DEED OF AMENDMENT RELATING TO THE NZX 10 FUND TRUST DEED

Transcription

1 Dated 2016 DEED OF AMENDMENT RELATING TO THE NZX 10 FUND TRUST DEED SMARTSHARES LIMITED THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED

2 PARTIES (1) SMARTSHARES LIMITED a company duly incorporated in New Zealand under the Companies Act 1993 (Manager) (2) THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED a company duly incorporated in New Zealand under the Companies Act 1993 (Trustee) BACKGROUND A. This deed modifies a trust deed dated 7 May 1996, originally made between the Manager (then known as NZSE Index Management Limited) and the Trustee as amended by deeds of modification dated 7 November 1996, 14 December 2000, 29 May 2001, 17 December 2003, 17 March 2005, 9 December 2005, 1 October 2007, 30 March 2010 and 3 September 2010 (the Trust Deed). B. The Trust Deed established a group investment fund (the Existing Fund) to be known as the TENZ Fund and now known as the NZX 10 Fund in accordance with the Trustee Companies Act C. The Manager wishes to resettle the Existing Fund onto the trustee of a new unit trust (the New Fund) to be established by the Manager under the terms of a master trust deed dated 24 June 2014 between the Manager and Public Trust as supervisor. D. At present, the Trust Deed does not contain a resettlement mechanism. E. Clause of the Trust Deed provides that the Trustee, with the concurrence of the Manager, may alter, modify, vary or add to the Trust Deed if it is authorised by an Extraordinary Resolution of the unitholders under Clause F. The Manager and the Trustee wish to amend the Trust Deed to insert a resettlement mechanism and related definitions. In addition, they wish to amend the Trust Deed to clarify the meaning of "Fund" in the context of a resettlement. G. At present, the Trust Deed requires the Manager to give not less than two months' notice of termination of the Existing Fund, which period the Trustee and the Manager wish to reduce. H. The Trustee wishes and the Manager agrees to amend the Trust Deed as set out in this deed, subject to the passage of an Extraordinary Resolution of the unitholders approving the amendment. BF\ \3 Page 1

3 OPERATIVE PROVISIONS 1. AMENDMENT OF THE TRUST DEED The Trust Deed is amended with effect from the date of an approving Extraordinary Resolution of unitholders in the Existing Fund as follows: 1.1 A new definition will be added to Clause 1.1 that reads as follows: Resettlement Fund means a fund (other than the Fund) established as part of a managed investment scheme (as defined in the Financial Markets Conduct Act 2013) in relation to which units are issued that are managed investment products (as defined in the Financial Markets Conduct Act 2013) and that, at the date of any resettlement pursuant to Clause , has or will have Smartshares Limited as its manager." 1.2 Clause (b) shall be amended to read as follows: "(b) the day appointed by the Manager for that Fund by giving not less than: (i) (ii) one week's written notice if all of the income and capital of the Fund is to be resettled in accordance with clause and an Extraordinary Resolution approving that resettlement has been passed; or two months written notice in all other cases, to the Unitholders and the Trustee." 1.3 Clause 20.3 shall be amended by the insertion of the following: Resettlement: If Unitholders resolve by Extraordinary Resolution to resettle all or part of the income or capital of the Fund and the Trustee is satisfied that it is not, nor is it likely to become, materially prejudicial to the interests of Unitholders generally, the Trustee shall: (a) Require Unitholders to accept repayment of all or any of the Unitholders' Units for the purposes of the application of the proceeds referred to in clause ; or (b) Apply the proceeds of repayment towards the issue price for units in a Resettlement Fund ( the New Fund ) with an investment policy similar in all material respects to those of the Fund ( the Existing Fund ), as if the Unitholder had redeemed units in the Existing Fund and reinvested the proceeds from those units in the New Fund. (c) Sell or otherwise transfer all or any GIF Assets of the Existing Fund to the New Fund. (d) Resettle by irrevocable deed (without infringing the rule against perpetuities) all or part of the income or capital of the Existing Fund on the trusts and with the powers of any New Fund, or other trust approved by the Trustee. (e) Lend any sum to the trustee or trustees of that New Fund, with or without security, at an interest rate (if any) and on such other terms as in each respect the Trustee thinks fit. (f) Assume liabilities of the Existing Fund on behalf of the New Fund. (g) Arrange any of the foregoing with another manager and/or trustee for the New Fund. (h) Terminate the Existing Fund." 2. CONFIRMATION 2.1 Except to the extent amended by this deed, the Trust Deed continues in full force and effect. BF\ \3 Page 2

4 3. COUNTERPARTS 3.1 This deed may be executed in one or more counterparts (including, without limitation, facsimile or copies), each of which shall be an original but when taken together shall constitute one and the same deed. 4. DELIVERY 4.1 Without limiting any other mode of delivery, this deed will be delivered by each party on the earlier of: (a) (b) physical delivery of an original of this deed, executed by each party, into the custody of each other party or its solicitors; or transmission by each party, its solicitors or any other person authorised in writing by that party of a facsimile, photocopied or scanned copy of an original of this deed, executed by that party, to each other party or its solicitors. 5. GOVERNING LAW 5.1 This deed shall be governed by and construed in accordance with New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand courts. EXECUTION EXECUTED as a DEED for and on behalf of ) SMARTSHARES LIMITED by two directors ) ) Director Director BF\ \3 Page 3

5 EXECUTED as a DEED in the name and ) under the seal of ) THE NEW ZEALAND GUARDIAN TRUST ) COMPANY LIMITED by Authorised Signatory Authorised Signatory [Print Name] in the presence of Witness signature Full name Address Occupation BF\ \3 Page 4