CHP 17/ 0012 IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN CIVIL DIVISION CHANCERY PROCEDURE IN THE MATTER OF ZURICH ASSURANCE LTD AND ROTHESAY LIFE PLC AND IN THE MATTER OF THE INSURANCE ACT 2008 SCHEME for the transfer of annuity business from Zurich Assurance Ltd to Rothesay Life Plc pursuant to section 21 of and Schedule 2 to the Insurance Act 2008
CONTENTS 1. Interpretation... 2 2. Introduction... 8 3. Transfer of the Transferring Business to the Transferee... 9 4. Continuity of Proceedings... 10 5. Excluded Annuities... 10 6. Premiums and Mandates... 11 7. Rights and Obligations under Transferring Annuities... 11 8. Declaration of Trust by the Transferor... 12 9. Indemnities... 12 10. Data Protection... 13 11. The Effective Time... 13 12. Modification or Additions to this Scheme... 13 13. Costs and Expenses... 15 14. Successor and assigns... 15 15. VAT... 15 16. Third parties... 15 17. Governing Law... 15 -i-
1. INTERPRETATION 1.1 Definitions. In this Scheme the following expressions bear the meanings respectively set opposite them. Actuary means the person from time to time appointed as head of the actuarial function at the relevant insurance company pursuant to 4.3.1R of the Supervision Manual section of the rulebook of rules and guidance issued by the PRA from time to time pursuant to FSMA; Board means, in relation to a company, the board of directors from time to time of that company; Court means the High Court of Justice of the Isle of Man; Customer means those customers of the Transferor to whom a Relevant Annuity Policy has been issued and any dependent or minor dependent or other person entitled to receive a payment under the Relevant Annuity Policy; Customs and Excise means the Customs and Excise Division of the Isle of Man Government; Effective Time means 00.01 BST on 6 June 2017, being the time and date at which this Scheme will become effective; Encumbrance means any mortgage, charge, pledge, security, lien, option, restriction, right of first refusal, right of pre-emption, third party right or interest, any other encumbrance or security interest of any kind and any other type of preferential arrangement (including title, transfer and retention arrangements) having a similar effect; Excluded Annuities means any Relevant Annuity Policy under which any liability remains unsatisfied or outstanding at the Effective Time and which is: a Relevant Annuity Policy which is not otherwise capable of being transferred pursuant to section 21 of and Schedule 2 to the Insurance Act at the Effective Time; or a Relevant Annuity Policy in respect of which a Customer is an Excluded Person at the relevant Effective Time; Excluded Assets means all property of the Transferor other than the Transferring Assets and Residual Assets; Excluded Liabilities means any liability or obligation (including contingent or prospective) whatsoever and wheresoever arising (other than any liability or obligation which would not have arisen but for (i) a change in law, statute or regulation after the Effective Time; or (ii) law statute or regulation not in force at the Effective Time): which results from or arises in connection with any action taken (including any investigation, decision, penalty charged, fine levied or as a result of any judgement or any arbitration) by any Regulatory Authority in respect of the Transferor s sale, management or conduct of the Relevant Annuity Policies prior to the Effective Time (including, for the avoidance of doubt, the Transferor s compliance, or noncompliance, with any rules, regulations, directions or guidance (whether formal or informal) set by or given by any such Regulatory Authority); and Page 2
in respect of Taxation for which the Transferor is primarily liable, whenever falling due for payment which relates to, or arises in respect of, the Relevant Annuity Policies and are attributable to the period prior to the Effective Time to the extent that the liability to such Taxation does not transfer to the Transferee as a matter of law (or would not transfer to the Transferee as a matter of law if any change in law after the date of the Reassurance Deed were ignored); Excluded Person means a Customer who at the relevant time is identified as on an Exclusions List; Exclusions List means any of the Consolidated Lists of Financial Sanctions Targets of HM Treasury in the United Kingdom and any equivalent list(s) of the United States Office of Foreign Assets Control and any equivalent list(s) of the European Union and the Isle of Man, in each case as amended, supplemented, updated or renamed from time to time and such other list(s) as may be required as a result of a change in regulatory requirements or as the Transferor and the Transferee may agree prior to the Effective Time; FCA means the United Kingdom's Financial Conduct Authority or its successors from time to time; FSMA means the Financial Services and Markets Act 2000 of Parliament; HMRC means HM Revenue & Customs in the United Kingdom or its successors from time to time; Independent Actuary means Tim Roff of Grant Thornton or any other independent actuary for the purpose of paragraph 2 of Schedule 2 to the Insurance Act; Insurance Act means the Insurance Act 2008; IOMFSA means the Isle of Man Financial Services Authority; ITD means the Income Tax Division of the Isle of Man Government; Long-Term Insurance Business means the business of effecting or carrying out Long- Term Insurance Contracts; Long-Term Insurance Contracts means contracts of insurance falling within the definition of long-term business as set out in regulation 3 to the Insurance Regulations 1986; Loss means: all direct losses (including, for the avoidance of doubt, direct loss of profits), liabilities (including any settlement payment irrespective of whether legal liability has been admitted or determined), damages, penalties, costs relating to disciplinary actions and fines, but excluding punitive, special, consequential or indirect loss (such as, for the avoidance of doubt, indirect loss of profits or loss of goodwill); and all costs and expenses (including legal fees) properly incurred as a result of investigating, defending or settling a claim or in connection with any threatened, pending or actual proceeding; Order means an order made by the Court pursuant to section 21 of and Schedule 2 to the Insurance Act sanctioning this Scheme and any order (including, without limitation, any -3-
subsequent order) in relation to this Scheme made by the Court pursuant to section 21 of and schedule 2 to the Insurance Act; Parliament means the Parliament of the United Kingdom; PRA means the United Kingdom's Prudential Regulation Authority and its successors from time to time; Proceedings includes any action or other legal or administrative proceedings or step (whether direct or indirect, by way of a claim, demand, legal proceedings, execution of judgment, arbitration, complaint or otherwise howsoever) including arbitration, mediation, adjudication, any other dispute resolution procedure (whether or not it involves submission to any court), any judicial, quasi-judicial, administrative or regulatory review or process or any complaint or claim to any ombudsman or other proceedings for the resolution of a dispute or claim, in each case whether current, future, pending, threatened or otherwise; Reassurance Deed means the Annuities Reassurance and Transfer Deed entered into between the Transferor and the Transferee on 24 April 2015, as supplemented by deeds of addendum between the Transferor and Transferee dated 10 December 2015 and 21 June 2016; Records means all documents, files and other records, whether in physical or electronic form, relating to the Transferring Annuities, the Transferring Assets, the Residual Assets, the Transferring Liabilities and the Residual Liabilities which are: in the possession of, or under the control of the Transferor or its third party service providers; or in the possession of, or under the control of the Transferee pursuant to the Reassurance Deed; Regulatory Authority means, as the context requires, the IOMFSA, the Isle of Man Information Commissioner, the ITD, Customs and Excise, the FCA, the PRA, the Department for Business, Innovation and Skills of the United Kingdom, HMRC, the Information Commissioner s Office in the United Kingdom and such other regulatory authority which has responsibility for regulating businesses such as that relating to the Relevant Annuity Policies from time to time in the Isle of Man and the UK; Regulatory Requirements means all applicable laws, statutes, regulations, rules, orders, directives, requirements, guidance, standards, guidelines and industry codes of practice in each case having legal effect stipulated by any legal, governmental or regulatory body with powers of direction over the relevant entity, including the rules of any stock exchange or listing authority, in each case existing and in force from time to time, where relevant in the context; Relevant Annuity Policies means those immediate pension annuity policies which were written under Manx law or issued to a person resident in the Isle of Man and which are identified in the data set out on the CD-ROM entitled ZAL: Annuity and Beneficiary Data attached at Schedule 1 to this Scheme (two copies of which have been initialled by or on behalf of the Transferor and the Transferee for the purposes of identification only) and which are in force or under which there is a continuing liability to make a contractual payment under the terms thereof at the Effective Time; -4-
Residual Assets means: any Transferring Asset of the Transferor to be transferred pursuant to this Scheme: (i) the transfer of which to the Transferee pursuant to this Scheme requires, at the Effective Time, either: (A) (B) the consent of any person (other than the Transferee, the Transferor or the Court); or the waiver by any person of any right to acquire, or to be offered the right to, or to offer to, acquire or procure the acquisition by some other person of, all or any part of such property, being a right which directly or indirectly arises or is exercisable as a consequence of such transfer being proposed or taking effect; and (ii) which the Court does not have jurisdiction to transfer pursuant to section 21 of and Schedule 2 to the Insurance Act, or which (despite having such jurisdiction) the Court determines, notwithstanding section 21 of and Schedule 2 to the Insurance Act, not so to transfer or the transfer of which is not recognised by the laws of any relevant jurisdiction in which such property is situated; (c) (d) (e) any Transferring Assets of the Transferor to be transferred pursuant to this Scheme which the Transferor and the Transferee agree in writing prior to the Effective Time shall not be transferred at the Effective Time; any other interest of the Transferor in any property or any agreement relating to any property which the Transferor and the Transferee shall agree in writing prior to the Effective Time should be transferred pursuant to this Scheme in conjunction with any property referred to in paragraphs or of this definition; any proceeds of sale or income or other accrual or return whatsoever, whether or not in any case in the form of cash, earned or received from time to time after the Effective Time in respect of any property referred to in paragraphs or or (c) of this definition; and any Transferring Asset which cannot be transferred or vested to the Transferee pursuant to this Scheme for any other reason; Residual Liabilities means any liability under or in connection with the Transferring Annuities and in connection with the Transferring Assets: (c) the transfer of which liability to the Transferee pursuant to this Scheme requires, as at the Effective Time, the consent or waiver of any person (other than the Transferee, the Transferor or the Court) and which the Court either does not have jurisdiction to transfer to the Transferee pursuant to section 21 of and Schedule 2 to the Insurance Act or which (despite having such jurisdiction) the Court determines, notwithstanding section 21 of and Schedule 2 to the Insurance Act, not so to transfer; or which is attributable to or connected with a Residual Asset and arises at any time before the Subsequent Transfer Date applicable to that Residual Asset; or which cannot be transferred to or vested to the Transferee pursuant to this Scheme for any other reason; -5-
Scheme means this Scheme in its original form or with or subject to any modification, addition or condition which may be approved or imposed in accordance with section 21 of and Schedule 2 to the Insurance Act; Subsequent Transfer Date means, in relation to any Residual Asset or Residual Liability, the date after the Effective Time on which such Residual Asset or Residual Liability is to be transferred to the Transferee namely: in respect of any Residual Asset falling within paragraph of the definition thereof, and of any Residual Liability falling within paragraph of the definition thereof, the date on which the requisite consent, waiver or order to enable the same to be transferred to the Transferee upon the terms of this Scheme is: (i) (ii) (iii) obtained; no longer required; or dispensed with by Order of the Court; (c) (d) in respect of any Residual Asset falling within paragraphs or (c) of the definition thereof and of any Residual Liability which falls within paragraph of the definition thereof, the date on which the parties agree that the transfer of the relevant Residual Asset shall take effect; in the case of any Residual Asset falling within paragraph (d) of the definition thereof, the date on which such Residual Asset is received or earned by the Transferor; and in respect of any Residual Asset falling within the paragraph (e) of the definition thereof, or of any Residual Liability falling within paragraph (c) of the definition thereof, the date upon which the impediments to the transfer pursuant to the terms of this Scheme has been removed; Tax or Taxation means any and all forms of taxation and statutory, governmental, supra governmental, state, principal, local governmental or municipal impositions, value added tax, duties, contributions, charges and levies in the nature of taxation and all withholdings or deductions in respect thereof of whatever nature, in each case whether of the Isle of Man, the United Kingdom or elsewhere and whenever imposed, and all penalties, charges, costs and interest relating thereto; Transferee means Rothesay Life Plc, a company incorporated in England and Wales under registered number 06127279 whose registered office is at Level 25, The Leadenhall Building, 122 Leadenhall Street, City of London EC3V 4AB; Transferee Actuary means the Actuary of the Transferee; Transferee Board means the Board of the Transferee; Transferee Group means the Transferee and any subsidiaries, subsidiary undertakings or associated undertakings of the Transferee, any holding companies of the Transferee and any subsidiaries, subsidiary undertakings or associated undertakings of such holding companies from time to time as each is defined in the Companies Act 2006 of Parliament; Transferor means Zurich Assurance Ltd, a company incorporated in England and Wales under registered number 02456671 whose registered office is at The Grange, Bishops Cleeve, Cheltenham, Gloucestershire GL52 8XX; -6-
Transferor Actuary means the Actuary of the Transferor; Transferor Board means the Board of the Transferor; Transferor Group means the Transferor and any subsidiaries, subsidiary undertakings or associated undertakings of the Transferor, any holding companies of the Transferor and any subsidiaries, subsidiary undertakings or associated undertakings of such holding companies from time to time as each is defined in the Companies Act 2006 of Parliament; Transferring Annuities means the Relevant Annuity Policies other than the Excluded Annuities; Transferring Assets means all of the following as at the Effective Time: the rights, benefits and powers (whether actual or contingent) of the Transferor whatsoever under or by virtue of the Transferring Annuities; and the Records, including without limitation, all rights, title and interest of the Transferor in the Records; but excluding (i) the Residual Assets, (ii) the Excluded Assets and (iii) any rights, benefits and powers under the Excluded Annuities and (iv) any assets already transferred to the Transferee under the Reassurance Deed; Transferring Business means certain annuity business of the Transferor to be transferred under this Scheme, comprising the Transferring Annuities, Transferring Assets, Transferring Liabilities, Residual Assets and Residual Liabilities; Transferring Liabilities means all the liabilities (including contingent and prospective liabilities) whatsoever and wheresoever arising, attributable to or in connection with the Transferring Annuities but excluding the Excluded Liabilities; UK or United Kingdom means the United Kingdom of Great Britain and Northern Ireland; and VAT means value added tax and any similar sales or turnover tax. 1.2 In this Scheme: (c) (d) assets includes property, rights and powers of any description; liabilities means all liabilities, duties and obligations of every description, whether deriving from contract, common law, statute or otherwise, whether present or future, actual or contingent, ascertained or unascertained or disputed and whether owed or incurred severally or jointly or as principal or surety and liability means any one of them; property includes property, assets, rights (including contingent rights as to the repayment of Tax), benefits and powers of every description (whether present or future, actual or contingent) and, for the avoidance of doubt, includes investment management agreements, distribution agreements, service agreements and external and internal reinsurance agreements (where relevant) and includes property held on trust and any interest whatsoever in any of the foregoing; transfer includes (as the context may require) assign, assignation or assignment, dispose or disposal or convey or conveyance ; -7-
(e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) any reference to the singular shall (where appropriate) include a reference to the plural and vice versa and any reference to the masculine shall include a reference to the feminine and neuter and vice versa (unless the context otherwise requires); save as expressly provided otherwise, any reference in this Scheme to an enactment, a statutory provision or any subordinate legislation shall be deemed to include a reference to that enactment, statutory provision or subordinate legislation as amended, replaced or re-enacted from time to time after the date of this Scheme and to any instrument or order made from time to time after the date of this Scheme under such enactment, statutory provision or subordinate legislation; expressions used in this Scheme which have meanings under the Insurance Act shall bear those meanings (unless the context otherwise requires); any references to paragraphs or Parts are to paragraphs or Parts of this Scheme (unless the context otherwise requires); headings are inserted for convenience only and shall not affect the construction of this Scheme; any reference to a person shall include a reference to any individual, company, firm, partnership, joint venture, association, organisation, trust or agency, whether or not having a separate legal personality; if a period of time is specified from a given day or date or from the day or date of an actual event, it shall be calculated exclusive of that day or date; any reference to writing shall include any modes of reproducing words in a legible and non-transitory form; any reference to a document in the form agreed is to the form of the relevant document agreed between the parties in accordance with this Scheme and for the purpose of identification initialled by or on behalf of the parties prior to the date on which the Court sanctions this Scheme; the expression variation or varied shall include any variation, supplement, deletion, replacement or termination, however effected; and any reference to including shall mean including without limitation. 2. INTRODUCTION 2.1 At the date of this Scheme, the Transferor has permission under section 22(1) of the Insurance Act to carry on insurance business (including Long-Term Insurance Business) in or from the Isle of Man. 2.2 At the date of this Scheme, the Transferring Annuities are reassured to the Transferee under the Reassurance Deed. 2.3 It is proposed that: all of the Transferring Annuities, Transferring Assets, Transferring Liabilities, Residual Assets and Residual Liabilities shall, in accordance with this Scheme, be transferred to the Transferee and that the Order be made accordingly for the sanction of this Scheme under section21 of and Schedule 2 to the Insurance Act; and -8-
by the Order referred to in paragraph 2.3 provision be made for, among other matters, the transfers of the Transferring Annuities, Transferring Assets, Transferring Liabilities, Residual Assets and Residual Liabilities from the Transferor to the Transferee pursuant to section 21 of and Schedule 2 to the Insurance Act. Excluded Annuities, Excluded Assets and Excluded Liabilities, however, will not transfer to the Transferee under this Scheme but instead will remain with the Transferor. 3. TRANSFER OF THE TRANSFERRING BUSINESS TO THE TRANSFEREE 3.1 At the Effective Time, the Transferring Annuities and Transferring Assets, will transfer and vest in full to the Transferee according to the terms of the Order without any further act or instrument. 3.2 At each Subsequent Transfer Date, each Residual Asset to which such Subsequent Transfer Date applies and all the interest of the Transferor in it shall, by the Order and without any further act or instrument, be transferred to and be vested in the Transferee. 3.3 At the Effective Time, each Transferring Liability shall, by the Order and without any further act or instrument, be transferred to and become a liability of the Transferee and shall cease to be a liability of the Transferor. 3.4 At each Subsequent Transfer Date, each Residual Liability to which such Subsequent Transfer Date applies will, by the Order and without any further act or instrument, be transferred to and become a liability of the Transferee and shall cease to be a liability of the Transferor. 3.5 At and with effect from the Effective Time or Subsequent Transfer Date, as the case may be, and without prejudice to any other provision of this Scheme, all references to the Transferor or Transferor Group in any contract between the Transferor and any other party, or in any document or instrument, to the extent evidencing title to or the benefit or burden of the Transferring Annuities, the Transferring Assets, the Residual Assets, the Transferring Liabilities and the Residual Liabilities shall, in so far as they are transferred to the Transferee, be read and construed as if the same were references to the Transferee so that such contract, document or instrument shall operate as if such references had always been to the Transferee or Transferee Group (as applicable) rather than the Transferor or Transferor Group. 3.6 Neither the transfer of the Transferring Annuities nor this Scheme nor anything done or omitted to be done in connection with the transfer of the Transferring Annuities or this Scheme shall, in relation to the Transferring Annuities or any Transferring Assets, the Residual Assets, the Transferring Liabilities and the Residual Liabilities or any other asset, property, liability or business of any member of the Transferee whether before or after the Effective Time: invalidate, discharge or result in the termination of any Transferring Annuity, agreement, instrument, trust deed, indenture, Encumbrance, right, interest, benefit, power, obligation or title; or constitute a breach of or default, event of default, potential event of default, termination event, mandatory prepayment event, enforcement event, perfection event or other similar event or condition (however described) under, or allow any person to terminate, any Transferring Annuity, agreement, instrument, trust deed, indenture, Encumbrance, right, interest, benefit, power, obligation or title; or -9-
(c) (d) (e) (f) require any registration, re-registration or filing of any amendment to any existing registration or filing in respect of any Transferring Annuity agreement, instrument, trust deed, indenture, Encumbrance, right, interest, benefit, power, obligation or title; or require any person to perform any new or additional obligation or take any new or additional step or action, including the giving of any notice, the obtaining of any consent, approval or determination, the accession to any agreement, the payment of any fee, cost, expense, interest or other amount, the granting of any new or additional Encumbrance or the transfer of any asset or property; or entitle or require any person to exercise any right or remedy, to reduce, suspend, delay, alter or discharge its rights or obligations, to accelerate, terminate, suspend, delay, alter or discharge the performance of any rights or obligations or otherwise to vary, amend, disclaim, repudiate or terminate any Transferring Annuity, agreement, instrument or Encumbrance; or affect the enforceability, priority or ranking of any Encumbrance. 3.7 No Excluded Assets or Excluded Liability will be transferred to or vested in the Transferee under or by virtue of the terms of this Scheme. 4. CONTINUITY OF PROCEEDINGS 4.1 On and with effect from the Effective Time, any Proceedings to the extent issued or served in connection with the Transferring Annuities, the Transferring Assets or the Transferring Liabilities relating to the Transferor shall be continued by or against the Transferee and the Transferee shall be entitled to all claims, counterclaims, defences to counterclaims and rights of set-off that were or would have been available to the Transferor in relation to those Proceedings. 4.2 On and with effect from the Subsequent Transfer Date applicable thereto, any Proceedings to the extent issued or served in connection with the relevant Residual Asset or the relevant Residual Liability which relate to a Transferring Asset or a Residual Asset which is to be transferred on such Subsequent Transfer Date relating to the Transferor shall be continued by or against the Transferee and the Transferee shall be entitled to all claims, counterclaims, defences to counterclaims and rights of set-off that were or would have been available to the Transferor in relation to those Proceedings. Until such Subsequent Transfer Date, the relevant Proceedings shall be continued by the Transferor. 4.3 Any Proceedings to the extent issued or served which are not to be continued by or against the Transferee pursuant to paragraphs 4.1 or 4.2 shall be continued by or against the Transferor and the Transferor shall remain entitled to all defences, claims, counterclaims, defences to counterclaims and rights of set-off that were or would have been available to it in relation to those Proceedings. 5. EXCLUDED ANNUITIES 5.1 The Excluded Annuities and any liabilities attached to the Excluded Annuities will not transfer under this Scheme. 5.2 Each Excluded Annuity, other than those falling within limb of the definition of Excluded Annuities, will continue to be reassured into the Transferee under the terms of the Reassurance Deed. -10-
6. PREMIUMS AND MANDATES 6.1 All premiums attributable or referable to the Transferred Annuities, if any, shall on and after the Effective Time be payable to the Transferee. 6.2 Any direct debit mandate, standing order or other instruction or authority in force at the Effective Time (including, without limitation, any instructions given to a bank by its customer in the form of direct debit or standing order) and providing for the payment by a bank or other intermediary of premiums or other amounts payable to the Transferor under any Transferred Annuity or Transferred Asset shall thereafter take effect as if it had provided for and authorised such payment to the Transferee. 6.3 Any mandate or other instruction or authority in force at the Effective Time as to the manner of payment by the Transferor of any sum payable under any Transferred Annuity shall continue in force as an effective mandate, instruction or authority to the Transferee. 7. RIGHTS AND OBLIGATIONS UNDER TRANSFERRING ANNUITIES 7.1 At the Effective Time, the Transferee shall become entitled to all the rights, benefits and powers of the Transferor whatsoever subsisting at the Effective Time under or by virtue of the Transferring Annuities. 7.2 A policyholder in respect of a Transferring Annuity shall, on and with effect from the Effective Time, become entitled, in succession to, and to the exclusion of, any rights which he may have had against the Transferor under such Transferring Annuity, to the same rights and options against the Transferee as were available to him against the Transferor under such Transferring Annuity and (as regards a Transferring Annuity under which premiums or other sums attributable or referable thereto continue to be payable by him) shall on and with effect from the Effective Time account to the Transferee for any further or additional premiums or other sums attributable or referable thereto, if any, as and when the same become due and payable. 7.3 If any person entitled to do so with respect to a Transferring Annuity exercises any right or option granted under the terms of that Transferring Annuity and either: the right or option provides for a new, additional or replacement policy to be issued or amendments to be made to an existing Transferring Annuity; or it is appropriate in the opinion of the Transferee Board, having regard to the advice of the Transferee Actuary, in order to comply with that right or option to issue a new, additional or replacement policy or, as the case may be, amend an existing Transferring Annuity, such person shall be entitled to require that the obligation thereby arising shall be satisfied by the issue or amendment (as the case may be) by the Transferee of a policy which complies with the terms of such right or option. Without prejudice to such entitlement, if the Transferee is not at the time of the exercise of such right or option writing policies complying exactly with the policy to which such person is entitled pursuant to the right or option, the Transferee shall be entitled to offer to such person as an alternative (and, if accepted, in lieu thereof) the policy commonly offered by the Transferee or any other member of the Transferee Group which the Transferee in its absolute discretion considers to be the nearest equivalent policy of the Transferee or such other member of the Transferee Group (as the case may be) at that time. -11-
7.4 All references in any Transferring Annuity to the Transferor, the Transferor Board, the Transferor Actuary, the Transferor auditor or any other officers, employees or agents of the Transferor shall, with effect on and from the Effective Time, be read as references to the Transferee, the Transferee Board, the Transferee Actuary, the Transferee auditor or any other officers, employees or agents of the Transferee respectively or, where appropriate, agents of the Transferee to which the administration or investment management of the relevant part of the business carried on by the Transferee has been delegated. In particular, and subject to the other provisions of this Scheme, all rights and/or duties exercisable or expressed to be exercisable or responsibilities to be performed by the Transferor, the Transferor Board, the Transferor Actuary, the Transferor auditor or any other officers, employees or agents of the Transferor in relation to any of the Transferring Annuities shall, with effect on and from the Effective Time, be exercisable or required to be performed by the Transferee, the Transferee Board, the Transferee Actuary, the Transferee auditor or any other officers, employees or agents of the Transferee respectively, and accordingly all obligations of the Transferor or any officers, employees or agents of the Transferor in relation to any of the Transferring Annuities shall, with effect on and from the Effective Time, cease and determine. All references in a Transferring Annuity to the Transferor Group shall, where the context requires, be read and construed with effect from the Effective Time as references to the Transferee Group. 8. DECLARATION OF TRUST BY THE TRANSFEROR 8.1 If any Residual Assets, or other property of the Transferor that is intended to transfer under this Scheme, do not transfer to the Transferee under this Scheme at the Effective Time, the Transferor will, from the Effective Time, subject to receiving all necessary consents or waivers (if any), hold such property and any associated proceeds of sale, income, or other accrued rights or returns as trustee for the Transferee. 8.2 The Transferee shall indemnify the Transferor on demand against any Losses incurred in connection with its trusteeship under this Scheme. 9. INDEMNITIES 9.1 From the Effective Time until the relevant Subsequent Transfer Date, the Transferee shall discharge on the Transferor s behalf or, failing that, shall indemnify the Transferor against each Residual Liability, provided always that the Transferee shall indemnify the Transferor in respect of any Losses incurred by the Transferor in connection therewith. 9.2 In respect of each Residual Liability, to the extent that the Transferee has discharged such liability on the Transferor s behalf in accordance with paragraph 9.1 and the Transferor recovers under a policy of indemnity insurance (other than any policy with a member of the Transferor Group) or recovers pursuant to a claim or right of recovery against a third party, a sum which compensates the Transferor (in whole or in part), the Transferor shall (i) promptly notify the Transferee of the fact and (ii) pay to the Transferee, as soon as reasonably practicable after receipt, an amount equal to the amount recovered from the third party, providing always that the Transferee shall indemnify the Transferor in respect of any reasonable costs, claims, charges and other liabilities incurred by the Transferor in recovering the same. The Transferor shall use reasonable endeavours to recover any such sum. 9.3 At and from the Effective Time, the Transferor shall in respect of the Excluded Assets, Excluded Annuities and the Excluded Liabilities, indemnify the Transferee against any and -12-
all Losses arising in respect of all Excluded Assets, Excluded Annuities and Excluded Liabilities. 9.4 Where the Transferor is entitled to receive an amount pursuant to paragraphs 9.1, 9.2 or 9.3, it shall be entitled to receive such amount as, after payment of any liability to Tax in respect of the amount receivable and/or any deduction or withholding required to be made from any payment under paragraphs 9.1, 9.2 or 9.3, will result in the receipt of an amount equal to the liability indemnified against. MISCELLANEOUS PROVISIONS 10. DATA PROTECTION 10.1 At and with effect from the Effective Time, the Records, which may include personal data protected under the Data Protection Act 2002, shall be transferred to the Transferee and may be used by the Transferee for, and disclosed by the Transferee to, and used by, any agent or contractor of the Transferee to the same extent that they were used by the Transferor and its agents or contractors prior to the Effective Time for all purposes in connection with the Transferring Annuities including, in particular, administration thereof and all matters relevant or incidental thereto, and no consent from the individual policyholders in respect of such disclosure, transfer of records and use shall be required. 10.2 To the extent that an authority has been given to the Transferor in connection with a Transferring Annuity by the policyholder thereof or by any other relevant person, whether pursuant to the Data Protection Act 2002 or otherwise, such authority shall, on and after the Effective Time, be deemed to have been given to the Transferee. 11. THE EFFECTIVE TIME 11.1 This Scheme will not become effective at the Effective Time unless the Court has made an Order under section 21 of and Schedule 2 to the Insurance Act sanctioning this Scheme at or before the Effective Time. 11.2 Subject to paragraphs 11.1, 12.2 and 12.4 this Scheme shall become effective at the Effective Time or such other time and date as the Transferor and the Transferee, acting by their respective boards, may agree in writing (being a date and time falling after the making of the Order sanctioning this Scheme), provided that if such time and date for the Scheme to become effective is: after the Effective Time but prior to 00.01 BST on 30 August 2017, this Scheme will only become effective on such date and time if the conditions set out in paragraph 12.2 are satisfied; or on or after 00.01 BST on 30 August 2017, this Scheme will only become effective on such date and time if the conditions set out in paragraph 12.2 are satisfied. 12. MODIFICATION OR ADDITIONS TO THIS SCHEME 12.1 Subject to paragraphs 12.2 and 12.3, the Transferor and the Transferee may at any time before the Effective Time consent for and on behalf of the persons bound by this Scheme and all other persons concerned to any modification or addition to this Scheme or to any further condition or provision affecting the same which, prior to its sanction of this Scheme, the Court may approve or impose. -13-
12.2 If the Transferor and Transferee agree that the transfer to the Transferee of the Transferring Business should become effective after 00.01 GMT on BST on 6 June 2017 but prior to 00.01 BST on 30 August 2017, the Transferor and Transferee shall, as soon as reasonably practicable, inform the IOMFSA in writing of the revised Effective Time, including whether the Transferor and Transferee propose that any further communications should be sent to holders of Transferring Annuities in connection with the revised Effective Time. 12.3 If the Transferor and Transferee agree that the transfer to the Transferee of the Transferring Business should become effective on or after 00.01 BST on 30 August 2017, the Transferor and Transferee must apply to the Court for a further order, specifying any time and date on or after 00.01 BST on 30 August 2017 which, subject to the consent of the Court, shall then become the Effective Time for the purposes of this Scheme and this Scheme shall then become operative on and from the time and date so specified, provided that: (c) the IOMFSA shall be notified in advance and as soon as reasonably practicable, and shall have the right to be heard at, any hearing of the Court at which such application is considered; such application shall be accompanied by a certificate from the Independent Actuary to the effect that the proposed amendment will not materially adversely affect the benefit expectations of holders of the Transferring Annuities or existing policyholders of the Transferor or the Transferee; and a notice of the making of such order is published on the website of the Transferor within 5 days of the making of such further order. 12.4 If the transfer to the Transferee of the Transferred Business has not become effective on or before 11.59 pm on 31 December 2018 (or such later date, if any, as each of the Transferor and the Transferee may agree and the Court may approve), the provisions of this Scheme shall lapse. 12.5 Subject to paragraph 12.6, any amendment to this Scheme after the Effective Time must be: (c) approved, if applicable, by the Court; notified to the IOMFSA, who shall have the right to attend and be heard at any hearing of the Court (if applicable) at which such application is considered; and accompanied by a certificate from an independent actuary, approved for the purpose by the IOMFSA or in respect of the appointment of whom the IOMFSA has not otherwise indicated that it has any objection, to the effect that in his opinion the proposed amendment will not materially adversely affect the reasonable expectations (including taking account of appropriate obligations to treat customers fairly) of the holders of Transferring Annuities or Excluded Annuities in any material respect. 12.6 Any amendment to this Scheme will not require Court approval where such amendment is: considered by the Transferor and the Transferee to be minor and/or technical; to correct manifest errors, provided that the IOMFSA has been notified of the same and has indicated that it does not object thereto; -14-
(c) (d) (e) required to reflect any change in any Regulatory Requirement or in the interpretation or application of any Regulatory Requirement which has or will have any implications for the Transferor or Transferee; necessary to reflect any changes in the actuarial practices relating to, or techniques for the management of, the Transferring Annuities; or required to protect the rights and reasonable expectations of the Transferring Annuity policyholders. 12.7 Any amendment to this Scheme will not require the consent of the Transferor unless such amendment is in the Transferee s reasonable opinion, likely to increase the Transferor s liabilities or Losses under this Scheme. 13. COSTS AND EXPENSES 13.1 The Transferor and Transferee will bear their own costs and expenses in relation to preparing and carrying out this Scheme. 13.2 Notwithstanding paragraph 13.1, the Transferee will bear all notarisation fees or other documentary transfer or transaction duties including in each case any related penalties arising as a result of this Scheme. 14. SUCCESSOR AND ASSIGNS 14.1 This Scheme will bind and enure to the benefit of the successors and assigns of the Transferor and the Transferee. 15. VAT 15.1 Subject to paragraph 15.2, all sums payable under or pursuant to this Scheme are (unless expressly stated otherwise) exclusive of any applicable VAT. Where, under or pursuant to this Deed, any party (the supplier) makes a supply to any other party (the recipient) for VAT purposes and VAT is or becomes chargeable on that supply, subject to paragraph 15.2 the recipient shall, subject to the receipt of a valid VAT invoice, pay to the supplier (in addition to, and at the same time as, any other consideration for that supply) an amount equal to such VAT. 15.2 If Customs and Excise or HMRC determine that VAT is chargeable in respect of the Transfer, the Transferee shall pay to the Transferor 5 Business Days after receipt of notice from the Transferor of that determination and against delivery of a valid VAT invoice 50 per cent. of the amount of any VAT which is chargeable in respect of the Transfer. 15.3 This paragraph 15 is without prejudice to any other provision in relation to VAT that may be agreed between the Transferor and Transferee. 16. THIRD PARTIES Third parties may not enforce any term of this Scheme pursuant to the Contracts (Rights of Third Parties) Act 2001. 17. GOVERNING LAW This Scheme is governed by, and shall be construed in accordance with, Isle of Man law. -15-
Schedule 1 CD of Relevant Annuity Policies [To be provided at the sanction hearing] -16-