EXECUTION VERSION TRUST DEED OF THE SG TSOGO EMPOWERMENT TRUST between SUPER GROUP LIMITED and PHILLIP VALLET (First Trustee) and JACK PHALANE (First Trustee) and NIGEL REDFORD (First Trustee)
Super Group Employee Trust Deed 49878.1 02 07 12 TABLE OF CONTENTS 1 PARTIES... 1 2 INTERPRETATION... 1 3 INTRODUCTION... 12 PART A: ESTABLISHMENT OF TRUST... 13 4 OBJECT OF THE TRUST... 13 5 ESTABLISHMENT OF THE TRUST... 13 6 DONATION... 14 PART B: TRUSTEES... 15 7 THE FIRST TRUSTEES... 15 8 NUMBER OF TRUSTEES... 15 9 FIRST ELECTION OF EMPLOYEE TRUSTEES... 15 10 SUBSEQUENT ELECTION OF EMPLOYEE TRUSTEES... 16 11 APPOINTMENT OF FOUNDER TRUSTEES... 17 12 APPOINTMENT OF INDEPENDENT TRUSTEE... 18 13 DISQUALIFICATION AND CO-OPTION OF TRUSTEES... 18 14 MEETINGS OF TRUSTEES... 21 15 POWERS OF TRUSTEES... 22 16 DUTIES OF THE TRUSTEES... 25 17 BOOKS OF ACCOUNT AND AUDITORS... 28 18 SECURITY... 29 19 EXEMPTION OF LIABILITY... 29 20 REMUNERATION... 30 PART C: OFFERS AND RIGHTS... 31 21 OBLIGATIONS OF THE ALLOCATED BENEFICIARIES VIS-À-VIS TRUSTEES... 31 22 ELIGIBILITY... 31 23 OFFERS... 31 24 ACCEPTANCE... 34 25 UNITS... 34 26 LIFTING OF RESTRICTIONS OF UNITS... 36 27 DISCHARGE OF UNITS... 36 28 TERMINATION OF PARTICIPATION IN THE SCHEME... 40 29 FAIR MARKET VALUE OF THE UNITS... 42 30 VOTING RIGHTS... 42 31 DISTRIBUTIONS... 43 32 FORFEITURE OF UNITS... 44 PART E: COMMUNICATION WITH ALLOCATED BENEFICIARIES... 45 33 COMMUNICATION WITH ALLOCATED BENEFICIARIES... 45
3 PART F: GENERAL... 46 34 RESTRICTIONS ON TRANSFERABILITY OF SHARES... 46 35 COSTS, EXPENSES AND TAXATION... 46 36 ADMINISTRATION OF THE TRUST... 47 37 TERM OF THE TRUST... 47 38 TERMS OF EMPLOYMENT... 48 39 AMENDMENTS TO THIS TRUST DEED... 49 40 CONFIDENTIALITY... 50 41 DISPUTE RESOLUTION... 52 42 WAIVER... 53 43 GOVERNING LAW... 53 44 SEVERABILITY... 54 45 GENERAL... 54 46 COSTS... 54 47 SIGNATURE... 55 ANNEXURE ANNEXURE "1": PRO FORMA OFFER ANNEXURE "2": DEED OF ADHERENCE ANNEXURE "3": YEARS OF POINTS ALLOCATION ANNEXURE "4": SCHEME PARTICIPATION EXAMPLE
1 1 PARTIES 1.1 The parties to this Trust Deed are - 1.1.1 Super Group Limited; 1.1.2 Phillip Vallet; 1.1.3 Jack Phalane; and 1.1.4 Nigel Redford. 1.2 The parties agree as set out below. 2 INTERPRETATION 2.1 In this Trust Deed, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings - 2.1.1 "Administrator" means the administrator of the Trust appointed in terms of clause 36; 2.1.2 "AFSA" means the Arbitration Foundation of Southern Africa; 2.1.3 "Allocate" means, in relation to a Unit, the act by the Trustees of allocating a Unit to an Allocated Beneficiary in accordance with the provisions of the Trust Deed, and Allocation shall have a corresponding meaning; 2.1.4 "Allocated Beneficiary" means an Employee who has received and accepted an Offer whereby Units are vested in such Employee and has executed a Deed of Adherence;
2 2.1.5 "Auditors" means the auditors appointed in terms of clause 17, and holding office as the auditors of the Trust from time to time; 2.1.6 "Bad Leaver" means an Allocated Beneficiary whose participation in the Scheme is terminated due to 2.1.6.1 the Allocated Beneficiary being lawfully dismissed or resigning from his employment with an Employer Company; 2.1.6.2 there being grounds which would have justified a summary dismissal of such Allocated Beneficiary at law and the Trustees elect to rely on such grounds for the purposes of the Scheme; or 2.1.6.3 an Allocated Beneficiary being in breach of any of the provisions of this Trust Deed and failing to remedy such breach within 7 (seven) days after being called upon in writing to do so by the Trustees; 2.1.7 "BEE" means Broad-Based Black Economic Empowerment, as envisaged in the BEE Act; 2.1.8 "BEE Act" means the Broad-Based Black Economic Empowerment Act, No 53 of 2003; 2.1.9 "BEE Co" means SG Tsogo Proprietary Limited (to be renamed SG Tsogo (RF) Proprietary Limited), registration number 2012/045170/07, a limited liability private company duly incorporated in South Africa; 2.1.10 "Beneficiaries" means the Allocated Beneficiaries and/or Residual Beneficiary, as the context may require; 2.1.11 "Black People" means, subject to the provisions of the BEE Act and any further qualifications imposed by the Codes, African, Coloured or Indian persons who are natural persons and -
3 2.1.11.1 are citizens of South Africa by birth (before or after the commencement date of the Constitution of South Africa, 1993 ("Constitution") or descent; 2.1.11.2 are citizens of South Africa by naturalisation before the commencement date of the Constitution; or 2.1.11.3 became citizens of South Africa after the commencement date of the Constitution, but who, but for the apartheid policy that has been in place prior to that date, would have been entitled to acquire citizenship by naturalisation prior to that date, and "Black Person" and "Black" shall have corresponding meanings; 2.1.12 "Board" means the board of directors for the time being of the Founder or any committee thereof to or upon whom the powers of the directors in respect of this Scheme are delegated or are conferred; 2.1.13 "Codes" means the Codes of Good Practice on BEE as promulgated in terms of the BEE Act from time to time and/or where relevant any Sector Code gazetted under the BEE Act; 2.1.14 "Control" means 2.1.14.1 the holding of shares or the aggregate of holdings of shares or other securities in a company entitling the holder thereof to exercise, or cause to be exercised, more than 50% (fifty percent) of the voting rights at shareholders meetings of a company irrespective of whether such holding or holdings confers de facto control; or 2.1.14.2 the holding or control by a shareholder or member alone or pursuant to an agreement with other shareholders or members of more than 50% (fifty percent) of the voting rights in a company; or
4 2.1.14.3 the ability to appoint the majority of the directors of a company; 2.1.15 "Commissioner" means the Commissioner of the South African Revenue Service; 2.1.16 "Companies Act" means the Companies Act, No 71 of 2008; 2.1.17 "Confidential Information" means any information pertaining to the business of BEE Co, the Group or its clients, including but not limited to all documents, financial records and financial information that is not available to the public; 2.1.18 "CSDP" means a person that holds in custody and administers securities or an interest in securities and that has been accepted in terms of section 34 of the Securities Services Act, No 36 of 2004 as a participant; 2.1.19 "Deed of Adherence" means a deed of adherence to be signed, in accordance with the provisions of clause 24, by an Employee as a condition of becoming an Allocated Beneficiary, substantially in the form of the draft deed of adherence attached hereto as Annexure "2"; 2.1.20 "Delivery Date" means 30 September in the year following the relevant Participation Termination Date; 2.1.21 "Discharge" means, upon the implementation of the Repurchase Transaction by BEE Co, the discharge of the obligations of the Trustees in respect of an Allocated Beneficiary's Unit by transferring such number of the Residual Shares to the Allocated Beneficiary in accordance with his Repurchase Date Rights, as contemplated in clause 27; 2.1.22 "Dischargeable" in respect of a Unit, means the date upon which an Allocated Beneficiary holding such Unit is entitled to the Discharge thereof in terms of clause 27;
5 2.1.23 "Discretion" means a sole, absolute and unfettered discretion; 2.1.24 "Employee" means any natural Black Person, excluding an independent contractor, who is employed by any of the Employer Companies on a full-time basis and who is entitled to receive any remuneration; 2.1.25 "Employee Trustees" means Trustees elected by Allocated Beneficiaries in accordance with the provisions of clauses 9 or 10, as the case may be; 2.1.26 "Employer Companies" means Super Group Holdings and the Subsidiaries by whom the Employees are employed and a reference to Employer Company shall be a reference to any of them, as the context may require, excluding any entity that becomes a Subsidiary after the Signature Date as decided by board of directors of Super Group Holdings; 2.1.27 "Fair Market Value" means the prevailing value of a Unit Allocated to an Allocated Beneficiary as at the 5th (fifth) business day after the announcement by the Founder of its year-end results for the immediately preceding Financial Year and as determined in terms of clause 29; 2.1.28 "Financial Year" means the BEE Co's financial year commencing on 1 July and ending on 30 June each year; 2.1.29 "First Trustees" means, collectively 2.1.29.1 Phillip Vallet; 2.1.29.2 Jack Phalane; and 2.1.29.3 Nigel Redford;
6 2.1.30 "Founder" means Super Group Limited, registration number 1943/016107/06, a limited liability public company duly incorporated in South Africa; 2.1.31 "Founder Shares" means ordinary shares in the issued share capital of the Founder which are listed on the JSE; 2.1.32 "Founder Trustees" means the First Trustees and the Trustees appointed by the Founder in terms of clause 11, from time to time; 2.1.33 "Good Leaver" means an Allocated Beneficiary whose employment with any Employer Company is terminated due to his death, serious disability, serious incapacity, retrenchment, retirement, the sale of the business of such Employer Company or such Employer Company no longer being a subsidiary of the Founder; 2.1.34 "Income Tax Act" means the Income Tax Act, No 58 of 1962; 2.1.35 "Independent Trustee" means the independent Trustee appointed by the Trustees in terms of clause 12, from time to time; 2.1.36 "JSE" means the securities exchange owned and operated by the JSE Limited; 2.1.37 "Master" means the Master, Deputy Master or Assistant Master of the High Court appointed under section 2 of the Administration of Estates Act, 1965, and in whose area of appointment the greater or greatest portion of the Trust Assets are situated; 2.1.38 "MOI" means the memorandum of incorporation of BEE Co, a copy of which is attached to the Subscription and Repurchase Agreement; 2.1.39 "Offer" means an offer made under the Scheme to an Employee to be vested with a Unit, subject to the terms and conditions as set out in this
7 Trust Deed, which shall be in the form of a written notice to be delivered by the Trustees to an Employee informing him that a Unit will vest in him in accordance with the provisions of clause 23 if accepted by him, substantially in the form of the draft offer attached hereto as Annexure "1"; 2.1.40 "Official Office" means the physical office of the Trust, which initially shall be at 27 Impala Road, Chislehurston, Sandton, 2196; 2.1.41 "Participation Percentage" means, in respect of an Allocated Beneficiary, the number of points which have been allocated to an Allocated Beneficiary based on the number of completed years of service of such Allocated Beneficiary with an Employer Company (as set out in Annexure 3) divided by the total number of points which are allocated to all the Allocated Beneficiaries on any particular date, expressed as a percentage; 2.1.42 "Register" means the register referred to in clause 16.1; 2.1.43 "Relevant Parties" means the Founder, the Trustees from time to time and the Beneficiaries; 2.1.44 "Repurchase Date" means the date defined as such in the Subscription and Repurchase Agreement; 2.1.45 "Repurchase Date Rights" means the entitlement, as at the Repurchase Date, of an Allocated Beneficiary to a percentage of the Residual Shares calculated in accordance with an Allocated Beneficiary's Participation Percentage, as envisaged in clause 27; 2.1.46 "Repurchase Transaction" means the repurchase by BEE Co of the Shares in terms of the Subscription and Repurchase Agreement;
8 2.1.47 "Residual Beneficiary" means such person nominated by the Founder, in its sole Discretion, to be a residual Beneficiary of the Trust; 2.1.48 "Residual Shares" means the net number of Shares (if any) remaining after the implementation of the Repurchase Transaction, which will be distributed to the Allocated Beneficiaries after the Repurchase Date and the Repurchase Transaction in accordance with clause 27; 2.1.49 "Scheme" means the share incentive scheme created by the Founder for the benefit of Employees, the terms and conditions of which are set out in this Trust Deed; 2.1.50 "Shareholder" means a shareholder of BEE Co from time to time; 2.1.51 "Shares" means ordinary shares in the issued share capital of BEE Co to be issued to the Trust pursuant to the Subscription and Repurchase Agreement; 2.1.52 "Signature Date" means the date of signature of this Trust Deed by the party last signing; 2.1.53 "South Africa" means the Republic of South Africa; 2.1.54 "Statutes" means the Trust Property Control Act, No 57 of 1988, and any other local, provincial or national statutes, ordinances, regulations, by-laws, proclamations, directives, declarations, determinations, guidelines, rulings, rules and other instruments having the force of law in South Africa, including the common law, affecting the performance by the Trustee/s of their duties or functions as such; 2.1.55 "Subscription and Repurchase Agreement" means the subscription and repurchase agreement to be concluded between the Trust and BEE Co;
9 2.1.56 "Subscription Date" means the date defined as such in the Subscription and Repurchase Agreement; 2.1.57 "Subsidiary" means any subsidiary of Super Group Holdings, from time to time; 2.1.58 "Super Group Holdings" means Super Group Holdings Proprietary Limited, registration number 1978/000019/07, a limited liability private company duly incorporated in South Africa; 2.1.59 "Trust" means the trust established and governed by this Trust Deed being the SG Tsogo Empowerment Trust; 2.1.60 "Trust Assets" means Shares, any other shares in any Employer Company at that time and any other assets held by or on behalf of the Trustees under the Trust; 2.1.61 "Trust Deed" means this deed of trust, including all annexures, as varied or amended from time to time; 2.1.62 "Trustees" means the trustees of the Trust for the time being and from time to time; and 2.1.63 "Unit" represent the vested right of an Allocated Beneficiary to a Participation Percentage in the Trust Assets and income from the inception of the Scheme, bearing the entitlements, privileges and restrictions contemplated in clause 25. 2.2 In this Trust Deed - 2.2.1 clause headings and the heading of this Trust Deed are for convenience only and are not to be used in its interpretation; and
10 2.2.2 an expression which denotes - 2.2.2.1 any gender includes the other genders; 2.2.2.2 a natural person includes a juristic person and vice versa; 2.2.2.3 the singular includes the plural and vice versa; and 2.2.2.4 a party includes a reference to that party s successors in title and assigns allowed at law. 2.3 Any reference in this Trust Deed to - 2.3.1 "business hours" shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time; 2.3.2 "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of South Africa from time to time; 2.3.3 "law" means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law; 2.3.4 "person" means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality; and
11 2.3.5 "writing" means legible writing and in English and excludes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No 25 of 2002. 2.4 The words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it. 2.5 The words "shall" and "will" and "must" used in the context of any obligation or restriction imposed on a party have the same meaning. 2.6 Any substantive provision, conferring rights or imposing obligations on a party and appearing in any of the definitions in this clause 2 or elsewhere in this Trust Deed, shall be given effect to as if it were a substantive provision in the body of this Trust Deed. 2.7 Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Trust Deed. 2.8 Unless otherwise provided, defined terms appearing in this Trust Deed in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning. 2.9 Any reference in this Trust Deed to "this Trust Deed" or any other trust deed, document or statutory enactment shall be construed as a reference to this Trust Deed or, as the case may be, such other trust deed, document or enactment, as amended, varied, novated or supplemented from time to time.
12 2.10 Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day. 2.11 If the due date for performance of any obligation in terms of this Trust Deed is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding business day. 2.12 Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention. 2.13 The use of any expression in this Trust Deed covering a process available under South African law, such as winding-up, shall be construed as including any equivalent or analogous proceedings under the law of any other jurisdiction. 2.14 In this Trust Deed the words "clause" or "clauses" and "annexure" or "annexures" refer to clauses of and annexures to this Trust Deed. 3 INTRODUCTION 3.1 The purpose of the Scheme is to enable the Employer Companies with an opportunity to provide their Employees with an incentive to jointly grow the profitability of the Employer Companies and share in this growth and prosperity, and promoting an identity of interests between the Employees and the Shareholders. Furthermore, the Founder is committed to BEE in South Africa. 3.2 The Founder wishes to establish the Trust as an Employee Ownership Scheme (in terms of and as defined in the Codes) and to permit the
13 Beneficiaries to participate in the economic benefit of BEE Co, on the terms and subject to the conditions of this Trust Deed. 3.3 The establishment of the Trust will assist the Founder in meeting its BEE objectives. 3.4 To give effect to these aims, the Founder accordingly establishes the Trust on the terms and conditions set out in this Trust Deed in order for the income and capital of the Trust to be applied for the benefit of the Beneficiaries. 3.5 The First Trustees have agreed to accept the nomination and to undertake the obligations of the Trust according to the terms set out in this Trust Deed. PART A: ESTABLISHMENT OF TRUST 4 OBJECT OF THE TRUST The object of the Trust is to enable the Employer Companies with an opportunity to provide their Employees with an incentive to jointly grow the profitability of the Employer Companies and share in this growth and prosperity, and promoting an identity of interests between the Employees and the Shareholders. Furthermore, the object of the Trust is to enable the Founder to facilitate the economic empowerment of such Employees. 5 ESTABLISHMENT OF THE TRUST 5.1 A trust to be known as the SG Tsogo Empowerment Trust is hereby constituted, and the Trust shall be administered by the Trustees for the benefit of the Beneficiaries and in the manner and upon the terms and conditions set out in this Trust Deed.
14 5.2 The Shares forming the Trust Assets shall be registered in the name of the Trust and legal proceedings instituted by or against the Trust may be instituted in the name of the Trust. 5.3 The Trust shall commence on the Signature Date and shall, subject to the provisions of clause 37, continue indefinitely. 5.4 The Trust is established to acquire Shares and to permit Beneficiaries to participate in the economic benefit derived from such Shares. The Trustees undertake to procure that the Trust - 5.4.1 is obliged to adopt and approve the terms of the MOI, which as contemplated in section 15(2)(b) and (c) of the Companies Act involves converting the name of the Company to one which includes the element 'RF' indicating that the Company is a ring-fenced company; 5.4.2 becomes a party to the Subscription and Repurchase Agreement; and 5.4.3 to the extent that the Trustees so resolve, uses the donation received by the Trustees in terms of clause 6 to acquire the Shares. 5.5 The financial year of the Trust shall coincide with the Financial Year of BE Co if the Commissioner so allows. 6 DONATION 6.1 The Founder hereby irrevocably donates the sum of R10 000.00 (ten thousand rand) to the Trust, which donation the Trustees hereby accept on the terms of this Trust Deed. 6.2 The First Trustees hereby accept the donation and the Trust created in terms of this Trust Deed and undertake to carry out the Trust and to administer the Trust Assets, subject to the terms and conditions set out herein and furthermore subject to the provisions of any applicable Law.
15 PART B: TRUSTEES 7 THE FIRST TRUSTEES The First Trustees are hereby appointed as the first Trustees of the Trust until the appointment of at least 4 (four) Trustees (whether Employee Trustees in terms of clause 9, the Founder Trustee in terms of clause 11 and/or the Independent Trustee in terms of clause 12) when the First Trustees shall resign, unless they are re-appointed by the Founder as a Founder Trustee. 8 NUMBER OF TRUSTEES Until the first Employee Trustees are appointed in terms of clause 9, the number of Trustees shall not be less than 3 (three). The number of Trustees shall not be more than 4 (four) at any one time. 9 FIRST ELECTION OF EMPLOYEE TRUSTEES 9.1 Within 45 (forty five) days of the appointment of the Allocated Beneficiaries in terms of clause 23, the Trustees shall procure that 2 (two) Employee Trustees are elected in accordance with clauses 9.2 to 9.4, which Employee Trustees shall at all times constitute at least 50% (fifty percent) of the Trustees. 9.2 The Trustees shall procure that each Allocated Beneficiary is, in terms of a procedure determined by the Trustees, entitled to nominate an Allocated Beneficiary for appointment as an Employee Trustee ("Nominated Employee Beneficiary") and vote for the appointment of a Nominated Employee Beneficiary as the Employee Trustee contemplated in clause 9.1. In the event of a tie between any of the Nominated Employee Beneficiaries for whom votes have been received, the Founder Trustees shall decide which Nominated Employee Beneficiary who has received as many votes as another Nominated Employee Beneficiary or other
16 Nominated Employee Beneficiaries shall be elected as an Employee Trustee. 9.3 In the event that the Master refuses to grant letters of authority to any person elected as an Employee Trustee, or requires that security be provided by such person, that person shall not qualify as a Trustee. In such event, the Founder Trustees shall identify the Nominated Employee Beneficiary that received the next highest number of votes in the election in terms of this clause 9, and that Nominated Employee Beneficiary shall be put forward to the Master to replace the disqualified Nominated Employee Beneficiary as an Employee Trustee. The same process shall be followed if the Master refuses to grant a letter of authority to, or requires security from, that Nominated Employee Beneficiary. 9.4 Upon completion of the appointment and election of Employee Trustees, and the issue to the appointed and elected Employee Trustees of letters of authority by the Master (which shall be procured by the First Trustees) the Trustees shall notify the Allocated Beneficiaries in writing of the names and contact details of the Trustees which information shall also be available from the Official Office. 10 SUBSEQUENT ELECTION OF EMPLOYEE TRUSTEES 10.1 Within 5 (five) years of the later of i) the most recent appointment of Employee Trustees in terms of clause 9 or this clause 10 or ii) the final approval of the Trust's financial reports for the previous financial year, the Trustees shall procure that 2 (two) Employee Trustees are elected as Allocated Beneficiaries in accordance with clauses 9.2 to 9.4, which Employee Trustees shall at all times constitute at least 50% (fifty percent) of the Trustees.
17 10.2 Upon completion of the appointment and election of Employee Trustees in terms of this clause 10 and the issue to the newly appointed and elected Employee Trustees of letters of authority by the Master (which shall be procured by the Trustees) - 10.2.1 the Employee Trustees already in office prior to the most recent appointment and election of Employee Trustees in terms of this clause 10 (other than any who may have been re-elected) shall automatically cease to be Trustees; and 10.2.2 the Trustees shall notify the Allocated Beneficiaries in writing of the names and contact details of the Trustees which information shall also be available from the Official Office. 10.3 An Employee Trustee shall be entitled to be re-appointed or re-elected for further terms in office as Trustee and no Nominated Employee Beneficiary shall be disqualified from being appointed or elected, as the case may be, as an Employee Trustee by reason of the fact that he/she was previously appointed or elected. 11 APPOINTMENT OF FOUNDER TRUSTEES At the same time as the election of the Employee Trustees in terms of clauses 9 or 10, the Founder shall be entitled to appoint up to 1 (one) Trustee (being the Founder Trustee), in addition to the Employee Trustees elected, who shall replace the initial Founder Trustees (or in the case of the first election, the First Trustees), unless a Founder Trustee is re-appointed. The Founder shall at any time be entitled to withdraw such nomination, or once appointed, replace any Founder Trustee appointed by it.
18 12 APPOINTMENT OF INDEPENDENT TRUSTEE Within 21 (twenty-one) days of the election of the Employee Trustees and Founder Trustee in terms of clauses 9, 10, and/or 11, the Trustees, following agreement by at least 75% (seventy five percent) of the Trustees, shall be entitled to appoint 1 (one) Independent Trustee, who shall replace the then Independent Trustee, if any, unless an Independent Trustee is re-appointed. The Trustees shall at any time be entitled to withdraw such nomination, or once appointed, replace any Independent Trustee appointed by them. 13 DISQUALIFICATION AND CO-OPTION OF TRUSTEES 13.1 A Trustee shall not be disqualified from entering into a contract with the Trust, or being interested in any such contract and retaining the profit arising from such contract, provided that the Trustee has disclosed the interest to the other Trustees. 13.2 The following persons shall be disqualified from acting as a Trustee - 13.2.1 any Employee Trustee appointed by Allocated Beneficiaries in terms of clauses 8, 9 or 10 who ceases to be an Employee for any reason; 13.2.2 any person who would be disqualified from acting as a director of a company in terms of section 69 of the Companies Act; 13.2.3 any person removed from an office of trust on account of misconduct; 13.2.4 any person whose estate has been sequestrated and has not yet been rehabilitated; 13.2.5 any person who has been declared by a competent court to be mentally ill or incapable of managing his/her own affairs or if he/she is by virtue of the Mental Health Care Act, No 17 of 2002, detained as a patient in an institution or as a state patient; and
19 13.2.6 any person who has been convicted in South Africa or elsewhere of any offence of which dishonesty is an element or of any other offence for which he/she has been sentenced to either imprisonment without the option of a fine or a fine in excess of R25,000.00 (twenty five thousand rand), and any Trustee then in office that falls to be disqualified shall cease to act immediately. 13.3 The office of a Trustee shall be vacated - 13.3.1 if he/she becomes disqualified in terms of clause 13.2 above; 13.3.2 if he/she breaches any provision of this Trust Deed; 13.3.3 if he/she resigns his/her office by not less than 60 (sixty) days (or such shorter period as the Trustees may agree to) written notice to the Trustees; 13.3.4 if he/she fails to be present at 3 (three) or more consecutive meetings of Trustees; 13.3.5 in the case of an Employee Trustee elected by the Allocated Beneficiaries whom the majority of the Allocated Beneficiaries request to resign from the office of Trustee, by written notice to the Trustees; 13.3.6 in the case of an Founder Trustee, upon written notice by the Founder; and 13.3.7 in the case of the Independent Trustees, upon written notice by at least 75% (seventy five percent) of the Trustees. 13.4 In the event that the office of an Employee Trustee appointed by Allocated Beneficiaries is vacated, the remaining Trustee(s) shall have the right to
20 appoint a Trustee in his/her stead ("Co-opted Trustee"), provided that the Co-opted Trustee is an Allocated Beneficiary. The appointment of the Coopted Trustee by the remaining Trustee(s) shall take place at a meeting of the remaining Trustee(s) after the Co-opted Trustee has accepted the nomination to be appointed as Co-opted Trustee. The Co-opted Trustee shall hold office until the next election of Employee Trustees held in terms of clause 10. 13.5 In the event that the office of a Founder Trustee is vacated, the Founder shall be entitled to appoint a new Founder Trustee. 13.6 In the event that the office of an Independent Trustee is vacated, the Trustees shall be entitled to appoint a new Independent Trustee. 13.7 During any period that the number of Trustees is less than the minimum number provided for in clause 8, all the rights, powers and discretions of the Trustees shall be suspended, except the rights of appointment dealt with in the clauses 13.4 and 13.10. 13.8 No Trustee shall have the right during his/her lifetime or by last will to appoint his/her successor or an alternative Trustee to him/her or a person to serve as Trustee in his/her place and stead. 13.9 Any Trustee appointed, other than the First Trustees, and becomes a Trustee of the Trust shall be obliged to sign a deed of adherence acceptable to the Founder, in terms of which deed of adherence a Trustee will accept his/her nomination and will agree to be and remain bound by all the terms and conditions contained in the Trust Deed. 13.10 Subject to the provisions of clause 8 and with the prior written consent of the Founder, the Trustees shall be entitled to appoint additional Trustees.
21 13.11 In the event of any change to the Trustees, the Trustees shall notify the Allocated Beneficiaries in writing as soon as reasonably possible of the names and contact details of the Trustees which information shall also be available from the Official Office. 14 MEETINGS OF TRUSTEES In respect of all meetings of the Trustees - 14.1 the Trustees shall meet together four times annually for the dispatch of business and may adjourn and otherwise regulate their meetings as they deem fit; 14.2 any 3 (three) Trustees, which shall include a Founder Trustee, are at all times entitled to convene a meeting of the Trustees by giving 14 (fourteen) days written notice to all Trustees, or on such shorter notice as may be agreed by all the Trustees in writing; provided that such notice shall specify the business to be dealt with at the meeting; 14.3 the Trustees may participate in a meeting of the Trustees by means of conference telephone or similar equipment by means of which all persons participating in the meeting can hear each other and any such participation in a meeting shall constitute presence in person at the meeting; 14.4 the Trustees shall from time to time elect from among themselves a chairperson to hold office for such period(s) as they may determine and that elected chairperson shall chair all meetings of Trustees. If the chairperson is not present at a meeting of Trustees, the Trustees present at that meeting shall elect a chairperson for that meeting; 14.5 for a quorum to exist at meetings of the Trustees, at least 3 (three) of the Trustees shall be present, of whom at least 1 (one) must be an Independent Trustee and 1 (one) must be a Founder Trustee;
22 14.6 save as may be expressly otherwise provided in this Trust Deed or the Statutes, decisions to be taken by the Trustees present at a meeting of Trustees shall take place by majority vote, and the decision of the majority shall be deemed to be the decision of all of the Trustees. In the event of a deadlock between the Trustees, the chairperson of the Trustees for the time being or the chairperson elected at a meeting of Trustees, as the case may be, shall have the casting vote; 14.7 a resolution in writing signed by all the Trustees shall be valid and effectual as if it had been passed at a meeting of the Trustees duly called and constituted, and such resolution may be signed in counterparts. For the avoidance of doubt, it is agreed that it shall be competent for the Trustees to decide any matter by way of a round robin resolution in the form of a written resolution signed by each one of them in counterparts; 14.8 the Trustees shall keep minutes of their meetings in writing and all resolutions passed by the Trustees shall be duly signed by all the Trustees present at the meetings; and 14.9 the Trustees are entitled to authorise 2 (two) or more of them to sign on behalf of the Trustees all documents for official purposes which are necessary for the administration of the Trust and for the execution of any transaction concerned with the affairs of the Trust, and any 2 (two) Trustees, of whom at least 1 (one) must be a Founder Trustee, shall be entitled to certify an extract from the minutes of any meeting as a true extract from such minutes. 15 POWERS OF TRUSTEES 15.1 The Trustees shall have only such powers as may be necessary for, or incidental to, the carrying out of their duties as set out in this Trust Deed.
23 Without derogating from the generality of the aforegoing, the Trustees shall have the following specific powers - 15.1.1 to be bound by the MOI and any subsequent amendments to the MOI; 15.1.2 to conclude the Subscription and Repurchase Agreement; 15.1.3 to make Offers to Employees in accordance with the terms of this Trust Deed; 15.1.4 to acquire the Shares; 15.1.5 to deal with the Shares in accordance with the provisions of this Trust Deed, including 15.1.5.1 the sale of any Shares to BEE Co, at price of R0.0001 per Share, in terms of the Repurchase Transaction contemplated in the Subscription and Repurchase Agreement; and 15.1.5.2 the sale of any Residual Shares and Founder Shares (as defined in clause 27.5), on behalf of the Beneficiaries; 15.1.6 to open a CSDP account for purpose of holding the Founder Shares on behalf of and for the beneficial interest of the Allocated Beneficiaries; 15.1.7 to make distributions to the Beneficiaries in accordance with the provisions of this Trust Deed and the Subscription and Repurchase Agreement; 15.1.8 to exercise all rights conferred by the Shares and other assets of the Trust, including rights of conversion, rights to take up further allotments by way of capitalisation issues or rights issues and the like, as the Trustees may determine in their discretion;
24 15.1.9 to receive all distributions made by the BEE Co in respect of the Shares from time to time, including any dividends, capitalisation shares, rights issues and other distributions by the BEE Co; 15.1.10 to receive and accept capital contributions from the Employer Companies; 15.1.11 subject to the Statutes, to open and operate (either themselves or by a person(s) authorised by them) bank accounts in the name of the Trust with a bank; 15.1.12 to draw, accept, make or endorse cheques, bills of exchange or promissory notes for and on behalf of the Trust; 15.1.13 to repay any loans advanced to the Trust; 15.1.14 to invest the proceeds of the sale of any of the Shares and any other surplus funds, in an interest bearing account held with any bank; 15.1.15 to exercise the voting rights attached to each of the Shares for the benefit of the Allocated Beneficiaries in the manner determined by the majority of the Trustees; 15.1.16 to appoint an Administrator for the Trust in accordance with clause 36 and to delegate any of their rights, obligations, functions and powers set out in this Trust Deed to that Administrator; 15.1.17 with the authorisation of the Founder, to reimburse themselves from the Trust Assets for all reasonable expenses which may be incurred by them in or about the execution of the Trusts and powers conferred upon them; 15.1.18 to elect an Independent Trustee in terms of clause 12;
25 15.1.19 to employ, with the prior written consent of the Founder, any professional advisor or other person to provide professional services to the Trust; 15.1.20 to borrow or raise money, with the prior written consent of the Founder, whether from third parties or the Founder, or otherwise, to enable the Trust to carry on the activities contemplated in this Trust Deed; and 15.1.21 to adopt such further procedures and do such further things, with the prior written consent of the Founder, as the Trustees deem necessary or advisable for the due and proper administration of the Trust, and in order to achieve the object of the Trust. 15.2 Without prejudice to any of the aforegoing, the Trustee/s shall have - 15.2.1 full capacity to contract on behalf of the Trust, subject always to such limitations, if any, as may be imposed by this Trust Deed, provided that they shall under no circumstances, subject to the Statutes, be personally liable on any such contract; and 15.2.2 locus standi in judicio and be capable of bringing, defending, opposing, withdrawing, settling and/or otherwise acting on behalf of the Trust in connection with any proceedings whatsoever in or before any court, or in any arbitration, or before any other forum, provided that all costs reasonably incurred by them in that regard shall be for the account of the Trust. 16 DUTIES OF THE TRUSTEES 16.1 In addition to any other duty imposed by this Trust Deed (whether expressed or implied), the Trustees shall have the duty to
26 16.1.1 give effect to and implement the provisions of this Trust Deed and administer the Scheme in order to achieve and maintain the object of the Scheme; 16.1.2 make Offers to Employees as envisaged in this Trust Deed; 16.1.3 not pledge or otherwise encumber, or sell, alienate, cede, assign or in any other manner transfer or dispose of any of the Shares other than in accordance with clause 27 or the provisions of the MOI; 16.1.4 make available upon request the Trust Deed to any Beneficiary; 16.1.5 establish a register, with the assistance of Super Group Holdings, in which they shall record the following information in relation to each Allocated Beneficiary - 16.1.5.1 name and identity number of each Allocated Beneficiary and his residential address and contact details; 16.1.5.2 the number of points which have been allocated to each Allocated Beneficiary in terms of the years of service allocation contemplated in Annexure 3; 16.1.5.3 the total number of points which have been allocated to all the Allocated Beneficiaries; 16.1.5.4 the number and value of all Designated Founder Shares (as defined in clause 25.1.4.1) acquired by the Employer Companies for the benefit of the Allocated Beneficiaries in accordance with clause 28; 16.1.5.5 all distributions made to Allocated Beneficiaries in terms of this Trust Deed.
27 16.2 The register shall be kept at the Official Office and the name and contact details of each Allocated Beneficiary recorded in the Register shall be open to inspection by any Allocated Beneficiary at reasonable times on reasonable written notice to the Trustees. 16.3 The Trust Deed shall be kept at the Official Office and shall be open to inspection by any Allocated Beneficiary at reasonable times on reasonable written notice to the Trustees. 16.4 The Trustees shall establish a minute book into which the duly signed minutes referred to in clause 14.8 shall be entered within 30 (thirty) days of the date of the meeting to which the minutes relate. The minute book shall be kept at the Official Office and shall be open to inspection by any Allocated Beneficiary at reasonable times on reasonable written notice to the Trustees. The Trustees may, in the manner determined by the majority of the Trustees, post such minutes in such venues as may be accessible to the majority of the Allocated Beneficiaries. 16.5 The Trustees shall not make any distribution of capital or income from the Trust Assets to the Beneficiaries in a manner other than that specified in this Trust Deed. Specifically, the Trustees shall not make any income or capital distributions to the Beneficiaries without first satisfying themselves that such distributions will not place the Trust in a financial position in terms of which it would be unable to pay - 16.5.1 its debts as and when they become due; 16.5.2 any administration costs associated with operating the Trust; or 16.5.3 any taxes payable by the Trust in terms of this Trust Deed. 16.6 A Trustee representative, being an elected Trustee from amongst the Trustees, shall attend all meetings of Shareholders and shall vote all the
28 Shares of the Trust at such meetings for the benefit of the Allocated Beneficiaries in the manner determined by the majority of the Trustees. 16.7 Any Trustee, who is appointed a director of BEE Co, shall attend as many meetings of the board of directors of BEE Co as is reasonably possible. 16.8 The Trustees shall procure that, where necessary, employees tax as provided for in the Fourth Schedule of the Income Tax Act will be deducted from amounts payable to Allocated Beneficiaries and paid to the South African Revenue Service, and shall procure the compliance with the provisions of the Income Tax Act. 16.9 Save as is specifically provided for in this Trust Deed, the Trustees shall not provide the Beneficiaries with any information regarding the Founder unless the Founder indicates otherwise in writing. 17 BOOKS OF ACCOUNT AND AUDITORS 17.1 The Trustees shall keep true and correct records and books of account of their administration of the Trust in such manner and form as is necessary in order that the records and books shall at all times reflect the financial position of the Trust and each Allocated Beneficiary s Unit. There shall be recorded in such records and books of account, inter alia, any change of the Trust Assets from time to time and the income and/or the expenses applicable to the administration of the Trust as allowed in terms of this Trust Deed. 17.2 Such records and books of account, together with all other papers and documents connected with or relating to the Trust, shall be kept at the Official Office.
29 17.3 The Trustees shall appoint auditors from time to time as the Auditors of the Trust with the prior written approval of the Founder. It is recorded that the first Auditors will be KPMG. 17.4 The Auditors shall have the right of access at all times to the records and books of account of the Trust and shall be entitled to demand from the Trustees such information and explanations as may be necessary for the performance of their duties as Auditors. 17.5 The Trustees shall ensure that annual financial statements are prepared for the Trust in accordance with a suitable accounting basis selected by the Trustees, which statements shall be reported on by the Auditors. 17.6 The annual financial statements of the Trust shall be kept at the Official Office and shall open to inspection by any Allocated Beneficiary at reasonable times on reasonable written notice to the Trustees. 18 SECURITY The Trustees shall be exempt from any obligation to furnish security in connection with their appointment and/or for the due administration of the Trust to the Master or any other person, body or authority as provided for in the Statutes or any other law. The Master and any such other person are hereby directed to dispense with and not to require security. 19 EXEMPTION OF LIABILITY Subject to the Statutes - 19.1 no Trustee shall be liable to make good to the Trust or any Beneficiary any loss occasioned or sustained by any cause, howsoever arising, except such losses as may arise from or be occasioned by his/her dishonesty or other wilful misconduct or gross negligence;
30 19.2 no Trustee shall be liable for any act of dishonesty or other misconduct committed by any other Trustee unless he/she knowingly allowed it or was an accessory to such dishonesty or other misconduct; and 19.3 subject to clauses 19.1 and 19.2, the Trustees shall be indemnified out of the Trust Assets against all claims and demands of whatsoever nature that may be made upon them arising out of the exercise or purported exercise of any of the powers conferred upon them in terms of this Trust Deed. 20 REMUNERATION 20.1 The Employee Trustees and the Founder Trustee shall not be remunerated for their services as Trustees but shall be entitled to approved travelling expenses and the other approved out-of-pocket expenses incurred by them in and about the Trust's business, as may from time to time be resolved by an independent quorum of the Board. 20.2 The Independent Trustee may receive for the services as Trustee, such reasonable remuneration, travelling expenses and the other approved out-of-pocket expenses incurred in and about the Trust's business, as may from time to time be resolved by an independent quorum of the Board. 20.3 The Founder shall procure that the Employee Trustees are allowed to devote a reasonable amount of time during their normal working hours to the affairs of the Trust.
31 PART C: OFFERS AND RIGHTS 21 OBLIGATIONS OF THE ALLOCATED BENEFICIARIES VIS-À-VIS TRUSTEES Every Beneficiary shall, in addition to and without prejudice to any obligation imposed elsewhere in this Trust Deed, whether express or implied at all times strictly observe the provisions of this Trust Deed. 22 ELIGIBILITY Employees shall be eligible to and shall participate in the Scheme only if and to the extent that an Offer, is made to and is accepted by them in terms of the Deed of Adherence. 23 OFFERS 23.1 The Trustees shall offer the Employees as at the Subscription Date, one Unit in accordance with the instructions of the Board, mutatis mutandis in accordance with clause 23.2, and notify them in writing as soon as reasonably possible thereafter, that such Unit will vest in them (with the associated benefits contemplated in clause 23.3) if such Offer is accepted by them in terms of the Deed of Adherence. Employees who leave the employ of the Employer Companies prior to the Subscription Date shall not be Allocated a Unit. 23.2 The Board shall from time to time, identify additional Employees to participate in the Scheme who became employed on or after the Subscription Date and who have not received an Allocation and shall deliver a written notice to the Trustees advising them of the identified additional Employees for participation in the Scheme.
32 23.3 It is recorded that 23.3.1 the benefit on any particular date in respect of the vested right in an Allocated Beneficiary in terms of his Unit is determined with reference to his length of service with the Employer Companies concerned because the number of points allocated to him may increase as the years of service for any Employer Company increase (as determined in terms of Annexure 3); 23.3.2 the benefit on any particular date in respect of the vested right in an Allocated Beneficiary in terms of his Unit may vary because the number of points allocated to him are compared to the total number of points allocated to all the Allocated Beneficiaries on a particular date, which may change; and 23.3.3 while the benefit on any particular date in respect of the vested right in an Allocated Beneficiary in terms of his Unit may vary, an Allocated Beneficiary has a vested right to a Participation Percentage of the Trust Assets and income as of the Offer Date, which vested right shall endure unchanged until his Unit lapses. 23.4 The Trustees shall, as soon as reasonably possible after receipt of a notice from the Board as contemplated in clause 23.2, and with the assistance of the human resource department of Super Group Holdings, notify each relevant Employee that a Unit specified in the notice may be vested in him from the Offer Date by delivering an Offer to him. 23.5 Once the Trustees or Super Group Holdings have notified an Employee of his rights in terms of clause 23.1 or clause 23.3 and such Employee has executed and delivered to the Trustees (or Super Group Holdings) a Deed of Adherence, such Employee shall
33 23.5.1 become an Allocated Beneficiary of the Trust and shall be recorded as such by the Trustees as contemplated in clause 16.1.5; 23.5.2 as the holder of a Unit, have a vested right to his initial Participation Percentage of the Trust Assets and income, bearing the entitlements (including the distributions rights contemplated in clause 0), privileges and restrictions set out in clause 25; and 23.5.3 be bound by the terms and conditions of this Trust Deed. 23.6 The allocation of Units in terms of this clause 23 shall be effective from the date indicated in the Offer thereof, subject to the relevant Employee delivering an executed Deed of Adherence to the Trustees (the "Offer Date"). 23.7 The parties record that - 23.7.1 where a business is acquired by an Employer Company ("Transfer") and the provisions of section 197 of the Labour Relations Act No, 66 of 1962 (the "LRA") are applicable to such Transfer, any Employees employed by an Employer Company from the effective date of the Transfer shall be entitled to receive an Offer in accordance with clause 23.2, save that for purposes of determining such Employees allocation of points in terms of Annexure 3, recognition shall only be given to such Employees years of service for the Employer Company from the effective date of the Transfer; 23.7.2 subject to a decision of the board of directors of Super Group Holdings, where a new subsidiary is acquired by an Employer Company ( New Employer Company ), any Employees employed by the New Employer Company from the effective date that the New Employer Company became a subsidiary may be entitled pursuant to the decision of the