Requirement Notice
FRN: 311584
SECOND SUPPLEMENTAL APPLICATION TO REQUEST THAT REQUIREMENTS ARE
IMPOSED ON FIRM
Affinion International Limited hereby applies, pursuant to Part 4A of the Financial Services and
Markets Act 2000, for the requirements set out in the schedule below.
SCHEDULE
General
1.
This schedule sets out the terms of the requirements to be imposed on Affinion International
Limited, to take immediate effect.
Affinion International Limited (FRN 311584)
Requirements included in the Firm's permission at the request of the Firm under section
55L of the Financial Services and Markets Act 2000
Terms referred to:
1.
In this Second Supplemental Requirement, expressions defined shall have the meanings given
to them in the Requirements unless the context otherwise requires.
2.
Expressions defined in the Authority’s Handbook of rules and guidance or in accordance with
paragraph 1 above have the meanings given to them unless the context otherwise requires.
3.
In this Second Supplemental Requirement:
3.1
"this Second Supplemental Requirement" means the supplements to the
Requirements set out in this document including Annex 1.
3.2
"the Requirements" means the requirements and provisions imposed by the
Authority on 27 January 2015 on the application of the Firm, as supplemented on 15
May 2015.
4.
The Requirements became effective on 27 January 2015 and were supplemented on 15 May
2015.
5.
The Firm applies for the Requirements to be further supplemented so as to incorporate the
supplements set out in this Second Supplemental Requirement.
6.
The Requirements shall be supplemented as follows:
6.1
The definition of 'Scheme of Arrangement' at paragraph 1.33 of the Requirements
shall mean the solvent scheme of arrangement under Part 26 of the Companies Act
2006 described more particularly in Annex 1 hereto and all references in the
Requirements to “Scheme Document” shall be references to the Scheme of
Arrangement in Annex 1 hereto. Changes to the Scheme of Arrangement originally
appended to the Requirements are highlighted through underlined or struck through
text.
6.2
Paragraph 5.1 of Part 3 of Annex B of the Requirements shall be amended so as to
read as follows:
“If a Scheme Creditor disagrees with the amount of compensation payable to him, he
may initiate the Dispute Resolution Procedure to refer the dispute to the Scheme
Adjudicator, provided he does so within the time limits specified in Clauses 4.6 and
4.9 of the Scheme Document. If a Scheme Creditor disagrees with the rejection of his
Claim Form by the Scheme Administrators, and provided that the Claim Form was
received on or before 15 November 2016, he may initiate the Dispute Resolution
Procedure to refer the dispute to the Scheme Adjudicator, provided he does so within
the time limits specified in Clauses 4.8 to 4.10 of the Scheme Document.”
Annex 1: Terms of the Scheme of Arrangement
[insert amended Scheme document]
THE SCHEME
IN THE HIGH COURT OF JUSTICE
No. 683 of 2015
CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF AI SCHEME LIMITED
IN THE MATTER OF THE COMPANIES ACT 2006
SCHEME OF ARRANGEMENT
(under Part 26 of the Companies Act 2006)
- between –
AI SCHEME LIMITED
and
THE SCHEME CREDITORS
(as defined below)
1
PRELIMINARY
THE SCHEME
This document sets out the terms of the scheme of arrangement between AI Scheme
1.1
Limited and its Scheme Creditors.
DEFINITIONS
In this Scheme, unless inconsistent with the subject or context, the following
1.2
expressions bear the following meanings:
"Agreed Scheme Claim"
in relation to a Scheme Claim, the Scheme Claim that is
admitted by the Scheme Administrators (or the Scheme
Adjudicator in accordance with Clause 7 of this Scheme) or
has been determined in a final and binding manner in
accordance with Clause 4 of this Scheme
"AI"
Affinion International Limited, a company registered in
England with registered number 1008797 and registered
office at Charter Court, 50 Windsor Road, Slough SL1 2EJ
"AI Claim"
any claim, action or other right of any description however
arising in relation to, in connection with, or arising from,
Selling Issues against AI in connection with, or arising from
a Scheme Card Security Product, but only to the extent that
the claim, action or other right relates to loss suffered on or
after 14 January 2005. For the avoidance of doubt, a
relevant claim, action or other right shall be an AI Claim
even if the relevant Selling Issues occurred prior to 14
January 2005, but will only be an AI Claim to the extent of
any loss suffered on or after 14 January 2005
"AIB Group (UK) Plc"
a company trading under the names (i) First Trust Bank in
Northern Ireland and (ii) Allied Irish Bank (GB) in Great
Britain registered in Northern Ireland with registered
number NI018800 and registered office at 92 Ann Street,
Belfast BT1 3HH, Northern Ireland
"Amendment Date"
the date (generally the renewal date for each Product
Holder) on which the payment card fraud insurance cover
for each Product Holder was removed from their Scheme
Card Security Product, which date occurred between October
2012 and August 2013
"Authority"
the body corporate previously known as the Financial
Services Authority and renamed on 1 April 2013 as the
Financial Conduct Authority
"Bank of Scotland plc"
a company registered in Scotland with registered number
SC327000 and registered office at the Mound, Edinburgh,
EH11YZ
"Bar Date"
(a)
subject to paragraphs (b) and (c), the date falling 7
(seven) months after the Scheme Effective Date, or
(b)
if, in respect of a Scheme Creditor, one or more of
the Exceptional Circumstances apply, the date
falling 13 (thirteen) months after the Scheme
Effective Date in respect of such Scheme Creditor,
or
(c)
if, in respect of a Scheme Creditor, such Scheme
Creditor has been requested by the Scheme
Administrators to re-submit a new Claim Form in
accordance with Clause 3.5 of this Scheme, and the
30 day period for return of such Claim Form falls on
a date:
(i)
after the expiry of seven months after the
Scheme Effective Date; or
(ii)
if
one
or
more
of
the
Exceptional
Circumstances apply, after the expiry of
thirteen months after the Scheme Effective
Date,
the date upon which such 30 day period expires in
respect of such Scheme Creditor,
provided that, in each case, (1) if the Bar Date falls on a day
which is not a Business Day, it shall be deemed to fall on the
next Business Day and (2) the computation of the Bar Date
shall not include the Scheme Effective Date
"Barclays Bank Plc"
a company registered in England with registered number
1026167 and registered office at 1 Churchill Place, London,
E14 5HP
"Basis for Admission of
Agreed Scheme Claims"
the Scheme Administrators will admit the claim if they
conclude that this is appropriate in light of the evidence on
the face of the Claim Form
"Business Day"
any day on which banks and card issuers are open for
transactions of normal banking business in the City of
London other than a Saturday, Sunday or public holiday
"Business Partner
Affiliate"
in relation to any Business Partner, a Subsidiary of that
Business Partner or a Holding Company of that Business
Partner or any other Subsidiary of that Holding Company,
including
but
not
limited
to
the
Business
Partner
"Business Partner
Claim"
any claim, action or other right of any description however
arising in relation to, in connection with, or arising from
Selling Issues which a Scheme Creditor has against a
Business Partner or a Business Partner Affiliate under, in
connection with, or arising from a Scheme Card Security
Product but only to the extent that the claim, action or other
right relates to loss suffered on or after 14 January 2005.
For the avoidance of doubt, a relevant claim, action or other
right shall be a Business Partner Claim even if the relevant
Selling Issues occurred prior to 14 January 2005, but will
only be a Business Partner Claim to the extent of any loss
suffered on or after 14 January 2005
"Business Partner
Undertaking Affiliate"
those Business Partner Affiliates who have signed a Deed of
Undertaking, being:
•
Bank of Scotland Plc
•
National Westminster Bank Plc
•
Santander Cards UK Limited
"Business Partners"
Barclays Bank Plc, Santander UK plc, The Royal Bank of
Scotland plc, HSBC Bank plc, Clydesdale Bank PLC, Tesco
Personal Finance plc, Capital One (Europe) Plc, Lloyds Bank
Plc, Northern Bank Limited t/as Danske Bank, The Co-
operative Bank Plc and AIB Group (UK) Plc t/as trading as
(i) First Trust Bank in Northern Ireland and (ii) Allied Irish
Bank (GB) in Great Britain, provided that, to the extent that
any such entity becomes insolvent prior to the Scheme
Effective Date, such entity shall cease to be a Business
Partner for the purposes of the Scheme
"Capital One (Europe)
Plc"
a company registered in England with registered number
03879023 and registered office at Trent House, Station
Street, Nottingham, NG2 3HX
"Card Security Product"
a card security product provided by AI which was sold by AI
or a Business Partner or a Business Partner Affiliate in the
UK under one of the following product names:
•
Card Protection
•
Sentinel
•
Sentinel Gold
•
Sentinel Protection
•
Sentinel Excel
•
Safe and Secure Plus
"Cash Manager"
has the meaning given to it in the Implementation
Agreement
"Claim Form"
the claim form in respect of a Scheme Card Security Product
in the form set out in Appendix 2 of this Scheme
"Client Identification
Agreement"
each agreement so titled dated on or about 23 January 2015
between the Scheme Administrators, AI and each Business
Partner, as amended from time to time
"Clydesdale Bank PLC"
a public limited company incorporated in the United
Kingdom with registered number SC001111 and registered
address is 30 St. Vincent Place, Glasgow G1 2HL;
"COMP"
the Compensation Sourcebook from the FCA Handbook
"Companies Act"
the Companies Act 2006 (as amended from time to time)
"Co-Obligor Deed Poll"
the Deed Poll dated on or around 23 January 2015 pursuant
to which Schemeco has declared that it is, and assumes
responsibility to Scheme Creditors as, a co-obligor in respect
of the AI Claims.
"Court"
the High Court of Justice in England and Wales
"Court Order"
the order of the Court sanctioning the Scheme under section
899 of the Companies Act
"Deceased Product
Holder"
a Product Holder who, based on the books and records of AI
as at 22 December 2014 was recorded as deceased
"Deed of Undertaking"
a deed of undertaking executed in accordance with Clauses
2.3 and 2.4 of this Scheme
"Deemed Rejection"
has the meaning given to it in Clause 4.7 of this Scheme
"Dispute Notice"
has the meaning given to it in Clause 7.1 of this Scheme
"Dispute Resolution
Procedure"
the procedure set out in Clause 7 of this Scheme
"DISP"
the Dispute Resolution Sourcebook from the FCA Handbook
"Disputed Scheme
Claim"
any Scheme Claim that is referred to the Dispute Resolution
Procedure for determination
"Exceptional
Circumstances"
where a Scheme Creditor (or, in the case of a Scheme
Creditor who is deceased, a Scheme Creditor's authorised
representative)
can
demonstrate
in
writing
to
the
satisfaction of the Scheme Administrators that either:
(a)
the Scheme Creditor was out of his or her usual
country of residence for at least four of the seven
months immediately following the Scheme Effective
Date; or
(b)
as a result of the death or another certified medical
condition in respect of such Scheme Creditor or the
death or another certified medical condition in
respect of a close family member of such Scheme
Creditor
(as
evidenced
by
appropriate
documentation),
it was unreasonable to expect the Scheme Creditor (or, in
the case of a Scheme Creditor who is deceased, the Scheme
Creditor's authorised representative) to respond prior to the
expiry of the seven month period following the Scheme
Effective Date (and such reason is accepted by the Scheme
Administrators in their absolute discretion)
"Excluded Product
Holder"
a Product Holder who is a Deceased Product Holder, a No
Loss Product Holder or a Wholesale Product Holder
"Explanatory
Statement"
the explanatory statement dated on or about the date of this
document required to be furnished to Scheme Creditors
pursuant to section 897 of the Companies Act
"FCA Handbook"
the FCA Handbook of Rules and Guidance prepared by the
Authority under FSMA (as amended from time to time)
"FCA Requirement"
a requirement imposed under section 55L FSMA
"FSCS"
the Financial Services Compensation Scheme
"FSCS Rules"
the rules under the compensation module of the FCA
Handbook (as amended from time to time)
"FSMA"
the Financial Services and Markets Act 2000 (as amended
from time to time)
"HMRC"
Her Majesty's Revenue and Customs
"HMRC Clearance"
means a non-statutory clearance provided by HMRC giving
written confirmation of HMRC's view of the application of tax
law to the transactions and events taking place under or
pursuant to the Scheme
"HMRC Stamp Duty
Clearance"
means a non-statutory clearance provided by HMRC giving
written confirmation of HMRC's view that no stamp duty is
payable in respect of the Scheme
"Holding Company"
in relation to a person, any other person in respect of which
it is a Subsidiary
"HSBC Bank plc"
a company registered in England with registered number
14259 and registered office at 8 Canada Square, London,
E14 5HQ
"Implementation
Agreement"
the implementation agreement dated on or around 23
January 2015 between Schemeco, Supplierco, AI, the
Business Partners, the Cash Manager and the Scheme
Administrators
has the meaning given to it in Clause 9.5 of this Scheme
"Insolvency Event"
means, in relation to a Scheme Participant, any of the
following:
(a)
any resolution is passed or order made for the
winding-up (other than a solvent winding-up),
dissolution or administration of that Scheme
Participant; or
(b)
a liquidator, receiver, administrator, compulsory
manager, administrative receiver or other similar
officer is appointed in respect of that Scheme
Participant or the whole or substantially the whole
of its assets; or
(c) any analogous event occurs in any jurisdiction
"Insolvent Entity"
has the meaning given to it in Clause 9.1 of this Scheme
"Insolvent Entity Funds"
has the meaning given to it in Clause 9.1 of this Scheme
"Lloyds Bank Plc"
a company registered in England with registered number
2065 and a registered office at 25 Gresham Street, London,
EC2V 7HN
"Material Contract"
(a)
the Implementation Agreement
(b)
each Client Identification Agreement
(c)
each Deed of Undertaking
(d)
the Release Agreement; and
(e)
the Co-Obligor Deed Poll
"No Loss Product
Holder"
a Product Holder who, based on the books and records of AI
as at 9 December 2014, would, if a Scheme Creditor with an
Agreed Scheme Claim, be entitled to a Redress Amount of
less than £5 if:
(a)
the formula for calculating the Redress Amount was
applied as at such date; and
(b)
any references to 'the date falling six weeks after
the Scheme Effective Date' in items B and D of that
formula were deemed to read 9 December 2014
"Northern Bank Limited
t/as Danske Bank"
a company trading under the name Danske Bank and
registered in Northern Ireland with registered number R568
and a registered office at Donegall Square West, Belfast BT1
6JS
"Notice of No Loss"
has the meaning given to it in Clause 4.5 of this Scheme
"Notice of Rejection"
has the meaning given to it in Clause 4.7 of this Scheme
"Ombudsman"
the Financial Ombudsman Service
"Product Holder"
any person who has purchased a Card Security Product
"Practice Statement
Letter"
the letter issued to each Scheme Creditor between 27
January and 23 February 2015 in accordance with the
Practice
Statement
(Schemes
of
Arrangement
with
Creditors) dated 15 April 2002
"Protected Claim"
has the meaning given to it in COMP 5.2.1R of the FSCS
Rules
"Redress"
any compensation or refund (of any description) in respect
of, related to, or connected with, a Scheme Claim
"Redress Amount"
the amount of Redress to be paid to a Scheme Creditor with
an Agreed Scheme Claim equal to:
(A + B) - (C + D)
Where:
(a)
A is the total amount of payments made by a
Scheme Creditor in respect of a Scheme Card
Security Product on or after 14 January 2005;
(b)
B is an amount calculated as if it were simple
interest at 8% per annum on the amount of each of
the payments referred to in (a) above, with such
simple interest being applied from the date of each
such payment to the date falling six weeks after the
Scheme Effective Date;
(c)
C is the total amount of payments made to the
Scheme Creditor under a Scheme Card Security
Product on or after 14 January 2005 (and shall
include, for the avoidance of doubt (but without
limiting the generality of the foregoing), (i) any
payments made to the customer following a claim
by such customer under a Scheme Card Security
Product and / or (ii) any compensation, refund of
prepayment, repayment or other ex gratia payment
made to the customer in respect of any complaint
made by such customer in relation to the sale or
features of a Scheme Card Security Product), in
each case for the period on or after 14 January
2005; and
(d)
D is an amount calculated as if it were simple
interest at 8% per annum on the amount of each of
the payments referred to in (c) above, with such
simple interest being applied from the date of each
such payment to the date falling six weeks after the
Scheme Effective Date
"Redress
Determination"
a written communication from AI or a Business Partner or a
Business Partner Undertaking Affiliate (in each case a
"Respondent")
under
the
consumer
redress
scheme
established pursuant to the FCA Requirement referred to at
Clause 2.2 of this Scheme, which (a) sets out the results of
the Respondent's determination under the consumer redress
scheme; (b) encloses a copy of the Ombudsman's standard
explanatory leaflet; and (c) informs the complainant that if
he is dissatisfied, he may now make a complaint to the
Ombudsman and must do so within six months. A Redress
Determination issued by the Scheme Adjudicator stating
that it is issued on behalf of AI, a Business Partner or a
Business Partner Undertaking Affiliate, and identifying AI,
the Business Partner or the Business Partner Undertaking
Affiliate on behalf of which it is sent, is deemed to be sent
by AI, that Business Partner or that Business Partner
Undertaking Affiliate.
"Registrar of
Companies"
the Registrar of Companies in England and Wales
"Release Agreement"
means the release agreements each dated on or around 23
January 2015 and made between AI and each Business
Partner and each relevant Business Partner Undertaking
Affiliate (if any)
"Santander UK plc"
a company registered in England with registered number
2294747 and registered office at 2 Triton Square, Regent's
Place, London, NW1 3AN
"Scheme"
this scheme of arrangement under Part 26 of the Companies
Act between Schemeco and its Scheme Creditors in the form
set out in this document or with, or subject to, any
modification, addition or condition which the Court may
think fit to approve or impose, as appropriate
"Scheme
Administrators"
Kevin Gill and Ben Cairns of Ernst & Young LLP of 1 More
London Place, London SE1 2AF or such other persons
appointed pursuant to the terms of the Scheme
"Scheme Adjudicator"
an independent solicitor of at least 10 years standing
appointed by the Scheme Administrators who will act as an
expert, not an arbitrator
"Scheme Administrator
Appointment Letter"
the appointment letter pursuant to which the Scheme
Administrators are appointed by Schemeco, AI and the
Business Partners
"Scheme Card Security
Product"
any Card Security Product:
(a)
purchased (or renewed) directly from AI; or
(b)
purchased (or renewed) from AI, following an
introduction by a Business Partner or a Business
Partner Affiliate; or
(c)
purchased (or renewed) directly from a Business
Partner or a Business Partner Affiliate.
"Scheme Claim"
any claim against Schemeco arising as a result of
Schemeco's assumption of liability for AI Claims pursuant to
the Co-obligor Deed Poll
"Schemeco"
AI Scheme Limited Limited, a company registered in
England with registered number 09295299 and registered
office at 35 Great St Helen's, London EC3A 6AP
"Scheme Creditor"
any Product Holder, other than an Excluded Product Holder,
who purchased (or renewed) a Scheme Card Security
Product on or after 14 January 2005 but before the
Amendment Date, whether or not they still hold a Scheme
Card Security Product, who has a Scheme Claim
"Scheme Effective Date"
has the meaning given in Clause 2.1 of this Scheme
the scheme liabilities release deed poll between (1) the
Scheme Creditors (2) the Business Partners (3) Business
Partner Affiliates (4) AI and (5) Schemeco in the form
annexed at Appendix 3 of this Scheme
"Scheme Meeting"
the meeting of Scheme Creditors to be held at Central Hall
Westminster, Storey’s Gate, London, SW1H 9NH on 30 June
2015 at 12pm (midday)
"Scheme Obligations
Termination Date"
the date on which the obligations of the Scheme Participants
terminate in accordance with Clause 12.1 of this Scheme
"Scheme Participant"
Schemeco, AI and each of the Business Partners
"Selling Issues"
where the sale of any Scheme Card Security Product or the
way in which the sale of a Scheme Card Security Product
was conducted by AI, a Business Partner or a Business
Partner Affiliate (including, for the avoidance of doubt, the
way in which a Scheme Creditor was introduced to AI by a
Business Partner or Business Partner Affiliate) failed to
comply with applicable regulatory rules or with the
Authority's Principles for Businesses (or, where applicable,
the Prudential Regulatory Authority’s Fundamental Rules) or
was otherwise in breach of contract or in breach of any
tortious duty of care or any other requirement of the general
law (taking into account relevant materials published by the
Authority, other relevant regulators, the Ombudsman,
former schemes, including industry codes of practice).
Selling Issues shall include (but not be limited to) claims
that the information provided about any Scheme Card
Security Product failed to be clear or fair and not misleading,
or that such information was incomplete (for example by
omitting to mention material limitations or exclusions on the
features or benefits provided), or that the sale was
concluded after applying inappropriate pressure. Where a
product
was
purchased
and
subsequently
renewed,
references in this definition to "the sale" shall include the
initial sale and each subsequent renewal.
"Subsidiary"
means a subsidiary within the meaning of section 1159 of
the Companies Act 2006
"Supplierco"
AI Supplier Limited, a company registered in England with
registered number 9224838 and registered office at 35
Great St Helen's, London EC3A 6AP
"Tesco Personal Finance
plc"
a company registered in Scotland with registered number
SC173199 and registered office at Interpoint Building, 22
Haymarket Yards, Edinburgh, EH12 5BH
"The Co-operative Bank
Plc"
a company registered in England with registered number
990937 and registered office at PO Box 101, 1 Balloon
Street, Manchester M60 4EP
"The Royal Bank of
Scotland plc"
a company registered in Scotland with registered number
SC090312 and registered office at 36 St. Andrew Square,
Edinburgh, EH2 2YB
"UK" or "United
Kingdom"
the United Kingdom of Great Britain and Northern Ireland
"VAT"
value added tax as provided for in the Value Added Tax Act
1994 and any other tax of a similar nature
"Wholesale Product
Holder"
a Product Holder who purchased or renewed a Card Security
Product, on or after 14 January 2005 but before the
Amendment Date, other than:
(a)
directly from AI as a standalone product;
(b)
from AI, following an introduction by a Business
Partner or a Business Partner Affiliate, as a
standalone product; or
(c)
directly from a Business Partner or a Business
Partner Affiliate as a standalone product.
Unless the context otherwise requires or otherwise expressly provides:
1.3.1
references to Clauses are references to the clauses of this Scheme;
1.3.2
references to a statute or statutory provision include the same as
subsequently
modified, amended, supplemented or re-enacted from
time to time;
1.3.3
references to an agreement, deed or document shall be deemed also to
refer to such agreement, deed or document as amended, supplemented,
restated, verified, replaced and/or novated (in whole or in part) from time
to time and to any agreement, deed or document executed pursuant
thereto;
1.3.4
references to (or to any specified provision of) the Scheme shall be
construed as references to this Scheme as in force for the time being;
1.3.5
the singular includes the plural and vice versa and words importing one
gender shall include all genders; and
1.3.6
headings to clauses are for ease of reference only and shall not affect the
interpretation of the Scheme.
2
SCHEME – EFFECTIVE DATE
The Scheme Effective Date shall be the date on which the Court Order is delivered to
2.1
the Registrar of Companies in accordance with Clause 2.2 below.
The Scheme will become effective and legally binding on Schemeco and its Scheme
2.2
Creditors, in accordance with its terms, upon the Court Order having been delivered
to the Registrar of Companies, and Schemeco undertakes to deliver such Court Order
to the Registrar of Companies following the satisfaction of the following conditions
precedent:
2.2.1
the Material Contracts have been executed by the parties thereto;
2.2.2
the Authority has confirmed that it has no objections to the Scheme;
2.2.3
AI has applied for and the Authority has agreed to the imposition of an FCA
Requirement (under Sections 404F(7) and 404F(8) FSMA) in respect of the
Scheme;
2.2.4
each Business Partner and Business Partner Undertaking Affiliate has applied
for and the Authority has agreed to the imposition of an FCA Requirement
(under Sections 404F(7) and 404F(8) FSMA) in respect of the Scheme;
2.2.5
the Authority has exercised its power under Section 404F(7) FSMA to bind
the Ombudsman;
2.2.6
no Insolvency Event has occurred in relation to AI as at the time
immediately prior to the Court Order being lodged with the Registrar of
Companies in England and Wales;
2.2.7
HMRC Clearance has been received by Schemeco, AI and the Business
Partners; and
2.2.8
the HMRC Stamp Duty Clearance has been delivered to the Registrar of
Companies.
AI and each Business Partner has, by executing (respectively) a Deed of
2.3
Undertaking, agreed to appear by Counsel on the hearing of the application to
sanction the Scheme, to consent thereto and to undertake to be bound thereby and
to execute or procure to be executed all such documents, and to do or procure to be
done all such acts and things, as may be reasonably necessary to be executed or
done by it or him for the purpose of giving effect to the Scheme.
Each Business Partner Undertaking Affiliate has, by executing a Deed of Undertaking,
2.4
agreed to consent to the Scheme, and undertaken to be bound by it.
From the Scheme Effective Date and to the extent permitted under applicable law
2.5
and regulation and subject to Clauses 7.5 and 7.6 below, no Scheme Creditor shall
be entitled to commence or continue any legal process or commence any regulatory
complaint against:
2.5.1
Schemeco in connection with any Scheme Claims;
2.5.2
AI in connection with any AI Claims; and
2.5.3
any Business Partner or any Business Partner Affiliate in connection with any
Business Partner Claims,
provided that in each case (i) there has not been an Insolvency Event in respect of
the relevant Scheme Participant and (ii) the Scheme Participant has not failed to
comply with any payment obligation to such Scheme Creditor under the Scheme.
The Scheme shall apply to all liabilities (if any) of (i) Schemeco in respect of Scheme
2.6
Claims (ii) AI in respect of AI Claims and (iii) the Business Partners or Business
Partner Affiliates in respect of Business Partner Claims.
For the avoidance of doubt:
2.7
2.7.1
all other liabilities of Schemeco, AI, the Business Partners and Business
Partner Affiliates shall be unaffected by the Scheme;
2.7.2
any claim, action or other right of any description however arising relating
to loss suffered by any Scheme Creditor before 14 January 2005 is outside
the scope of this Scheme and is unaffected by the provisions of this
Scheme; and
2.7.3
a Scheme Creditor who has made a regulatory complaint which was referred
to the Ombudsman prior to 27 January 2015 may continue to pursue that
complaint, although a Scheme Creditor shall not be entitled to pursue both a
regulatory complaint and a claim under the Scheme relating to the same
loss.
If any sum is due or obligation is to be performed under the terms of the Scheme on
2.8
a date other than a Business Day, the relevant payment shall be made, or obligation
performed, on the next Business Day.
3
RIGHT TO REDRESS
Redress shall only be payable to Scheme Creditors in respect of Scheme Claims to
3.1
the extent that such Scheme Claims are Agreed Scheme Claims.
Disputes in relation to Scheme Claims or purported Scheme Claims shall be
3.2
determined in accordance with the Dispute Resolution Procedure. The amount of any
Disputed Scheme Claim which is agreed pursuant to the Dispute Resolution
Procedure will become an Agreed Scheme Claim.
Any Scheme Creditor who wishes to receive Redress must complete a Claim Form
3.3
and certify on the Claim Form that the content of the completed Claim Form is true
and accurate.
Claim Forms must be received by the Scheme Administrators on or before the Bar
3.4
Date. If a Claim Form is received after the Bar Date, the Claim Form will be rejected
or be deemed rejected (in accordance with Clause 4.7 below) and the Scheme
Creditor shall have no right to Redress. The Bar Date will apply to all Scheme
Creditors irrespective of whether or not they receive actual written notice of the
Scheme and / or whether or not they submit a Claim Form.
If a Scheme Creditor submits a Claim Form so that it is received by the Scheme
3.5
Administrators on or before the Bar Date and such Claim Form is spoiled, the
Scheme Administrators shall (on no less than one occasion) send a new Claim Form
to the Scheme Creditor and a request to the Scheme Creditor to complete the new
Claim Form and return it by the Bar Date. The Scheme Administrators shall have
absolute discretion to determine how many opportunities a Scheme Creditor will be
given to submit a new Claim Form. If the Scheme Creditor fails to submit the new
Claim Form by the Bar Date, the Scheme Creditor shall have no right to Redress.
Except as expressly set out in the Scheme, each person claiming to be a Scheme
3.6
Creditor shall be responsible for all of its own costs (including the costs of submitting
its Claim Form and, if applicable, of providing such documentary evidence or other
evidence as the Scheme Administrators and/or the Scheme Adjudicator may
require). None of Schemeco, AI, any Business Partner (nor any Business Partner
Affiliate), the Scheme Administrators and/or the Scheme Adjudicator shall be liable
for any costs incurred by the Scheme Creditor in completing or submitting the Claim
Form or otherwise in connection with the procedures set out in Clauses 4 and 7
below.
4
ADMISSION OF CLAIMS
Upon receipt of a Claim Form on or prior to the Bar Date, the Scheme Administrators
4.1
will assess each Scheme Claim in accordance with the Basis for Admission of Agreed
Scheme Claims.
If a Scheme Claim is submitted on or before the Bar Date, the Scheme
4.2
Administrators shall admit such a Scheme Claim as an Agreed Scheme Claim for an
amount equal to the Redress Amount (calculated by reference to AI's records) if it
fulfils the Basis for Admission of Agreed Scheme Claims.
Where a Scheme Claim is admitted as an Agreed Scheme Claim, and a Redress
4.3
Amount is payable in respect of such Agreed Scheme Claim, the Scheme Creditor in
respect of such Agreed Scheme Claim shall be sent a cheque for the amount of such
Agreed Scheme Claim as soon as reasonably practicable following such admittance.
The payment obligations in respect of such cheque shall be met in accordance with
Clause 5 below.
Where the Scheme Creditor encashes such cheque, such Scheme Creditor shall be
4.4
deemed to have accepted the amount of the Agreed Scheme Claim and shall have no
recourse to the Dispute Resolution Procedure.
Where a Scheme Claim is admitted as an Agreed Scheme Claim, and the Redress
4.5
Amount in respect of such Agreed Scheme Claim is equal to or less than zero, the
Scheme Creditor shall be sent a notification that their Scheme Claim is an Agreed
Scheme Claim but that no Redress is payable in respect of it (a “Notice of No
Loss”).
If a Scheme Creditor is dissatisfied with the value of the cheque sent to the Scheme
4.6
Creditor in accordance with Clause 4.3 or the Notice of No Loss sent to the Scheme
Creditor in accordance with Clause 4.5, such Scheme Creditor shall give written
notice to the Scheme Administrators within 30 Business Days of the date of the letter
enclosing the cheque or the Notice of No Loss (as applicable) of his intention to
invoke the Dispute Resolution Procedure. In these circumstances, a Scheme Creditor
who has received a cheque in accordance with Clause 4.3 shall return such cheque to
the Scheme Administrators. Any such Scheme Claim in respect of which a notice to
the Scheme Administrators has been given in accordance with this Clause 4.6 shall
be treated as a Disputed Scheme Claim.
Subject as follows in this Clause 4.7, where the Scheme Administrators reject a
4.7
Scheme Claim (including a rejection of a Claim Form pursuant to Clause 3.4) such
that such Scheme Claim is not an Agreed Scheme Claim, the Scheme Administrators
shall prepare a written statement of their reasons for doing so (a "Notice of
Rejection") and send it as soon as reasonably practicable to the Scheme Creditor.
Any Claim Form received by the Scheme Administrators after 15 November 2016
shall be deemed to be rejected and the Scheme Administrators shall not be required
to send a Notice of Rejection to the Scheme Creditor that has submitted such claim
(a “Deemed Rejection”).
Subject to Clause 4.10, if a Scheme Creditor is dissatisfied with the Scheme
4.8
Administrators' decision with respect to its Claim Form under Clause 4.7 (including a
determination by the Scheme Administrators pursuant to Clause 10.6.2(d)), it shall
give written notice to the Scheme Administrators within 30 Business Days of the date
of the Notice of Rejection of its intention to invoke the Dispute Resolution Procedure.
Any such Scheme Claim shall be treated as a Disputed Scheme Claim.
The deadlines for invoking the Dispute Resolution Procedure specified in Clauses 4.6
4.9
and 4.8 shall not apply if a Scheme Creditor has not received the letter enclosing the
cheque in respect of an Agreed Scheme Claim, the Notice of No Loss, or (where
applicable) the Notice of Rejection within 40 Business Days of submitting its Claim
Form, provided that the Scheme Creditor telephones or writes to the Scheme
Administrators to notify them of such non-receipt within 60 Business Days of
submission of the Claim Form. In such cases, the Scheme Administrators shall cancel
any uncashed cheque issued to the Scheme Creditor and shall send (as applicable) a
new letter enclosing a new cheque or new Notice of No Loss or new Notice of
Rejection, and the new time limit for invoking the Dispute Resolution Procedure shall
expire 30 Business Days from the date of such new letter, new Notice of No Loss or
new Notice of Rejection, as the case may be.
The provisions of Clauses 4.8 and 4.9 shall not apply in respect of Deemed
4.10
Rejections such that a Scheme Creditor shall not be entitled to invoke the Dispute
Resolution Procedure in respect of a Deemed Rejection.
5
FUNDING OF REDRESS
Pursuant to the terms of the Implementation Agreement and each Client
5.1
Identification Agreement:
5.1.1
Schemeco shall procure that AI shall pay the Redress Amount to each
Scheme Creditor with an Agreed Scheme Claim who purchased their
Scheme Card Security Product directly from AI; and
5.1.2
Schemeco shall procure that each Business Partner shall pay on behalf of
itself and to the extent appropriate each of its Business Partner Affiliates the
Redress Amount to each Scheme Creditor with an Agreed Scheme Claim
who purchased their Scheme Card Security Product from (i) AI following an
introduction by that Business Partner or a Business Partner Affiliate of such
Business Partner or (ii) that Business Partner or a Business Partner Affiliate
of such Business Partner directly; and
5.1.3
For the purposes of this Clause 5.1, the reference to the term "purchased"
when used in the context of a purchase from AI following an introduction
from a Business Partner or Business Partner Affiliate of such Business
Partner shall mean (i) the transaction pursuant to which the relevant
Scheme Card Security Product was first acquired, notwithstanding that such
purchase may have occurred prior to 14 January 2005 and notwithstanding
that such Scheme Card Security Product may have been renewed after such
initial purchase; and (ii) each subsequent renewal of the Scheme Card
Security Product referred to at (i), such that the purchase and renewals
referred to in (i) and (ii) shall not be treated for the purpose of Clause 5.1.1
as a purchase from AI but rather as a purchase pursuant to Clause 5.1.2.
For the avoidance of doubt, any claim, action or other right of any
description however arising relating to loss suffered before 14 January 2005
is outside the scope of this Scheme and is unaffected by the provisions of
this Scheme.
AI agrees, provided that payment of such Agreed Scheme Claims by AI is consistent
5.2
with AI's obligations pursuant to Clause 5.1.1 above and the Deed of Undertaking,
that it will be responsible for paying any Agreed Scheme Claim in respect of any
Scheme Creditor listed in the Client Identification Agreement of AI in respect of the
relevant Scheme Card Security Product identified or referred to therein.
Each Business Partner agrees on behalf of itself and to the extent appropriate each of
5.3
its Business Partner Affiliates, provided that payment of such Agreed Scheme Claims
by the relevant Business Partner is consistent with such Business Partner's
obligations pursuant to Clause 5.1.2 above and the Deed of Undertaking, that it will
be responsible for paying any Agreed Scheme Claim in respect of any Scheme
Creditor listed in the Client Identification Agreement of the relevant Business Partner
in respect of the relevant Scheme Card Security Product identified or referred to
therein.
If a Scheme Creditor wishes to know which Scheme Participant:
5.4
5.4.1
is responsible for paying any Redress Amount to such Scheme Creditor, the
Scheme Creditor must request that information in writing from the Scheme
Administrators within 60 days of the date of any cheque for a Redress
Amount sent to such Scheme Creditor; or
5.4.2
would have been responsible for paying any Redress Amount to such
Scheme Creditor had Redress been payable, the Scheme Creditor must
request that information in writing from the Scheme Administrators within
60 days of, as applicable, (i) the date of any Notice of No Loss or (ii) the
date of any Notice of Rejection.
The Scheme Administrators shall provide the requested information to the Scheme
Creditor promptly.
AI shall have no liability to make any payment whatsoever to any Scheme Creditor
5.5
whose Agreed Scheme Claim is payable by a Business Partner pursuant to Clause
5.1.2 above and no Business Partner (nor Business Partner Affiliate) shall have any
liability to make any payment whatsoever to any Scheme Creditor whose Agreed
Scheme Claim is payable by (i) AI pursuant to Clause 5.1.1 above, or (ii) any other
Business Partner pursuant to Clause 5.1.2 above.
If AI or a Business Partner fails to pay the Redress Amount due to a Scheme Creditor
5.6
in accordance with Clause 5.1 above, that Scheme Creditor shall have no right of
recourse to any other Scheme Participant or any Business Partner Affiliate to pay the
Redress Amount.
Any payment made by AI or any Business Partner pursuant to Clause 5.1 is made
5.7
without any admission of liability.
All Agreed Scheme Claims will be paid in sterling and net of any UK tax payable on
5.8
the Redress Amount which is required to be withheld.
Any Redress Amount due in respect of a Scheme Claim shall be paid as soon as
5.9
reasonably practicable after such Scheme Claim becomes an Agreed Scheme Claim,
by cheque in favour of the relevant Scheme Creditor (or in favour of such party as
the Scheme Creditor may direct or as may be required by operation of law) and shall
be sent by post to the relevant Scheme Creditor's last known address (according to
the books and records of AI). Posting of the cheque to the last known address shall
be a good discharge of such obligation.
Any cheque not encashed within six months of the issue date shall be cancelled and
5.10
such Scheme Creditor shall not receive any Redress and shall have no right of
recourse to the Dispute Resolution Procedure.
All Redress Amounts shall be paid without (and free and clear of any deduction for)
5.11
set-off or counterclaim. However, for the avoidance of doubt, in calculating the
amount of any Redress Amount, the formula set out in the definition of Redress
Amount shall be utilised.
6
CANCELLATION OF POLICIES
If a Scheme Creditor submits a Claim Form which is received by the Scheme
6.1
Administrators on or before the Bar Date and which seeks payment of Redress in
respect of a Scheme Card Security Product, that Scheme Card Security Product shall
be automatically cancelled as soon as reasonably practicable after the Claim Form is
received by the Scheme Administrators.
7
DISPUTE RESOLUTION PROCEDURE
If a Scheme Creditor elects in writing (the "Dispute Notice") to commence the
7.1
Dispute Resolution Procedure in accordance with Clauses 4.6 or 4.8, the Scheme
Administrators and the Scheme Creditor shall within 30 days of the date of the
Dispute Notice seek to agree the amount (if any) of the Scheme Claim. If agreement
is reached, the Scheme Claim will be admitted in the agreed amount as an Agreed
Scheme Claim. If agreement is not reached, the Scheme Administrators shall pass
the matter to the Scheme Adjudicator 30 days after the date of the Dispute Notice,
or, if later, the date on which either:
7.1.1
the Scheme Administrators consider that it is not reasonably likely that they
will be able to agree the amount (if any) of that Scheme Claim with the
relevant Scheme Creditor; or
7.1.2
the Scheme Creditor states that it has provided all factual information
necessary to determine its Scheme Claim and requests that the matter be
passed to the Scheme Adjudicator,
provided that where a Scheme Creditor has not responded to a decision of the
Scheme Administrators, or any other correspondence sent by the Scheme
Administrators, in respect of a Disputed Scheme Claim within 28 days of that
decision or correspondence, as the case may be, the Scheme Administrators shall
write to the Scheme Creditor to inform them that if the Scheme Creditor wishes to
dispute the Scheme Administrators’ decision the Scheme Creditor must request in
writing, within 28 days of the date of that letter, that the matter be referred to the
Scheme Adjudicator.
On receipt of the matter from the Scheme Administrators, the Scheme Adjudicator
7.2
shall determine in its absolute discretion all matters in dispute as to the existence or
proper value of the Scheme Claim.
The Scheme Adjudicator may, within 15 Business Days of the receipt of the matter,
7.3
request documentary evidence or such other evidence as the Scheme Adjudicator
may require from the Scheme Creditor. Where such a request is made, the Scheme
Creditor must submit such additional information within 15 Business Days of the
request. Where it is not practicable for him to supply the information within 15
Business Days, the Scheme Creditor may seek an extension of time of an additional
15 Business Days for supplying such additional information, but must seek such
extension within the original 15 Business Day deadline. The consequences of failing
to supply the additional information requested by the Scheme Adjudicator, as set out
in Clause 7.4.3 below, shall be made clear to the Scheme Creditor when the Scheme
Adjudicator writes to request the information.
The Scheme Adjudicator shall make its determination:
7.4
7.4.1
within 30 Business Days of the receipt of the matter, or
7.4.2
if additional information is requested by the Scheme Adjudicator and such
information is provided in accordance with Clause 7.3, within 30 Business
Days of receipt of that additional information, or
7.4.3
if additional information is requested by the Scheme Adjudicator but such
information is not provided within 15 Business Days of the request, or within
30 Business Days where an extension has been sought by the Scheme
Creditor in accordance with Clause 7.3, within 30 Business Days of the
expiry of such 15 or 30 Business Day period, as applicable (and such
determination shall then be made based on the information then available to
the Scheme Adjudicator).
The Scheme Adjudicator’s determination will be issued to the Scheme Creditor by
way of a Redress Determination. The Scheme Creditor shall retain the right to make
a complaint to the Ombudsman within six months of the date on which the Scheme
Creditor is sent a Redress Determination, pursuant to DISP 2.8.2R(1). If the Scheme
Adjudicator fails to make its determination, or no Redress Determination is sent to
the Scheme Creditor, within such timeframes, the relevant Scheme Creditor shall be
entitled to complain to the Ombudsman from the date on which they should have
received a Redress Determination within the time limits specified in DISP 2.8.2R(2).
Subject to Clause 7.6 below, the determination of the Scheme Adjudicator on each
7.5
and every issue before it shall be final and binding on the Scheme Administrators,
the Scheme Creditor and each of the Scheme Participants. For the avoidance of
doubt there shall be no right of appeal from the determination of the Scheme
Adjudicator and there shall be no right to make any further claim against or to the
Scheme Adjudicator within the Scheme. The amount payable pursuant to any
determination by the Scheme Adjudicator shall not exceed the Redress Amount.
If (a) a complaint is referred to the Ombudsman by or on behalf of a Scheme
7.6
Creditor on or after 27 January 2015; and (b) within 14 days of the Ombudsman
telling the entity (Schemeco, AI, a Business Partner or Business Partner Affiliate)
against whom the complaint has been made that the complaint has been referred to
the Ombudsman, the relevant entity tells the Ombudsman in writing that the
complaint (or part of the complaint) falls within the scope of the FCA Requirements
referred to at Clauses 2.2.3 and 2.2.4 above, then the Ombudsman will determine
the complaint by reference to what, in the opinion of the Ombudsman, the
determination under the Scheme should be or should have been and the Scheme
Creditor acknowledges that the Ombudsman is bound by the terms of section 404B
of FSMA to take such an approach.
The Scheme Administrators shall appoint the Scheme Adjudicator and may appoint a
7.7
replacement Scheme Adjudicator if a Scheme Adjudicator resigns, or is otherwise
conflicted, or vacates office in accordance with Clause 7.8 below.
The office of the Scheme Adjudicator shall be vacated by the Scheme Adjudicator if
7.8
that Scheme Adjudicator:
7.8.1
dies, becomes bankrupt or mentally disordered;
7.8.2
is convicted of an indictable offence (other than a road traffic offence); or
7.8.3
ceases to be a solicitor.
8
RELEASE BY SCHEME CREDITORS
Pursuant to the terms of the Scheme, each Scheme Creditor shall release, in full and
8.1
final settlement, all or any Scheme Claims and AI Claims and Business Partner
Claims it may have in accordance with this Clause 8.
Each Scheme Creditor who on or before the Bar Date submits a Claim Form (whether
8.2
they are determined to have an Agreed Scheme Claim or not) releases and shall
grant a release to each of Schemeco, AI, the Business Partners and the Business
Partner Affiliates in respect of all its Scheme Claims, AI Claims and Business Partner
Claims (if any), provided that all payment obligations (if any) to such Scheme
Creditor under the Scheme are satisfied by the relevant Scheme Participant, on the
following dates:
8.2.1
in the case of a Scheme Creditor who has an Agreed Scheme Claim in
respect of which a Redress Amount is payable, on the date falling 30
Business Days after a cheque is posted to a Scheme Creditor provided that
such release shall be deemed not to have been granted if a Scheme Creditor
seeks to cash a cheque sent in accordance with the Scheme within 6 months
of issue and such cheque is not honoured; or
8.2.2
in the case of a Scheme Creditor who has an Agreed Scheme Claim, in
respect of which the Redress Amount is equal to or less than zero, on the
date falling 30 Business Days after a Notice of No Loss is posted to such
Scheme Creditor; or
8.2.3
in the case of a Scheme Creditor whose Scheme Claim is rejected such that
such Scheme Claim is not an Agreed Scheme Claim, on the date falling 30
Business Days after a Notice of Rejection is posted to such Scheme Creditor;
8.2.4
in the case of a Scheme Creditor who invokes the Dispute Resolution
Procedure pursuant to Clauses 4.6, 4.8 or 4.9, on the date:
(a)
falling 5 Business Days after the Scheme Administrators issue a
cheque
to
the
Scheme
Creditor
following
the
Redress
Determination of the Disputed Scheme Claim; or
(b)
on which the Scheme Adjudicator rejects the Disputed Scheme
Claim by way of a Redress Determination,
save that the Scheme Creditor shall retain the right to make a complaint to
the Ombudsman within six months of the date on which the Scheme
Creditor is sent a Redress Determination.
Any Scheme Creditor who does not submit a Claim Form on or before the Bar Date
8.3
releases and shall grant a release to each of Schemeco, AI, the Business Partners
and the Business Partner Affiliates in respect of all its Scheme Claims, AI Claims and
Business Partner Claims (if any) on the Bar Date.
Each Scheme Creditor hereby irrevocably authorises the Scheme Administrators to
8.4
enter into, execute and deliver as a deed on behalf of each Scheme Creditor, a
Scheme Liabilities Release Deed Poll to confirm and/or effect the releases referred to
in this Clause 8.
Any release granted by a Scheme Creditor pursuant to this Clause 8 shall be in full,
8.5
final and irrevocable settlement of any Scheme Claims, AI Claims and Business
Partner Claims that the relevant Scheme Creditor may have.
9
INSOLVENCY OF AI OR ANY BUSINESS PARTNER, OR SCHEMECO
If an Insolvency Event occurs with respect to either AI or any Business Partner (the
9.1
"Insolvent Entity"), then the Scheme Administrators shall, to the extent they are
able under applicable law, apply or procure to have applied any funds standing to the
credit of the bank account established in accordance with the terms of the
Implementation Agreement by the Insolvent Entity (the "Insolvent Entity Funds")
in the following order of priority:
9.1.1
first, to honour any cheque issued by the Insolvent Entity in respect of
Redress which remains unpaid;
9.1.2
secondly, in discharge (pro-rata in the event of partial payment) of all
amounts due and payable, or capable of becoming due and payable
(whether as at the date of the Insolvency Event or in the future) from the
Insolvent Entity to Supplierco, Schemeco and/or the Scheme Administrators
under the Implementation Agreement and/or the Scheme Administrator
Appointment Letter;
9.1.3
thirdly, provided that the Scheme Administrators are satisfied that no
further liabilities are required to be discharged pursuant to Clause 9.1.1
above, in discharge of any Redress Amounts which are unpaid at the date of
the Insolvency Event that are payable by the Insolvent Entity in accordance
with the terms of the Implementation Agreement and Clause 5. If the
Insolvent Entity Funds are insufficient to pay all such Redress Amounts in
full, the Scheme Administrators shall apply the Insolvent Entity Funds in
payment of such Redress Amounts on a pari passu basis; and
9.1.4
fourthly, any remaining balance shall be paid to the Insolvent Entity on the
Scheme Obligations Termination Date.
Where the Insolvent Entity is a Business Partner, no Scheme Creditor shall have any
9.2
right to payment from AI, Schemeco or another Business Partner or Business Partner
Affiliate in respect any unpaid Redress Amount which would otherwise have been
payable by the Insolvent Entity in accordance with the terms of the Scheme.
Where the Insolvent Entity is AI, no Scheme Creditor shall have any right to payment
9.3
from Schemeco, or a Business Partner or Business Partner Affiliate in respect of any
unpaid Redress Amount which would otherwise have been payable by AI in
accordance with the terms of the Scheme.
If any Redress Amount remains unpaid following an Insolvency Event in respect of AI
9.4
or a Business Partner as the case may be then:
9.4.1
the unpaid element of the Redress Amount of such an Agreed Scheme Claim
shall cease to be an Agreed Scheme Claim and such Scheme Creditor shall
have the rights which it would have had against AI and / or the relevant
Business Partner as the case may be as if the Scheme Effective Date had
not occurred in respect of that Scheme Creditor;
9.4.2
no further payment will be made under the Scheme to such Scheme
Creditor; and
9.4.3
it shall be for the FSCS to determine whether or not such unpaid claim shall
be a Protected Claim against any Insolvent Entity and therefore eligible for
payment by the FSCS in accordance with the FSCS Rules; and
9.4.4
the Scheme Administrators shall have no obligation to assist the Scheme
Creditor in making a claim against the FSCS.
Following the occurrence of an Insolvency Event in respect of AI or a Business
9.5
Partner and save to the extent that the Scheme Administrators determine (in their
sole discretion) that there are sufficient Insolvent Entity Funds to meet such a claim
in accordance with Clause 9.1 above, the Scheme Administrators shall not be
permitted to admit any Scheme Claim that would fall to be paid by the Insolvent
Entity under the terms of the Scheme (any such claim being an "Insolvency Barred
Claim"). In such circumstances:
9.5.1
the relevant Scheme Creditor shall, in relation to the Insolvency Barred
Claim, have the rights which it would have had against AI and / or the
relevant Business Partner as the case may be as if the Scheme Effective
Date had not occurred in respect of that Scheme Creditor;
9.5.2
no further payment will be made under the Scheme to such Scheme
Creditor in respect of the Insolvency Barred Claim; and
9.5.3
it shall be for the FSCS to determine whether or not such Insolvency Barred
Claim shall be a Protected Claim against any Insolvent Entity and therefore
eligible for payment by the FSCS in accordance with the FSCS Rules.
Notwithstanding the provisions of this Clause 9, the Scheme shall continue in
9.6
accordance with its terms with respect to Scheme Creditors other than those
expressly referred to in Clauses 9.4 and 9.5 above.
None of Schemeco, AI, or the Business Partners or Business Partner Affiliates other
9.7
than the Insolvent Entity shall be liable for any obligations of the Insolvent Entity
under the Scheme.
The Scheme Administrators shall notify each Scheme Creditor entitled to payment
9.8
from the Insolvent Entity of the occurrence of any Insolvency Event in respect of
such Insolvent Entity and such Scheme Creditor's right to make a claim to the FSCS.
If an Insolvency Event occurs in respect of Schemeco, the Scheme shall not be
9.9
affected, and shall continue in accordance with its terms.
10
SCHEME ADMINISTRATORS’ POWERS AND DUTIES
The Scheme Administrators shall be a minimum of two individuals (and not more
10.1
than three) who are each chartered accountants and duly qualified in the reasonable
opinion of Schemeco to discharge the functions of the Scheme Administrators under
the Scheme.
The Scheme Administrators, or any of them, may resign their appointment at any
10.2
time by giving not less than 90 days' notice in writing to each Scheme Participant or
such shorter period as may be agreed by each Scheme Participant provided that a
new Scheme Administrator has been appointed in accordance with Clause 10.4 on or
prior to that resignation taking effect.
The office of the Scheme Administrator shall be vacated by a Scheme Administrator if
10.3
that Scheme Administrator:
10.3.1
dies, becomes bankrupt or mentally disordered;
10.3.2
is convicted of an indictable offence (other than a road traffic offence);
10.3.3
resigns his office by 90 days' notice in writing to each Scheme Participant;
or
10.3.4
ceases to be a chartered accountant.
If there is a vacancy in the office of the Scheme Administrator, Schemeco, after
10.4
consultation with AI and the Business Partners and agreement by the Authority, shall
forthwith appoint as a replacement Scheme Administrator a qualified chartered
accountant.
The Scheme Administrators shall have the powers, duties and functions conferred
10.5
upon them by this Scheme.
The Scheme Administrators shall:
10.6
10.6.1
as soon as reasonably practicable after the Scheme Effective Date:
(a)
write to all Scheme Creditors of whom they are aware (i) notifying
them of the Scheme Effective Date and (ii) inviting them to submit
a Claim Form on or before the Bar Date, provided that the Scheme
Administrators are not obliged to write to Scheme Creditors where
they reasonably determine at their discretion on the information
available to them that the sending of further communications in
connection with the Scheme to the Scheme Creditor will or will be
reasonably likely to cause distress or harm; and
(b)
advertise for Scheme Claims in those newspapers as were used to
advertise
the
Scheme
Meeting
and
such
notice
shall
be
substantially in the form set out at Appendix 4;
10.6.2
have sole responsibility for:
(a)
determining whether any Scheme Claim is an Agreed Scheme
Claim;
(b)
notifying each Scheme Creditor if its claim is a Disputed Scheme
Claim or has been rejected and the reasons for such rejection;
(c)
conduct of Disputed Scheme Claims pursuant to the Dispute
Resolution Procedure or otherwise to the extent that the Scheme
Adjudicator is not responsible in accordance with the terms of the
Scheme; and
(d)
determining whether or not the Exceptional Circumstances apply;
10.6.3
issue cheques to Scheme Creditors with Agreed Scheme Claims in
accordance with the terms of the Scheme and the Implementation
Agreement;
10.6.4
have the power to do all things ancillary to the matters referred to in
Clauses 10.6.1 and 10.6.3 above or which are otherwise required to be done
by the Scheme Administrators in accordance with the Scheme;
10.6.5
have the power to delegate all or any of the functions, powers, rights,
authorities and discretions conferred upon the Scheme Administrators under
the Scheme from time to time and to revoke any such delegation, provided
that the Scheme Administrators shall be responsible for any act or omission
of any such employee or delegate to the same extent as if they had
expressly authorised it;
10.6.6
have the power to defend any proceedings against them in respect of
carrying out their functions and exercising their powers under the Scheme;
and
10.6.7
have the power to apply to the Court for directions in relation to any
particular matter arising in the course of the Scheme.
In the absence of manifest error, none of Schemeco, AI or the Business Partners will
10.7
be entitled to challenge any decision made by the Scheme Administrators as regards
Scheme Claims, Agreed Scheme Claims, the payment of Redress, a Redress
Determination or any Redress Amount.
Save as expressly provided for herein, the Scheme Administrators shall not have any
10.8
duty or responsibility to manage, oversee or conduct the business, property or affairs
of Schemeco and such duty shall remain solely with the directors of Schemeco.
Subject to Clause 10.14, the Scheme Administrators shall not incur any personal
10.9
liability in connection with the preparation, adoption, agreement or implementation
of the Scheme or in connection with any ancillary arrangement including, without
limitation, the deeds and agreements referred to in Part D of the Explanatory
Statement.
The functions and powers of the Scheme Administrators under the Scheme may be
10.10
performed and exercised jointly or severally and any act required to be done by the
Scheme Administrators pursuant to the Scheme may be done by all or any one or
more of them.
The Scheme Administrators may perform their duties through agents and employees
10.11
and shall be entitled to rely on any communication, instrument, document or
information (whether provided in writing or orally) considered by him to be genuine
and correct and shall be entitled to rely upon the advice of, or information obtained
from, any professional advisor or other person instructed by him considered by them
in good faith to be competent.
In carrying out their functions and exercising their powers under the Scheme, the
10.12
Scheme Administrators shall act bona fide with due care and diligence in the
interests of the Scheme Creditors as a whole and they shall use their powers under
the Scheme for the purpose of ensuring that the Scheme is operated in accordance
with its terms. However, nothing in this Scheme shall require the Scheme
Administrators to take any action which would be unlawful in the United Kingdom, or
contrary to any other applicable law.
In carrying out their duties and functions under the Scheme, the Scheme
10.13
Administrators and, where appropriate, the Scheme Adjudicator shall make
reasonable adjustments to the process for administering the Scheme (including
without limitation the process for assessing and determining Scheme Claims, and
(subject to the Bar Date) the deadlines for submitting Scheme Claims and invoking
the Dispute Resolution Procedure) where such adjustments are considered by the
Scheme Administrators or Scheme Adjudicator, as the case may be, to be reasonably
necessary to accommodate the disability of a Scheme Creditor that is notified or
otherwise drawn to the attention of the Scheme Administrators or Scheme
Adjudicator, as the case may be. Such reasonable adjustments shall include, but not
be limited to, providing copies of communications in respect of the Scheme to a
Scheme Creditor in braille, large print or in audio format upon request.
Save as expressly set out in this Scheme, the Scheme Administrators shall act as
10.14
agents of Schemeco (without personal liability) in respect of all functions and powers
conferred on them under the Scheme. The Scheme Administrators shall, in their
capacity as such, incur no liability to any Scheme Creditor or other person arising
from the exercise of any power or discretion vested in them under the Scheme,
except where such liability arises as a result of their own gross negligence, wilful
default, breach of duty, breach of trust, fraud, bad faith or dishonesty (or as a result
of the gross negligence, wilful default, breach of duty, breach of trust, fraud, bad
faith or dishonesty of any employee).
To the extent permitted by law and in the absence of manifest error, no Scheme
10.15
Creditor shall be entitled to challenge the validity of any act done or omitted to be
done in good faith and with due care by the Scheme Administrators in accordance
with and to implement the provisions of the Scheme or the exercise by the Scheme
Administrators in good faith and with due care of any power conferred upon them for
the purposes of the Scheme if exercised in accordance with and to implement the
provisions of the Scheme and the Scheme Administrators shall not be liable for any
loss unless such loss is attributable to their own gross negligence, wilful default,
breach of duty, breach of trust, fraud, bad faith or dishonesty (or to the gross
negligence, wilful default, breach of duty, breach of trust, fraud, bad faith or
dishonesty of any employee).
11
MODIFICATIONS OF THE SCHEME
The Scheme Participants may, at any hearing to sanction the Scheme, consent to
11.1
any modification of the Scheme or terms or conditions that the Court may think fit to
approve or impose.
Subject to Clause 11.3 below, the Scheme Administrators shall have the power at
11.2
any time after the Scheme Effective Date, and if they consider it expedient to do so,
to modify the terms of the Scheme without reference to the Scheme Creditors, so
long as such modification is effected with the consent of each of the Scheme
Participants and the Authority, does not adversely affect the interests under the
Scheme of any Scheme Creditor and is in the best interests of the Scheme Creditors
as a whole.
Where the proposed modification of the Scheme is purely of a technical or legal
11.3
nature, the consent of the Authority shall not be required save that the Scheme
Administrators shall give reasonable prior notification to the Authority of any such
proposed modification.
12
TERMINATION OF THE SCHEME
The Scheme Obligations Termination Date shall be the date on which any one of the
12.1
conditions set out in Clause 12.2 has been satisfied.
The obligations of the Scheme Participants in respect of the Scheme shall terminate
12.2
on the earlier of:
12.2.1
the date the Scheme Administrators give notice to the Scheme Participants
that all Agreed Scheme Claims have been paid in full and the Bar Date has
expired and all Disputed Scheme Claims have been finally determined by
the Scheme Administrators in accordance with Clause 7.1 or the Scheme
Adjudicator in accordance with Clause 7.5, as the case may be; or
12.2.2
the date the Scheme Administrators acting reasonably, and following
consultation with the Scheme Participants, determine that it is no longer
possible to complete the Scheme.
The Scheme Obligations Termination Date shall be notified to the Scheme Creditors
12.3
by way of publication in those newspapers as were used to advertise the Scheme
Meeting. Such notice shall be substantially in the form set out at Appendix 5.
For the avoidance of doubt, the occurrence of the Scheme Obligations Termination
12.4
Date shall mean that no further obligation may arise for any Scheme Participant
under the Scheme, but shall be without prejudice to all other rights and obligations
(including Scheme Creditor releases) under the Scheme.
13
NOTICE
A Claim Form or other notice to be given to the Scheme Administrators or Schemeco:
13.1
13.1.1
must be given in writing;
13.1.2
may be sent by post or may be delivered but shall only be deemed served
upon actual receipt, provided that if such receipt occurs on a Saturday,
Sunday or public holiday or after 5.30 p.m. on any Business Day in London
such Claim Form or other such notice shall be deemed to have been
received at 9.30 a.m. on the next Business Day in London; and
13.1.3
must be addressed to the Scheme Administrators at Ernst & Young LLP, 1
More London Place, London SE1 2AY, FAO Kevin Gill and Ben Cairns.
Any notice given under the Scheme by the Scheme Administrators to any person
13.2
shall be sufficiently served by posting the same by first class (or equivalent) or
airmail post to or leaving the same at the address of such person last known to AI. If
such notice is posted, it shall be deemed to have been received by the addressee 48
hours after the same shall have been posted.
A Claim Form or other notice which is signed by a person authorised by a Scheme
13.3
Creditor on his behalf may be rejected by the Scheme Administrators if it is not
accompanied by a power of attorney duly executed by the Scheme Creditor in favour
of such person whereby such person is authorised to execute the notice concerned,
or by a copy of such power of attorney certified as a true copy thereof by a solicitor
or notary or a person authorised to administer oaths in any relevant jurisdiction,
together with a statutory declaration made by the donee of the power stating that
such power had not been revoked prior to its signature of such notice. In the case of
a Claim Form or other notice which is signed on behalf of a Scheme Creditor which is
a corporation or other legally constituted person or a partnership, the Scheme
Administrators shall not be required to make enquiry as to the authority of the
signatory to sign such notice on behalf of such Scheme Creditor.
14
OBLIGATIONS SEVERAL
The obligations of each Scheme Participant under the Scheme are several. Failure by
a Scheme Participant to perform its obligations under the Scheme does not affect the
obligations of any other Scheme Participant under the Scheme. No Scheme
Participant is responsible for the obligations of any other Scheme Participant under
the Scheme.
15
ASSIGNMENT
No Scheme Creditor may assign its Scheme Claim or any other rights under the
Scheme to any person.
16
BANKRUPTCY
To the extent that any Scheme Claim has vested in a trustee in bankruptcy or is
16.1
subject to an individual voluntary arrangement (pursuant to Part VIII of the
Insolvency Act 1986) in respect of any Scheme Creditor, references to Scheme
Creditor in the Scheme shall be read as references to such Scheme Creditor's trustee
in bankruptcy or the relevant supervisor of such an individual voluntary
arrangement, who shall be bound by and subject to the terms of the Scheme
(including, but not limited to, the provisions set out in Clause 8 above).
It shall be the relevant Scheme Creditor's obligation to inform any relevant trustee in
16.2
bankruptcy or supervisor of the existence of any Scheme Claim and neither
Schemeco, nor the Scheme Administrators, nor AI, nor any Business Partner or
Business Partner Affiliate, shall be responsible for ensuring that such a trustee in
bankruptcy or supervisor has notice of the Scheme, and absent any such notice, any
payment of a Redress Amount or any issue of a Notice of No Loss or a Notice of
Rejection by the Scheme Administrators to the Scheme Creditor shall discharge the
obligations arising under or in connection with the Scheme to that Scheme Creditor.
17
GOVERNING LAW AND JURISDICTION
The Scheme and any non-contractual obligations arising out of or in connection with
17.1
the Scheme shall be governed by, and construed in accordance with, the laws of
England and Wales and the Scheme Creditors hereby agree that the Court shall have
exclusive jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute which may arise out of or in connection with the Explanatory
Statement or any provision of the Scheme, or out of any action taken or omitted to
be taken under the Scheme or any non-contractual obligations arising out of or in
connection with the Scheme. For such purposes, the Scheme Creditors irrevocably
submit to the jurisdiction of the Court, provided, however, that nothing in this Clause
17 shall affect the validity of other provisions determining governing law and
jurisdiction as between Schemeco and its Scheme Creditors, whether contained in
any contract or otherwise.
The Scheme shall take effect subject to any prohibition or condition imposed by law.
17.2
APPENDIX 1
NOTICE CONVENING THE MEETING OF SCHEME CREDITORS TO VOTE ON THE
SCHEME
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF AI SCHEME LIMITED
IN THE MATTER OF THE COMPANIES ACT 2006
NOTICE IS HEREBY GIVEN that by an Order dated 1 April 2015 made in the above matter, the
Court has directed that a meeting (hereinafter called the "Creditors' Meeting") be convened of
the Scheme Creditors (as defined in the Scheme of Arrangement hereinafter mentioned) of
the above named company (hereinafter called "the Company") for the purposes of considering
and, if thought fit, approving (with or without modifications) a Scheme of Arrangement,
proposed to deal with the card protection products bought or renewed by Scheme Creditors
after 14 January 2005, made between the Company and the Scheme Creditors and that the
Creditors' Meeting will be held at Central Hall Westminster, Storey’s Gate, London, SW1H 9NH
commencing at 12pm (midday) on 30 June 2015 at which place and time all such Scheme
Creditors are requested to attend.
Scheme Creditors may vote in person at the Creditors' Meeting or they may appoint another
person, whether a Scheme Creditor or not, as their proxy to attend and vote in their place.
It is requested that voting forms be lodged with AI Scheme Services, PO Box 260,
Wymondham NR18 8DU by 17:00 on 23 June 2015.
By the Order, the Court has appointed Kevin Gill, and in his absence Ben Cairns, both of Ernst
& Young LLP, 1 More London Place, London, SE1 2AF to act as Chairman at the Creditors'
Meeting and has directed the Chairman to report the result of the Creditors' Meeting to the
Court. A copy of the statement required to be furnished pursuant to Section 897 of the
Companies Act 2006 together with certain documents related to the proposed Scheme of
Arrangement (including a copy of the proposed Scheme of Arrangement) are available for
viewing on the following website www.aischeme.co.uk.
If you have not received a pack explaining the Scheme to refund product holders, please
contact our freephone number 0800 678 1930 (outside of the UK dial +44 208 475 3103),
quoting your product number or scheme reference number. We are available between 8am
and 8pm Monday to Friday, and 8am to 6pm on Saturdays. Alternatively, you can write to AI
Scheme Services, PO Box 260, Wymondham NR18 8DU, to request a copy.
APPENDIX 2
CARD SECURITY PRODUCT: COMPENSATION CLAIM FORM
If you have any difficulties completing this form or your name or contact name and/or
address in section A are incorrect, or you have another question about the form please call
our Freephone number 0800 678 1930 (outside the UK dial +44 208 475 3103). We are
available between 8am and 8pm Monday to Friday, and 8am to 6pm on Saturdays.
You may be entitled to compensation if you were affected by issues relating to the way in
which insurance cover for fraudulent use of lost or stolen cards was sold. You may be entitled
to compensation if you purchased the product on the basis of this information.
You may also have other concerns with the way your card security product was sold to you.
If you want to be considered for compensation you must complete, sign and return
this original form to us, to be received by us by 18 March 2016.
If you do not return this original form to us by this date you will lose your right to
claim compensation in respect of the way the product was sold to you, if your
complaint would have been within the scope of the scheme.
If you submit your compensation claim form before 18 March 2016 you will
automatically cancel your card security product (if you still have one). This is
regardless of whether or not you are paid compensation. Cancellation will mean that
you (and anyone else covered by the product) will lose the benefits it provides.
These benefits are set out at page 2 of the covering letter.
If you do not wish to make a claim do not return this form.
Please complete in black ink and use capital letters only. Please return only this original
completed form in the pre-paid envelope provided. Photocopies will not be accepted.
SECTION A: CUSTOMER NAME AND CONTACT DETAILS
IF THE CLAIM IS AGREED A CHEQUE WILL BE MADE PAYABLE TO [INSERT PAYEE].
IF THE NAME IS PRINTED INCORRECTLY IN ANY WAY PLEASE CONTACT THE
SCHEME USING THE DETAILS ABOVE AS SOON AS POSSIBLE TO AVOID ANY DELAY
IN CASHING THE COMPENSATION CHEQUE.
Please note that any amendments you make on this form to the above details will
not be processed in any database. If you wish to update your details please contact
us using the details set out above.
Why you may be entitled to compensation
The following issues affecting the sale of your card security product have been identified:
the product covered you for up to £100,000 (figure varied over time) worth of
unauthorised transactions that occurred after you informed AI that a card was lost
or stolen
You probably did not need this cover, as your bank or card issuer is
typically responsible for any transactions after you report your card as
being lost or stolen.
the product covered you for up to £5,000 (figure varied over time) worth of
unauthorised transactions that occurred before you informed AI that a card was lost
or stolen
You are, however, only liable for unauthorised transactions in limited
circumstances, as your bank or card issuer will usually cover you for
anything over the first £50 of those transactions.
If you think either of these issues affected your decision to buy a card security product, you
can apply for compensation. The product also has other features which are described at page
2 of the covering letter.
You can also be considered for compensation if you have any other complaints about the way
a card security product was sold to you.
SECTION B: WHY YOU WANT TO BE CONSIDERED FOR COMPENSATION
You must fill in the box below to explain why you want to be considered for compensation.
(Please do not write outside the box below)
SECTION B: WHY YOU WANT TO BE CONSIDERED FOR COMPENSATION
PLEASE NOTE THAT ANY ADDITIONAL COMMENTS THAT DO NOT RELATE TO YOUR
REASON FOR CLAIMING COMPENSATION WILL NOT BE PROCESSED
SECTION D: DECLARATION – THIS SECTION MUST BE COMPLETED PRIOR TO
RETURNING THE CLAIM FORM
I confirm the information I have given in this form is true to the best of my knowledge and
belief.
I agree to release AI, Schemeco, the Business Partners and the Business Partner Affiliates
(i.e. bank or card provider), each as defined in the scheme from any further liability for any
claims I may have against them for the types of liabilities covered by this scheme as long
as they comply with the payment terms under this scheme, as set out more fully in the
scheme documents.
I understand that if I make a claim before 18 March 2016 and I still have a card security
SECTION C: ONLY COMPLETE IF YOU ARE AN OVERSEAS RESIDENT
If you are currently resident overseas (and not a member of the British armed forces) we
require confirmation of the following additional details in order to process your claim:
SECTION D: DECLARATION – THIS SECTION MUST BE COMPLETED PRIOR TO
RETURNING THE CLAIM FORM
product, I will automatically cancel that product. This is irrespective of whether my claim is
successful.
(only complete if signing on behalf of a company, trust or partnership)
PLEASE RETURN YOUR COMPLETED CLAIM FORM AS SOON AS POSSIBLE IN THE
ENVELOPE PROVIDED.
WE MUST RECEIVE YOUR COMPLETED CLAIM FORM BY 18 MARCH 2016.
APPENDIX 3
SCHEME LIABILITIES RELEASE AGREEMENT
THE SCHEME CREDITORS and
THE BUSINESS PARTNERS and
AFFINION INTERNATIONAL LIMITED and
AI SCHEME LIMITED
SCHEME LIABILITY RELEASE DEED POLL
In relation to the Scheme
THIS DEED POLL OF RELEASE (this Deed) is made on
(1)
THE SCHEME CREDITORS, as defined in the Scheme and each acting by its agents
and attorneys as appointed pursuant to the Scheme;
In favour of:
(2)
THE BUSINESS PARTNERS as listed and defined in Schedule 1 to this Deed;
(3)
THE BUSINESS PARTNER AFFILIATES as defined in the Scheme (as such term is
defined below);
(4)
AFFINION INTERNATIONAL LIMITED (Registered no. 1008797), a company
incorporated in the United Kingdom whose registered office is at Charter Court, 50
Windsor Road, Slough, SL1 2EJ ("AI"); and
(5)
AI SCHEME LIMITED, (Registered no. 09295299), a company incorporated in the
United Kingdom whose registered office is at 35 Great St. Helen's, London, EC3A
6AP("Schemeco"),
together the "Parties".
(A)
Schemeco has entered into a scheme of arrangement with the Scheme Creditors
under Part 26 of the Companies Act 2006, such scheme of arrangement having been
sanctioned by the Court pursuant to an order of the court dated 9 July 2015 (the
"Scheme").
(B)
Each of the Scheme Creditors has agreed to be bound by the terms of the Scheme
and to give the releases and waivers set out in this Deed in connection with the
Scheme.
DEFINITIONS
Unless otherwise defined in this Deed or the context otherwise requires, words and
expressions used in this Deed shall have the meanings given to them in the Scheme.
IT IS AGREED:
1
Releases and Waivers
1.1
Subject to Clause 1.2, each Scheme Creditor (whether they have an Agreed
Scheme Claim or not) hereby fully, irrevocably and unconditionally releases
each of Schemeco, AI, the Business Partners and the Business Partner
Affiliates and their respective directors and employees to the fullest extent
permissible
by
applicable
law
from
(and
fully,
irrevocably
and
unconditionally waive) any and all claims, actions, debts, losses, liabilities,
demands and proceedings whatsoever, whether existing, prospective or
contingent, known or unknown, which any of the Scheme Creditors has or,
but for this Deed, may in the future have, in any capacity whatsoever
against any and all of Schemeco, AI, the Business Partners and the Business
Partner Affiliates and their respective directors and employees under or in
connection with or arising out of any Scheme Claim, AI Claim or any
Business Partner Claim.
1.2
The release in Clause 1.1 will take effect in respect of the relevant Scheme
Creditor on the following dates:
1.2.1
in the case of a Scheme Creditor who submits a Claim Form on or
before the Bar Date and has an Agreed Scheme Claim in respect of
which a Redress Amount is payable, on the date falling 30 Business
Days after a cheque is posted to the Scheme Creditor in respect of
that Scheme Creditor’s Agreed Scheme Claim, provided that such
release shall be deemed not to have been granted if a Scheme
Creditor seeks to cash a cheque sent in accordance with the
Scheme which has not been cancelled in accordance with the
Scheme and such cheque is not honoured; or
1.2.2
in the case of a Scheme Creditor who submits a Claim Form on or
before the Bar Date and who has an Agreed Scheme Claim, in
respect of which the Redress Amount is equal to or less than zero,
on the date falling 30 Business Days after a Notice of No Loss is
posted to such Scheme Creditor; or
1.2.3
in the case of a Scheme Creditor who submits a Claim Form on or
before the Bar Date and whose Scheme Claim is rejected such that
such Scheme Claim is not Agreed Scheme Claim, on the date falling
30 Business Days after a Notice of Rejection is posted to such
Scheme Creditor; or
1.2.4
in the case of a Scheme Creditor who invokes the Dispute
Resolution Procedure pursuant to Clauses 4.6, 4.8 or 4.9 of the
Scheme, on the date:
(a)
falling 5 Business Days after the Scheme Administrators
issue a cheque to the Scheme Creditor following the
Redress Determination of the Disputed Scheme Claim; or
(b)
on which the Scheme Adjudicator rejects the Disputed
Scheme Claim by way of a Redress Determination,
save that the Scheme Creditor shall retain the right to make a
complaint to the Ombudsman within six months of the date on
which the Scheme Creditor is sent a Redress Determination or, if
the Scheme Adjudicator fails to make its determination, or no
Redress Determination is sent to the Scheme Creditor, within the
specified timeframes, the relevant Scheme Creditor shall be
entitled to complain to the Ombudsman within the time limits
specified in DISP 2.8.2R(2); or
1.2.5
in the case of any Scheme Creditor who does not submit a Claim
Form on or before the Bar Date, on the Bar Date.
2
Execution, Counterparts and Amendment
2.1
This Deed has been executed as a deed and is delivered and takes effect on
the date stated at the beginning of it.
2.2
This Deed may be executed in any number of counterparts, and by each of
the Parties on separate counterparts. Each counterpart is an original, but all
counterparts shall together constitute one and the same instrument.
Delivery of a counterpart of this Deed by e-mail attachment or telecopy shall
be an effective mode of delivery.
2.3
This Deed may not be amended, varied, or modified nor any provision
waived except with prior written consent of each party to this Deed provided
that any amendment which adversely affects the rights of a person who is a
beneficiary of a release or waiver hereunder but is not a party hereto may
not be made without that person's prior written consent.
2.4
In the event that any release or waiver given by a party hereto (the
"Releasor") in favour of another party hereto or other beneficiary hereunder
(the "Releasee") is found by a court of competent jurisdiction to be
unenforceable (an "Unenforceable Release"), the Releasor agrees that it
shall not (and shall not instruct, encourage or support any other person to)
bring or join any action, claim or suit or other proceedings of any kind
against the Releasee in relation to or arising out of any matter or thing
which was the subject of such Unenforceable Release.
3.1
Each of the provisions of this Deed is severable. If any such provision is
held to be or becomes invalid or unenforceable in any respect under the law
of any jurisdiction, it shall have no effect in that respect and the Parties
shall use all reasonable efforts to replace it in that respect with a valid and
enforceable substitute provision the effect of which is as close to its
intended effect as possible.
4.1
The specified third party beneficiaries of the releases, waivers, undertakings
and/or commitments referred to in Clause 1 shall, in each case, have the
right to enforce the relevant terms by reason of the Contracts (Rights of
Third Parties) Act 1999. The rights of any such third party beneficiary are
subject to the other terms and conditions of this Deed.
4.2
Except as provided in Clause 4.1, a person who is not a party to this Deed
shall have no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce any of its terms.
5
Governing Law and Jurisdiction
5.1
This Deed and any non-contractual obligations arising out of or in
connection with it shall be governed by, and construed in accordance with,
English law.
5.2
The courts of England shall have exclusive jurisdiction to settle any dispute
including a dispute relating to non-contractual obligations arising out of or in
connection with this Deed.
5.3
The English courts are the most appropriate and convenient courts to settle
any such dispute in connection with this Deed. Each of the Parties
irrevocably waives any right that it may have to object to an action being
brought in those Courts, to claim that the action has been brought in an
inconvenient forum, or to claim that those Courts do not have jurisdiction.
5.4
References in this Clause 5 to a dispute in connection with this Deed include
any dispute as to the existence, validity or termination of this Deed.
Schedule 1 – Business Partners
1
BARCLAYS BANK PLC (Registered no. 01026167), a public limited company
incorporated in the United Kingdom whose registered address is 1 Churchill Place,
London, E14 5HP;
2
SANTANDER UK PLC (Registered no. 02294747), a public limited company
incorporated in the United Kingdom whose registered address is 2 Triton Square,
Regent's Place, London, NW1 3AN;
3
THE ROYAL BANK OF SCOTLAND PLC (Registered no. SC090312), a public limited
company incorporated in the United Kingdom whose registered address is 36 St
Andrew Square, Edinburgh, EH2 2YB;
4
HSBC BANK PLC (Registered no. 00014259), a public limited company incorporated
in the United Kingdom whose registered address is 8 Canada Square, London, E14
5HQ;
5
CLYDESDALE BANK PLC (Registered no. SC001111), a public limited company
incorporated in the United Kingdom whose registered address is 30 St. Vincent Place,
Glasgow, G1 2HL;
6
TESCO PERSONAL FINANCE PLC (Registered no. SC173199), a public limited
company incorporated in the United Kingdom whose registered address is Interpoint
Building, 22 Haymarket Yards, Edinburgh, EH12 5BH;
7
CAPITAL ONE (EUROPE) PLC (Registered no. 03879023), a public limited
company incorporated in the United Kingdom whose registered address is Trent
House, Station Street, Nottingham, NG2 3HX;
8
LLOYDS BANK PLC (Registered no. 00002065), a public limited company
incorporated in the United Kingdom whose registered address is 25 Gresham Street,
London, EC2V 7HN;
9
NORTHERN BANK LIMITED T/AS DANSKE BANK (Registered no. R0000568), a
company incorporated in Northern Ireland whose registered address is Donegall
Square West, Belfast, BT1 6JS;
10
THE CO-OPERATIVE BANK PLC (Registered no. 0990937), a public limited
company registered in England whose registered address is at PO Box 101, 1 Balloon
Street, Manchester, M60 4EP; and
11
AIB GROUP (UK) PLC T/AS (I) FIRST TRUST BANK IN NORTHERN IRELAND
AND (II) ALLIED IRISH BANK (GB) IN GREAT BRITAIN (Registered no.
NI018800), a public limited company registered in Northern Ireland whose registered
address is 92 Ann Street, Belfast, BT1 3HH, Northern Ireland
(together the "Business Partners").
In witness of which the Scheme Creditors have executed and delivered this Deed on the date
stated at its beginning:
The Scheme Creditors
SIGNED as a DEED POLL by
[Ben Cairns] [Kevin Gill] of
Ernst and Young, in his
capacity as Scheme Administrator
for and on behalf of the
SCHEME CREDITORS:
In the presence of
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF AI SCHEME LIMITED
IN THE MATTER OF THE COMPANIES ACT 2006
NOTICE IS HEREBY GIVEN that by an Order dated 9 July 2015 made in the above matter, the
Court has sanctioned the scheme of arrangement (the "Scheme") proposed to be made
between the above named company (hereinafter called "the Company") and its Scheme
Creditors (as defined in the Scheme). A copy of the Order was delivered to the Registrar of
Companies in England and Wales on 17 August 2015, and the Scheme became effective on
that date.
Please not that all Scheme Creditors are now bound by the provisions of the
Scheme.
A copy of the terms of the Scheme is available to download from www.aischeme.co.uk.
Should you require a paper copy, please contact AI Scheme Services, PO Box 260,
Wymondham NR18 8DU, and a copy will be sent to you free of charge.
Scheme Creditors will receive a claim form together with documents setting out additional
information.
Scheme Creditors wishing to submit a claim under the Scheme must complete and return
their original claim form by post to AI Scheme Services, PO Box 260, Wymondham NR18 8DU
on or before 18 March 2016. No claim forms received after 18 March 2016 will be accepted
(other than where one or more Exceptional Circumstances (as defined in the Scheme)
applies). No claims made by email, telephone or using photocopies of the original claim form
will be accepted.
The Scheme website and the documents that Scheme Creditors will receive with the claim
form contain important information and guidelines explaining the process for submitting a
claim.
Further information and contact details
Any Scheme Creditor who has any questions concerning this notice or who requires assistance
in completing the claim form, should contact our freephone number 0800 678 1930 (outside
of the UK dial +44 208 475 3103), quoting your policy number or scheme reference number.
The telephone helpline is available between 8am and 8pm Monday to Friday, and 8am to 6pm
on Saturdays. Further information may be obtained from www.aischeme.co.uk.
APPENDIX 5
NOTICE OF SCHEME OBLIGATIONS TERMINATION DATE
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF AI SCHEME LIMITED
IN THE MATTER OF THE COMPANIES ACT 2006
NOTICE IS HEREBY GIVEN that the Scheme Obligations Termination Date (as defined in the
Scheme of Arrangement made between AI Scheme Limited and its respective Scheme
Creditors pursuant to Part 26 of the Companies Act 2006 which was sanctioned in the High
Court of Justice of England and Wales on 9 July 2015 and became effective on 17 August
2015) occurred on [●].