Trust Deed of Liz Dengate Thrush Foundation

PARTIES

("The Settlor")
The Internet Society of New Zealand Incorporated.

("The Trustees")
Peter Charles Dengate Thrush Wellington, Barrister,
Neville Garde Austen Young of Wellington, Solicitor,
and
Peter John Macaulay of Auckland, Consultant

BACKGROUND

• The Settlor is an incorporated society formed for purposes which include promoting the use of, and educating people about, the information and communications technologies known as the Internet;
• The Settlor wishes to establish and register under the Charitable Trusts Act 1957 a Trust to be known as the Liz Dengate Thrush Foundation ("the Foundation"), in memory of Liz Dengate Thrush who worked tirelessly to promote the use of internet technologies in education and entrepreneurship, and who died tragically before seeing the results of many of her projects.
• The purposes of the Foundation will be to assist in providing educational advancement and the development of entrepreneurship skills for New Zealanders using internet technologies and information made accessible and available for those purposes.
• The Settlor has paid the sum of $10 to the Trustees to be held upon the trusts set out in this Deed.
• The Trustees have agreed to act as trustees of the Foundation.
• This Deed is being completed by the Settlor and the Trustees to establish the terms of the Foundation.

THIS DEED WITNESSES

1. The Settlor hereby settles the sum of $10.00 on the Trustees as an initial settlement of the Foundation.

2. The Trustees agree to act as trustees on the terms set out in this Deed.

PART 1

ESTABLISHMENT, PURPOSES AND POWERS OF THE FOUNDATION  

1. Interpretation and Definitions

1.1 In this Deed, unless the context otherwise requires:-

“Appointor” means any of those persons having the power to appoint and remove Trustees of the Foundation pursuant to clause 15;

"Foundation" means the trust established by this deed and known as the Liz Dengate Thrush Foundation;

"Foundation Assets" means all money, investment, property, and assets from time to time owned or held by the Foundation;

“Internet” means the information and communications technologies known as the internet, including their future developments and the information made accessible and available from them;

“InternetNZ” means the Internet Society of New Zealand Incorporated or any body established as a successor organisation to that body;

"Major Transaction" means a transaction, undertaking, agreement or arrangement that has or is likely to have the effect of the Trustees acquiring rights or interests or incurring obligations or liabilities the value of which are more than 25% of the value of the Foundations Assets at that time;

“Purposes” means the purposes of the Foundation as set out in clause 4;

"Related Party" means:

• any of the Trustees from time to time; or
• any company, partnership, trust or other entity in which a Trustee or any spouse of a Trustee is financially interested whether as a shareholder, partner, director, employee, beneficiary or otherwise; or
• any spouse of a Trustee;

"Special Resolution" means a special resolution of Trustees passed in the manner provided in clause 17.3(d) or 19.1(a);

"The Trustees" means the trustees of the Foundation from time to time , whether original, additional or substituted, and, if the Trustees have at any time become incorporated, includes their body corporate;

"this Deed" means this deed as amended from time to time in accordance with the powers contained herein;

1.2 A person includes any individual, company, corporation, firm, partnership, joint venture, association, organisation, trust, state, or agency of state (in each case whether or not having separate legal personality).

1.3 Headings and marginal notes are included for convenience only and do not affect the interpretation of this Deed.

1.4 This Deed is binding upon all parties and their respective successors and permitted assigns.

1.5 Where the context permits words describing the singular include the plural and vice versa and words imputing masculine, feminine or neuter gender include all genders.

2. Establishment of the Foundation

2.1 The Foundation shall comprise all Foundation Assets from time to time held by the Trustees upon the trusts of this Deed including the income arising from them.

2.2 The Foundation Assets shall be held on trust by the Trustees and shall be managed and administered on the terms contained in this Deed.

2.3 The Foundation shall commence on the date of this Deed and shall continue until terminated pursuant to clause 14.

3. Name of the Foundation

3.1 The name of the Foundation is the " Liz Dengate Thrush Foundation ".

4. Purposes of the Foundation (the "Purposes"):

4.1 The general Purposes of the Foundation are to assist in providing education and advancement of New Zealanders using the Internet and information made accessible and available from the Internet . In particular, the Foundation is established to provide money, property or benefits to promote and encourage the wider understanding, development and use of the Internet for education and for developing entrepreneurship skills of the people of New Zealand. Without prejudice to the generality of those purposes, specific examples of typical purposes or projects within the general purposes include:

• To promote and assist in the funding of projects to assist individuals and communities, with using, acquiring or developing educational programmes using the Internet ;
• To promote the confidence and capability of the people of New Zealand to use the internet in business;
• To promote and assist in the funding of projects to develop, enhance or promote entrepreneurship using the Internet.
• The Purposes of the Foundation shall include:
• To support and undertake community initiatives which will further the general purposes set out in clause 4.1;
• To raise and collect funds and contributions to the Foundation Assets, to be held by the Foundation and applied to projects or persons for the furtherance of the Purposes;
• To encourage and assist others to contribute funds, assets and personal efforts to projects or persons for the furtherance of the Purposes;
• to give assistance in other ways to persons or bodies who are undertaking initiatives consistent with the Purposes;
• To promote the expansion of the work of the Foundation within New Zealand;
• To establish and maintain connections and co-operate with organisations in New Zealand and overseas that the Trustees determine to be advantageous to the Foundation;
• To do any lawful act that advances the Purposes, subject to the limitation that the Foundation is limited to Purposes which are charitable within New Zealand.

5. Powers of Foundation

5.1 Subject to the provisions of this Deed, and in particular clauses 5.2 and 5.3 and the requirements for formal resolutions of the Trustees, the Trustees shall have all the powers over and in respect of the Foundation and the Foundation Assets which they could exercise if they were the absolute and beneficial owners of the Foundation Assets. In particular, without derogating from the foregoing, the Trustees shall have full and absolute power, in furtherance of or ancillary to the Purposes, to:-

• adopt such means of making known the activities and Purposes as may seem expedient - in particular by advertising by press, by circulars and by periodicals whether through paper or by digital communication;
• Receive donations and seek and obtain sponsorship;
• Make donations and grant sponsorships;
• Pay all or any of the expenses incurred in connection with the incorporation and establishment of the Foundation;
• Obtain any statutory or similar order or Act of Parliament enabling the Foundation to carry or better carry any of its Purposes into effect or to effect any modification to the Trust Deed or for any other purpose which the Trustees consider expedient;
• To charge fees for services provided to third parties in pursuance of the Purposes;
• Employ, engage or contract with upon such terms and conditions as to salary, remuneration, contract, payment or other consideration any employee, manager, agent, professional advisor or other person (including any person who is a Trustee) as the Trustees think fit upon such terms as the Trustees deem expedient; provided that any payment to a Trustee must be fair and reasonable for the services provided;
• Agree, enter into, perform and enforce any contract, option or other right relating to any part or all of the Foundation Assets or proposed assets;
• Enter into any arrangements with any government, public body or authority to obtain any rights, authorities, concessions or clearances and to give any undertakings binding upon the Foundation, either generally or on conditions that the Trustees think fit, and to carry out, exercise and comply with any of the same;
• Participate in the rights and obligations, including obligations to contribute in any manner to the liabilities of the parties, under any partnership, joint venture, or other agreement relating to Foundation Assets or to act as the operator or one of the operators under any such agreement which relates to Foundation Assets;
• Place or permit to be placed any Foundation Assets in the name of any agent or nominee for such period or periods as the Trustees in their absolute discretion think fit;
• Appoint a custodian trustee for all or part of the Foundation Assets and to terminate any such appointment;
• Open a bank account or accounts in the names of the Trustees or the Foundation and operate that account in accordance with clause 12.
• Determine whether any money or other Foundation Asset is capital or income and what expenses ought to be paid out of income and capital respectively and also apportion blended funds. Every such determination or apportionment shall be final and binding on all persons interested in the Foundation provided that such determination is made in good faith and in accordance with the requirements of this Deed;
• Enter into management agreements and other contracts with any person for the purpose of organising and operating any activities;
• Enter into lease arrangements or other contracts for the management of assets;
• Purchase, sell, lease or otherwise deal with assets on behalf of the Foundation upon such terms as the Trustees think fit;
• Carry out and pay for repairs and improvements relating to Foundation Assets;
• Insure any Foundation Assets for such amounts and on such conditions as the Trustees determine;
• Instruct agents and consultants to act in relation to Foundation Assets or assets intended to be acquired by the Foundation;
• Make any Rules or Bylaws for the management and administration of the Foundation which are not inconsistent with the Purposes;
• Act on the opinion or advice of or information obtain from any financial adviser, lawyer, surveyor, broker, auctioneer, or other expert or professional, but so that the Trustees shall not be responsible for any loss depreciation or damage occasioned by acting or not acting in accordance with any opinion, advice or information;
• Do all such other things as in the opinion of the Trustees may be incidental or conducive to the attainment of any of the foregoing Purposes or the exercise of any of the foregoing powers.

5.2 The Trustees shall also have the additional powers specified in this clause 5.2, but will not exercise any of those additional powers unless the exercise of the power is authorised by Special Resolution or contingent upon the passing of a Special Resolution. Those additional powers are to:

(a) Lend money whether secured or unsecured to further the Purposes of the Foundation;

(b) Borrow money whether unsecured or secured;

(c) Guarantee the performance of any person in relation to any agreement, security, charge, contract, undertaking or promise and secure any such guarantee by mortgage, charge or other encumbrance over the whole or any part of the Foundation Assets;

(d) Create, grant, renew, alter, or vary any mortgage, charge, or other encumbrance over the whole or any part of the Foundation Assets for the purposes of the Foundation and upon such terms and conditions as the Trustees may in their absolute discretion think fit;

(e) Agree to the release, modification or variation of any rights, privileges or liabilities of any Foundation Assets from time to time or any securities given in relation thereto;

(f) Institute, prosecute, compromise and defend legal proceedings;

(g) Invest in pooled or mixed forms of investment in common with other investors;

(h) Incorporate any company or to purchase, establish and carry on any business or shares in a company or other commercial venture for the purposes of benefiting the Foundation.

5.3 The Trustees may not enter into a Major Transaction unless the Major Transaction is.

(a) Authorised by Special Resolution; or

(b) Contingent upon the passing of a Special Resolution.

6. Transactions with Related Parties

6.1 The Trustees may, if the Trustees in good faith are of the opinion that the particular transaction is on reasonable commercial terms and is in the best interests of the Foundation :

(a) sell, purchase or otherwise dispose of or acquire any asset to or from any Related Party;

(b) enter into any contract, agreement or other arrangement with any Related Party to provide management, administration or other services for the Foundation;

(c) enter into any other transaction with any Related Party in relation to the Foundation; or

(d) cause any Foundation Assets that comprise cash to be invested or lodged with any Related Party.

7. Trustees' indemnity and liability

7.1 The Trustees shall not be liable for:

(a) Any losses except losses arising from their own dishonesty, wilful default or wilful breach of trust or gross negligence; or

(b) Any act or attempted in exercise of or pursuant to any trust, power or discretion vested in them by this Deed; or

(c) Any omission or non-exercise in respect of any trust, power or discretion of the Trustee under this Deed.

7.2 The Trustees and every other person acting on behalf of the Trustees shall be indemnified out of Foundation Assets against all liabilities and expenses incurred by them in the exercise or attempted exercise of the trusts, powers and discretions vested in the Trustees pursuant to this Deed and in respect of any matter or thing done or omitted to be done in any way relating to this Deed and the Foundation. This indemnity shall extend to any payment made to any person whom the Trustees bona fide believe to be entitled to it, though it may be subsequently found that the person was not in fact entitled. The Trustees shall have a lien or charge on the Foundation Assets and may retain and pay out of any money in the Foundation all sums and amounts necessary to give effect to this indemnity.

7.3 The liability of the Trustees in connection with this Deed or at law shall at all times be limited to the Foundation Assets.

8. Delegation by Trustees

8.1 The Trustees shall have, to the extent permitted by law, full power to delegate to any one or more Trustees or to any attorney, agent or other person nominated or appointed by the Trustees, all or any of the powers, authorities and discretions exercisable by the Trustees under this Deed but without in any way releasing the Trustees from their obligations under this Deed. Without in any way affecting the generality of the foregoing the Trustees may in exercising this power of delegation;

(a) By power of attorney appoint any person to be the attorney or agent of the Trustees for such purposes and with such powers, authorities or discretions as the Trustees think fit with power for the attorney or agent to sub-delegate any such powers, authorities or discretions.

(b) Appoint by writing or otherwise any person to be agent or sub-agent of the Trustees as the Trustees may think necessary or proper for such purposes and with such powers, authorities and discretions (not exceeding those vested in the Trustees) as they think fit and to supersede or suspend any such agent or sub-agent for any reason as the Trustees think sufficient.

8.2 The Trustees shall be entitled to delegate any of their powers and duties under this Deed to any committee or committees consisting of such of the Trustees (or any other person) as the Trustees may appoint for such purpose.

9. Incorporation and Registration

9.1 The Trustees shall forthwith after the execution of this Deed apply for incorporation under the Charitable Trusts Act 1957.

9.2 The Trustees shall, as soon as practicable after the execution of this Deed, apply for registration in accordance with the Charities Act 2005.

9.3 The Trustees are authorised to make such applications on behalf of the Foundation.

10. Common Seal

10.1 Upon incorporation of the Foundation in accordance with clause 9.1 the Trustees shall procure a common seal for the Foundation and shall provide for its custody.

10.2 The Common Seal shall be used only as directed by a resolution of the Board, and shall be effective only when countersigned by two Trustees.

11. Investments

11.1 The Trustees may invest the Foundation Assets and the income and any money held by the Trustees under this Deed, either alone or (subject to Clause 5) in common with any other person or persons:

• in any investment authorised under the law of New Zealand for the investment of trust funds; or

• by retaining and continuing to invest for the Purposes in any specific asset or investment which is transferred to or vested in the Trust, even though it may be a risky, hazardous or wasting investment; or

• by making investments for the Purposes, including to support new ventures, even though they may be risky, hazardous or wasting investments.

11.2 The Trustees may hold all or any part of the Foundation Assets or income in an account with any Bank or uninvested for any period or periods, without any liability for loss, for the purpose of:

(a) accumulating sufficient of the Foundation Assets until it can be invested; or

(b) holding sufficient of the Foundation Assets to meet anticipated payments as they fall due.

11.3 The duties imposed on a trustee by section 13B and 13C inclusive of the Trustee Act 1956 or any statutory re-enactment, amendment or replacement shall not apply to the Trustees in respect of investments made pursuant to clauses 11.1 (b) and (c).

12. Accounts and Audit

12.1 The Trustees shall keep proper records and accounts relating to the Foundation, including a record of all sums of money received and expended by or on behalf of the Foundation.

12.2 In addition to the powers conferred by section 81 of the Trustee Act 1956, the Trustees may make arrangements with any Bank for the Foundation, or any two or more Trustees named in writing by the Trustees, to operate upon any account from time to time opened or subsisting at that Bank.

12.3 At the end of each financial year the Trustees shall prepare accounts for the Foundation and will have those accounts audited, at the cost of the Foundation, by an independent qualified accountant who shall be appointed annually by the Trustees.

13. Alteration to the Deed

13.1 The Trustees may from time to time by amending deed or instrument alter, rescind or add to any of the provisions of this Deed, but only if:-

(a) At least 14 days notice of intention to move any amendment to this Deed has been given to all Trustees;

(b) The amendment is adopted by a resolution supported by 75% of the Trustees or has been approved by an order of the Court; and

(c) The alteration, recision or addition is not prejudicial to the legal charitable status of the Foundation (including any tax exemptions in New Zealand by virtue of its charitable status).

14. Winding up of the Foundation

14.1 The Foundation shall terminate and be wound up and dissolved if:

(a) The Trustees resolve by Special Resolution that the Foundation shall be wound up; or

(b) The Foundation is wound up by law.

14.2 Every resolution to wind up the Foundation shall specify an effective termination date of the Foundation and thereafter the Trustees shall realise or dispose of the Foundation Assets as soon as reasonably practicable in accordance with this clause.

14.3 The Foundation Assets or the proceeds resulting from them shall be applied by the Trustees upon a winding up in the following order of priority and manner:-

(a) First in meeting all costs, expenses and liabilities of the Foundation including the costs and expenses or winding up the Foundation and setting aside any amount that the Trustees consider necessary or desirable in respect of any contingent liability of the Foundation.

(b) Secondly, in the payment or distribution (by instalments if the Trustees consider appropriate) of the balance to or for the benefit of such purpose, which in accordance with the law of New Zealand is a charitable purpose for the benefit of the people of New Zealand, as the Trustees shall determine.

PART 2

PROCEEDINGS OF TRUSTEES

15. Appointment and Removal of Trustees

15.1 There shall be a minimum of 3 and a maximum of 5 Trustees of the Foundation. The Trustees at the date of execution of this Deed are those set out on the first page of this Deed ("the Initial Trustees"). Subsequent Trustees shall be appointed by the Appointors in the manner set out in this Deed.

15.2 The power of appointment of new Trustees of the Foundation shall be exercised by Peter Charles Dengate Thrush in respect of up to 4 Trustees. Peter Charles Dengate Thrush shall have power:

• To remove any Trustee appointed by him, at any time and from time to time;

• To replace any Trustee appointed by him, and removed under (a); and

• To appoint a new Trustee at any time, if that appointment does not cause to be exceeded the number of trustees specified in this Clause 15.2.

15.3 The president of InternetNZ or that person’s nominee shall be entitled to be appointed as a Trustee for the duration of the president’s term. Peter John Macaulay, being an Initial Trustee and being at the date of this Deed the president of InternetNZ, is deemed to have been appointed pursuant to this clause. The president of InternetNZ shall have power:

• To remove any Trustee appointed by the president, at any time and from time to time;

• To replace any Trustee appointed by the president, and removed under (a); and

• To appoint a new Trustee at any time, if the president is not a Trustee and there is no nominee of the president who is a trustee.

15.4 Peter Charles Dengate Thrush may by Deed or Will assign to any other person, for a specified term or permanently, the powers of appointment and removal of Trustees exercisable by him pursuant to this Trust Deed. If the Powers are permanently assigned, the assignee shall have a like right and power of assignment.

15.5 If the number of Trustees at any time is lower than the minimum permitted under this Deed (through retirement or other eventuality), Peter Dengate Thrush shall fill the vacancies as he sees fit.

15.6 If the number of Trustees at any time is lower than the maximum permitted under this Deed (through retirement or other eventuality), Peter Dengate Thrush may fill the vacancies as he sees fit.

15.7 The term of appointment for each trustee may be specified or may be without limit, subject to clauses 15.2 and 15.3.

15.8 Any Trustee may retire as Trustee of the Foundation upon giving not less than three months notice in writing to the Trustees of the desire so to do. Any Trustee shall be disqualified from being a Trustee if that person dies, is an undischarged bankrupt, is a protected person under the Protection of Personal and Property Rights Act 1988, is under 18 years or is disqualified pursuant to s 16 Charities Act, 2005.

15.9 The appointment of a trustee shall be vacated if a trustee:

(a) Resigns;

(b) Becomes bankrupt;

(d) Becomes disqualified pursuant to clause 15.8;

(e) Becomes for any reason unable in the reasonable opinion of the Appointor to perform the duties of a trustee satisfactorily, including (if the Appointor determines) failing to participate in the business of the Foundation over a period of at least four months without having previously obtained special leave; or

(f) Is convicted of an indictable offence.

16. Appointment of Chairperson

16.1 The Foundation shall have a chairperson who shall be a Trustee. The first chairperson shall be Peter Charles Dengate Thrush. The chairperson shall be appointed for a term of three years or to such earlier date as that person’s term of appointment as a Trustee expires.

16.2 Any retiring chairperson whose term as a Trustee has not expired may be reappointed as chairperson.

16.3 If a chairperson is unable for any reason to perform the chairperson's duties then the Trustees may elect an acting chairperson during the relevant period of inability.

17. Proceedings of Trustee Meetings

17.1 Subject to this Deed the Trustees may meet together for the dispatch of business and may adjourn or otherwise regulate their meetings as they think fit. The Trustees shall meet in person or by telecommunication or shall use other means of communication as reasonably necessary to carry out their functions. Except as provided in this Deed they shall regulate their own procedure for meetings and for making and recording decisions, which may include agreeing to adopt, and setting down rules for the conduct of meetings by, electronic technologies, including email.

17.2 At any meeting of the Trustees the chairperson shall preside or in the absence of the chairperson the Trustees may elect one of their members to preside.

17.3 At all meetings of Trustees:

(a) No business shall be transacted unless the requisite quorum is present for that business;

(b) At any meeting to consider a matter that requires a Special Resolution the quorum shall be 75% of the Trustees present in person;

(c) Any Trustee who is not present at a meeting may appoint in writing any other [person (whether or not a Trustee)/ Trustee] to exercise a proxy vote (either generally or with directions on the exercise of the proxy vote) in respect of any motion put to the meeting, on which that Trustee has not voted.

(d) The quorum for the transaction of any other business (an "Ordinary Resolution") at a meeting shall be 30% of the Trustees present in person;

(e) The expression "Special Resolution" means a resolution passed at a meeting of Trustees at which not less than 75% of the Trustees present in person or by proxy vote in favour of the resolution;

(f) A resolution put to the vote of a meeting shall be decided on voices or on a show of hands. An Ordinary Resolution shall be passed and binding upon the Foundation if a simple majority of Trustees present in person or by proxy vote in favour of the resolution, unless a Special Resolution is expressly required by this Deed.

(g) Each Trustee present in person or by proxy at the meeting shall have one vote only. The chairperson shall not have a second or casting vote. A declaration by the chairperson that a resolution has been carried shall be conclusive evidence of the fact.

17.4 Where any Trustee or any Related Party has been engaged by the Foundation to carry out consultancy or other services for the Foundation that will result in the Trustee or the Related Party receiving a financial benefit for such services then that Trustee shall not be entitled to vote on any resolution to carry out any proposal for the Foundation recommended by the Trustee or the Related Party.

17.5 An act or decision of the Trustees shall not be invalid by reason only of:-

(a) A fault, default or irregularity in or in connection with the appointment of a Trustee; or

(b) A vacancy in the number of the Trustees including a vacancy arising because of the failure to appoint a Trustee; or

(c) The accidental omission to give notice to, or the non-receipt of notice by, any Trustee.

17.6 The Trustees shall keep a minute book and shall cause minutes to be kept in it of all meetings, resolutions and decisions made by them. Minutes purporting to be signed by the chairperson of the Trustees of a meeting shall be receivable as prima facie evidence of the matters contained in such minutes.

18. Convening of meetings

18.1 The Trustees shall hold at least one Annual General Meeting each year but otherwise shall hold such meetings in any calendar year as they shall decide.

18.2 The chairperson shall convene the meetings of the Trustees.

18.3 The chairperson shall convene a meeting of the Trustees if the chairperson receives a written request from at least two Trustees to hold a meeting. At least seven days prior notice of meetings of Trustees shall be given to all Trustees. A meeting shall be validly held if the requirement for notice is waived by all Trustees who have received less than the seven days notice.

19. Resolution in Lieu of Meeting

19.1 A resolution in writing, of which all trustees have notice, which has been signed or assented to by letter, telegram, cable, telex, facsimile or other written or auditable electronic manner, by

(a) 75% of the Trustees in the case of a Special Resolution,

(b) 51% of the Trustees in the case of an ordinary resolution;

shall be as valid and effective as if it had been passed at a meeting of Trustees duly called and constituted. Any such resolution may consist of several documents in like form either signed or purporting to have been despatched by any one or more of the Trustees. A copy of every such resolution must be provided to each Trustee who has not signed or assented to it within 5 days of it being passed.

20. Service of Notices

20.1 Notices shall be deemed served by one party upon another party:

(a) If posted, 2 days following posting;

(b) If delivered personally, at the date of service;

(c) If sent by facsimile or other electronic device, on the day following the date of transmission.

EXECUTED AS A DEED THIS ……………DAY OF …………………2006