not later than one year after a person has attained sixty years of age or such other normal retirement date pursuant to the Law.
1.01.17Pension Plan:
"Pension Plan" means the plan known as The Chamber of Commerce Pension Plan established by declaration of trust dated 12 May 1992 by the Initial Trustees to provide retirement benefits to Members and their beneficiaries.
1.01.18Plan Year:
"Plan Year" means the year from 1 July to 30 June in each calendar year.
1.01.19Self-Employed Member:
"Self-Employed Member" means any person engaged in business on his own account whose Earnings derive from his production of goods or services in the Cayman Islands, or his trade in goods or services in or from the Cayman Islands and who is bound by a deed of adherence to the Pension Plan to make Contributions to the Fund.
1.01.20Secretary:
“Secretary” means secretary to the board of Trustees appointed by majority vote of the Trustees for such period as they think fit and as may be agreed with the Secretary.
1.01.21Spouse:
"Spouse": in determining whether one person is a spouse of another, the provisions of any Cayman Islands legislation shall apply.
1.01.22Superintendent:
"Superintendent" means the Superintendent of Pensions appointed under the Law.
1.01.23Trust:
"Trust" means this deed and the provisions set out herein all supplemental deeds, amendments and modifications to the Trust.
1.01.24Trustees:
"Trustees" means any persons designated as Trustees pursuant to Section 5.01 or Section 5.03 of this Trust.
1.01.25Voluntary Member:
"Voluntary Member" means any person who:
(1) wishes to contribute to the Pension Plan and whose employer has not agreed to participate in the Pension Plan;
(2) is unemployed; or
(3) is a person whose employment has been terminated by a contributing Employer but wishes to be a non-contributing Member of the Pension Plan and agrees to be bound by a deed of adherence to the Pension Plan to make Contributions to the Fund.
1.01.26Year's Maximum Pensionable Earnings:
"Year's Maximum Pensionable Earnings" means sixty thousand Cayman Islands Dollars (CI$60,000) or such amount as may be prescribed under the Law.
1.01.27 Words denoting the singular shall include the plural and vice versa.
1.01.28Words denoting any gender shall include both the other genders.
1.01.29 References to any statutory provision herein shall include any statutory modification to or re-enactment of such provision.
ARTICLE II
Creation, Purpose and Application of Trust Fund
Section 2.01 - Creation of the Trust Fund
The Trustees hereby declare that they will hold the Fund which shall be known as "The Cayman Islands Chamber of Commerce Pension Fund" upon the trusts hereinafter contained, and the Trustees shall jointly hold property, enter into contracts and act in all matters on behalf of the Trust Fund under the name of "The Cayman Islands Chamber of Commerce Pension Fund". The title to all assets of the Fund shall be jointly vested in and remain exclusively vested in the Trustees.
Section 2.02 - Purpose of the Trust Fund
Subject to the requirements of the Law, the Trustees shall have the power to use and apply the Fund for the following purposes:
2.02.01to pay or provide for the payment of benefits to Members and their beneficiaries eligible to receive same;
2.02.02to pay or provide for the payment of all reasonable and necessary expenses, costs and fees having to do with the implementation of the Pension Plan, reimbursement of reasonable expenses incurred by the Trustees under specific authority granted by resolution of the Trustees, payment of proper administration costs of the Fund, legal fees, and expenses of collecting monies and property to which the Fund may be entitled, expenses incurred in the purchase or lease of such premises, materials, supplies and equipment as the Trustees deem necessary for the performance of their duties under this deed and all reasonable expenses incurred in the performance of such other acts as the Trustees in their sole discretion deem necessary or appropriate to carry out their duties;
2.02.03to pay or provide for the payment of all taxes or assessments of any kind and all kinds levied or assessed under existing or future laws upon or in respect of the Fund or any money or property forming a part thereof; to make deposits and payments pursuant to any contract entered into by the Trustees;
2.02.04to make any deposits to a bank or trust company which through agreement with the Trustees has been empowered to make payments to Members; and
2.02.05to establish an office for the transaction of the business of the Fund and to maintain books and records pertaining to the Fund and its administration.
Section 2.03 - Limitation of Rights to Fund
2.03.01 No Employer, Member or any other person, association, firm or corporations shall have any right, title, interest in or to the assets of the Fund except as specifically provided by this deed or by the Pension Plan and the applicable rules and regulations adopted by the Trustees;
2.03.02 no part of the Fund shall be invested or lent to or for the benefit of the Trustees or the agents or employees of any of the Trustees (other than in the ordinary course of business with or to any Trustee or any Employer by whom any Trustee is employed in which event that Trustee shall declare his interest therein to the other Trustees and shall take no part in the decision to invest or lend the same and particulars of any such investment or loan shall be disclosed to the Member by the Trustees annually);
2.03.03 if any part of the Fund is invested or lent for the benefit of any Employer or Member or the agents or employees of any Employer or Member in the ordinary course of business particulars of any such investment or loan shall be disclosed to the Members by the Trustees annually;
2.03.04 no part of the Fund shall be used for or diverted for a purpose other than the establishment of and payment of benefits for Members and former members and their beneficiaries or for the purposes set out in Section 2.02 or the purchase of investments permitted under the provisions of the Pension Plan;
2.03.05 all Contributions received by the Administrator and all of the funds received by the Trustees as part of the Fund shall be deposited in such banks or trust companies as the Trustees may designate for that purpose, and all withdrawals of such funds shall be made pursuant to authorisations provided for in Section 6.01; all accounts with such banks or trust companies shall be opened in the name of, or for the account of, "The Trustees of the Cayman Islands Chamber of Commerce Pension Fund".
ARTICLE III
Contributions
Section 3.01- Payment of Contributions
3.01.01Each Employer shall make Contributions to the Fund, both for himself and on behalf of his participating Employees, and each Self-Employed Member and Voluntary Member shall make Contributions to the Fund, in such amount, on or before such dates, and under such terms as are provided for in the Pension Plan and the Law.
3.01.02All Contributions and such reports as the Trustees shall require shall be forwarded by each Contributor to the Administrator within fifteen (15) days after the relevant date specified in the Pension Plan, but in no event later than fifteen (15) days after the last day of the month in which the contribution was received or deducted from an Employee or due from the Employer or in accordance with the Law. All Contributions shall be deposited in such accounts with such bank or trust company as shall be designated and prescribed by the Trustees and the Law.
3.01.03The Employers agree that their absolute obligation to make Contributions to the Trust Fund shall not be subject to set-off or counterclaim which the Employer may have for any liability of an Employee.
Section 3.02- Interest on Contributions
Contributions made by or on behalf of Members shall be credited not less frequently than annually with such rate of return as can reasonably be attributed to the operation of the Pension Fund. Interest shall begin to accrue on the contributions of Members to the Pension Plan not later than the first day of the month following the month in which the contributions were required to be paid into the Pension Fund.
ARTICLE IV
Establishment and Acceptance of a Pension Plan
Section 4.01 - Establishment of a Pension Plan
The Trustees hereby adopt and agree to maintain the Pension Plan for the payment of benefits to Members and their beneficiaries in accordance with the provisions of Schedule 1 of this deed.
ARTICLE V
Trustees
Section 5.01- Designation of Trustees
The Trustees shall consist of nine (9) persons appointed in the manner hereinafter appearing PROVIDED ALWAYS that a majority of them shall hold Caymanian status or be permanent residents of the Cayman Islands to the extent required by the Law:
5.01.01Subject to section 5.01.05 the Chamber shall nominate and appoint a maximum of two persons to serve as Trustees from time to time.
5.01.02Subject to section 5.01.05 the Self-Employed Members and Voluntary Members shall at a meeting convened for the purpose nominate and appoint one person to serve as a Trustee.
5.01.03The remaining Members shall be divided into three (3) Groups:
i) the Hospitality and Tourism Group;
ii) the Financial and Professional Group; and
iii) the Industry and Commerce Group.
Each Member (who is not a Self-Employed Member or a Voluntary Member) shall be allocated by the Trustees to the particular Group which in the opinion of the Trustees is most closely affiliated with the business conducted by his or her Employer. Subject to section 5.01.05 the Members of each Group shall at a meeting convened for the purpose nominate and elect persons to serve as Trustees PROVIDED that no two persons nominated and elected as Trustees may be from the same Employer.
5.01.04A Trustee must be a Member of the Pension Plan at the time of his or her appointment as Trustee.
5.01.05Each Trustee shall serve for a term of three (3) years and have an option to serve for one additional term of three (3) years provided that such trustee is re-appointed or re-elected in accordance with sections 5.01.01, 5.01.02 or 5.01.03 to serve an additional term of appointment. Should a Trustee have served for a period of six (6) years in any ten (10) year period, such Trustee shall not be eligible for re-appointment as Trustee until five (5) years have elapsed since he ceased to be a Trustee.
Section 5.02 - Resignation, Removal, Death or Incapacity of Trustees
5.02.01A Trustee may resign and be fully discharged from all future duty or responsibility by giving sixty (60) days prior notice in writing to the remaining Trustees, which notice shall specify the date on which such resignation shall take effect and such resignation shall take effect on such date or on such earlier date as a successor Trustee shall have been appointed.
5.02.02A Trustee shall be removed from office if he shall be found to be incapacitated or if he is convicted of any offence involving dishonesty. A Trustee shall also be removed should he or she become employed at any time by an Employer who is not bound by a deed of adherence to the Pension Plan.
5.02.03In the event of the death, resignation, removal or incapacity of a Trustee, such Trustee shall be fully discharged from all future responsibilities and duties and shall incur no future liabilities as a Trustee provided that in the case of resignation or incapacity notice in writing is given by him or on his behalf to the remaining Trustees stating the date of such resignation or incapacity and in respect of resignation in accordance with Section 5.02.01.
5.02.04The duties of a Trustee are personal.
Section 5.03 - Successor Trustee
5.03.01Upon the expiry of the term of office of any Trustee or in the event any Trustee shall die, be removed, become Incapacitated or resign, a successor Trustee shall be immediately designated by the Chamber, if the outgoing Trustee was elected by them, and otherwise by the Group which elected such Trustee.
5.03.02Any successor Trustee shall, immediately upon his or her appointment, become vested with all property, rights, powers and duties of a Trustee hereunder with the like effect as if he or she had been originally named as a Trustee.
5.03.03Any outgoing Trustee and the personal representatives of any deceased Trustee shall forthwith deliver up to the other Trustees any and all records books, documents, monies and other property and assets in his possession forming part of the Fund or incidental to his duties as a Trustee under this Trust or relating to the administration of the Fund.