Trust Deed Constituting Superannuation Fund
This deed made the ………………… day of ………… 1999 between X. Co. Ltd., (hereinafter called the company) of the one part, and S, of …………, secretary of the company, and N, of ………… as nominee of the committee of the sick fund (hereinafter called the trustees) of the other part.
Whereas the company is desirous of establishing a superannuation fund for the benefit of its employees.
Now these presents witness and declare as follows:
1. In these presents, unless excluded by the subject or context, ‘the trustees’ means and includes the trustees for the time being. ‘The fund’ means the superannuation fund to be constituted as hereinafter provided.
2. A fund to be called the superannuation fund shall be constituted and established.
3. The superannuation fund shall consist, of the several investments specified in the schedule hereto, and there shall be added to the fund all contributions and additions which are to be carried to it as hereinafter provided, and the income of the fund and of the investments for the time being representing the same shall also be added to the fund.
4. The fund shall be vested in the present trustees and their successors in the trust.
5. The moneys from time to time in the hands of the trustees not presently required for making any payment pursuant hereto, shall, if and so far as the company shall be willing to accept the same, be advanced to the company by way of loan, repayable on demand, and carrying interest at 15 per cent per annum and the company may at any time pay off any moneys so advanced, and any moneys in the hands of the trustees upon the trusts hereof, which the company shall at any time be unwilling to accept on loan, may be invested in any investments by law permitted to trustees, and the investments thereof may at any time be varied as may seem expedient to the trustees, or may be placed on deposit with any bank as may seem expedient to the trustees.
6. The company may contribute each year to the fund the sum of Rs. ………………, or such other sum as the company shall from time to time determine.
7. The fund is to be regarded as primarily established for the benefit of employees whose nature and length of service may, in the judgment of the trustees, entitle them to a claim on it, and, secondly, for the purpose of assisting survivors who may have been dependent on deceased employees, and whose circumstances may necessitate some help.
8. The establishment of the fund is not to be regarded as in any way relieving employees of their duty to make such provision for old age and those dependent upon them as their means will permit.
9. Any employee of the company who has been in the service of the company or its predecessors in business for at least 25 years, and has completed the 60 years of his age, may apply for a retiring allowance.
10. Except in cases where ill-health or special circumstances shall, in the opinion of the directors, justify it, no allowance shall be granted to an employee who is not 60 years of age and has not completed 20 years of service with the company or its predecessors in business.
11. Any employee who has been in the service of the company or its predecessors in business for at least 20 years, and has become mentally or physically incapacitated, may be granted an annual or other allowance subject to the provisions hereof.
12. Any employee under 60 years of age who shall be in receipt of a retiring allowance shall, when required by the trustees, be bound to satisfy them, by medical certificate or otherwise, that there has been no material change in the circumstances in which the allowance was granted.
13. The trustees may withdraw or modify or determine any allowance when, in their opinion, the circumstances or conduct of the recipient shall justify them in so doing.
14. An allowance as aforesaid is to be regarded as strictly personal and cannot be assigned, charged, or alienated in any way, and any attempt to assign, charge, or alienate shall determine the allowance, but without prejudice to the trustees’ discretion to continue the same if they think fit after an interval or otherwise.
15. In fixing the amount of each allowance and in making any modification therein, the trustees may exercise their discretion with reference to all the circumstances; but, without prejudice to such discretion, it is declared that the following is the retiring allowance which, it is contemplated, will be payable, that is to say:
(a) until such time as the fund shall have reached the sum of Rs. ………… the retiring allowance per month after 20 years’ service shall be one-third of the person’s average monthly earnings for the last three years of his employment, but so that such allowance shall not exceed Rs. 500 per month.
(b) after the fund shall have reached the sum of Rs. …………… and upwards, the retiring allowance per month after 20 years’ service shall be one-half of the person’s average monthly earnings for the last three years of his employment, but so that such allowance shall not exceed Rs. 600 per month.
16. Any employee, who shall be dismissed, or shall retire from the service of the company in consequence of misconduct, shall be disqualified from receiving any allowance hereunder.
17. The trustees may grant such temporary or other allowance to widows and other dependants of employees who may die in the service of the company, or shortly after leaving the service of the company, as in their absolute discretion they may think proper.
18. The trustees may meet together for the despatch of business, adjourn, and otherwise regulate their meetings as they think fit, and may determine the quorum necessary for the transaction of business. Until otherwise determined, three trustees shall form a quorum. A trustee may at any time convene a meeting of the trustees to be held at the office of the company. Questions arising at any meeting shall be decided by a majority of votes, and in case of an equality of votes the Chairman shall have a second or casting vote.
19. A meeting of the trustees for the time being at which a quorum is present shall be competent to exercise all or any of the authorities, powers, and discretions by these presents vested in the trustees generally.
20. The trustees shall cause proper minutes to be kept and entered in a book provided for the purpose, of all their resolutions and proceedings, and any such minutes of any meeting of the trustees, if purporting to be signed by the Chairman of such meeting, or by the Chairman of the next succeeding meeting, shall be receivable as prima facie evidence of the matters stated in such minutes.
21. A register shall be kept by the trustees in which shall be entered the names and addresses of the persons for the time being, and from time to time, who are in receipt of allowances hereunder, and of the trustees for the time being hereof.
22. For the purposes hereof any notice to any trustee, or to any person in receipt of any allowance hereunder, may be given by sending the same through the post, in a letter addressed to him at his registered place of address, and any notice so sent shall be deemed to be served on the day following that on which it is posted.
23. The company may from time to time, by instrument in writing under its common seal, with the assent in writing of the trustees, alter all or any of the regulations contained in these presents for the time being relating to the fund hereby constituted, and make new regulations to the exclusion of, or in addition to, all or any of the regulations for the time being relating to such fund; and the regulations so made and for the time being in force shall be deemed to be regulations, in relation to the fund, of the same validity as if they had been originally contained in these presents, and shall be subject in like manner to be altered or modified by any subsequent instrument in writing as aforesaid. For the purposes hereof, all the provisions herein contained shall be deemed to be regulations in relation to the fund.
24. The trustees, in the exercise of the authorities and discretions hereby vested in them, shall have an absolute and uncontrolled discretion, and may exercise the same from time to time, and at any time.
25. The trustees shall respectively be indemnified against all liabilities incurred by them in the execution of the trusts hereof, and shall have a lien on the fund for such indemnity.
26. The trustees of the fund shall always include two of the directors of the company, the secretary of the company, and one other person to be appointed by the majority for the time being of the committee of the sick fund which has been established in relation to the company. The said M and N are two of the present directors, the said S is the secretary, and the said T has been nominated by the committee of the sick fund.
27. The statutory power of appointing new trustees in the place of any trustee appointed in respect of his being the managing director or director or secretary of the company shall be vested in the company, and the statutory power of appointing a new trustee in the place of any trustee nominated by the committee of the sick fund shall be vested in the majority of the committee of the sick fund.
28. Any trustee, who having been appointed as the managing director or a director or secretary of the company, vacates office as such, shall be deemed thereupon to desire to be discharged from the trusts hereof for the purposes of the exercise of the statutory power of appointing new trustees.
29. If the company shall at any time give to the trustees notice in writing stating that the company does not intend to make any further contributions to the fund, or an order shall be made or an effective resolution shall be passed for the winding-up of the company, the fund shall be realised and shall be distributed amongst the employees of the company in such proportions as shall be determined to be just and equitable by an arbitrator to be appointed as hereinafter provided, and accordingly such person shall forthwith be appointed an arbitrator as the company and the trustees hereof shall unanimously appoint, and if such appointment is not made within three months after such order or an effective resolution is made or passed, then the majority of the trustees hereof may request the President for the time being of the Incorporated Law Society of Calcutta to appoint such arbitrator, and such President shall have authority to appoint him accordingly.
30. The determination of the arbitrator appointed under the foregoing clause shall be absolute and final, and all the costs, charges and expenses of and incidental to the realisation and distribution of the fund, including the remuneration of the arbitrator, shall be payable out of the fund.
In witness, etc.
The Schedule above referred to
(Particulars of Investments)
Signed, sealed and delivered by Sd. for X Co. Ltd.
S on behalf of X Co. Ltd. in
Signed and delivered by the Sd. trustees
trustees in presence of: