Dated this 31st May 2000
Deed
between
RICHARD JOHN PIROUET
and
CLIVE AUBREY CHARLES CHAPLIN
and
RONALD WILLIAM GREEN
and
VICTOR ALOYSIUS HEBERT
THIS DEED is made the 31st day of May 2000
BETWEEN
RICHARD JOHN PIROUET of La Colline, Le Mont Cambrai, St. Lawrence, Jersey, CLIVE
AUBREY CHARLES CHAPLIN of Whiteley Chambers, Don Street, St Helier, Jersey and
RONALD WILLIAM GREEN of Minden House, 6 Minden Place, St Helier, Jersey, and
VICTOR ALOYSIUS HEBERT of 333 Bush Street, San Francisco, California 94104-2878,
USA (together the "Trustees")
SUPPLEMENTAL TO:-
1. A settlement of trust dated 16 February 1990 and made between Berkeley
Govett & Company Limited and John Gerald Patrick Wheeler and Ian Walter
Stanley Strang and known as the Berkeley Govett & Company Limited 1990
Employee Share Option Trust (the "Settlement").
2. A Deed dated 14 April 1992 made by John Gerald Patrick Wheeler and Ian
Walter Stanley Strang resolving to change the name of the Settlement to
THE GOVETT & COMPANY EMPLOYEE SHARE OPTION TRUST.
3. An Instrument dated 18 March 1994 between John Gerald Patrick Wheeler,
Ian Walter Stanley Strang and Richard John Pirouet whereby John Gerald
Patrick Wheeler retired as Trustee and Richard John Pirouet was
appointed as a new Trustee.
4. An Instrument dated 27 September 1994 between Ian Walter Stanely
Strang, Richard John Pirouet and Clive Aubrey Charles Chaplin whereby
Clive Aubrey Charles Chaplin was appointed as a new Trustee.
5. An Instrument dated 3 March 1995 between Ian Walter Stanley Strang,
Richard John Pirouet and Clive Aubrey Charles Chaplin whereby Ian
Walter Stanley Strang retired as a trustee.
6. A Deed dated 29 December 1995 made by Richard John Pirouet and Clive
Aubrey Charles Chaplin resolving to change the name of the Settlement
to THE LONDON PACIFIC GROUP 1990 EMPLOYEE SHARE OPTION TRUST.
7. A Deed dated 22 August 1996 made by Richard John Pirouet, Clive Aubrey
Charles Chaplin and Ronald William Green whereby Ronald William Green
was appointed an Additional Trustee.
8. Amendment No.1 to the Rules of the Settlement approved and adopted by
resolution of the Trustees of the Settlement on the 24th October 1995
9. Amendment No.2 to the Rules of the Settlement approved and adopted by
resolution of the Trustees of the Settlement on the 29th January 1996
10. A Deed dated 29th August 1998 made by and between the Trustees whereby
Victor Aloysius Hebert was appointed as a new Trustee of the Settlement
11. A Deed dated 20th November 1998 between London Pacific Group Limited
and the Trustees amending the Rules of the Settlement with effect from
30th November 1998
WHEREAS:-
A. The Trustees are the present trustees of the Settlement.
B. By Clause 22.2 of the Settlement, the Trustees have power from time to
time by instrument in writing to revoke, alter or amend all or any of
the provisions of the Rules
C. By Rule 10(b) of the Rules, the Trustees have power to amend, suspend
or terminate the Rules at any time and for any reason
D. The Trustees are desirous of exercising the powers set out above in
such manner as herein appears.
E. Where the context admits words and phrases used herein shall bear the
same meaning herein as in the Settlement.
NOW THIS DEED WITNESSETH that in exercise of the power conferred upon them by
Clause 22.2 of the Settlement and Rule 10(b) of the Rules the Trustees HEREBY
DECLARE that the Settlement shall be, with effect from 2nd June 2000, read and
construed as if the provision specified in the Schedule hereto were expressly
incorporated in the Settlement.
IN WITNESS whereof this Deed has been executed by the Trustees the day and year
first above written.
THE SCHEDULE
Schedule 2 of the Settlement (the Rules) shall be deleted in its entirety and
shall be replaced by the following:
"
SCHEDULE 2
THE LONDON PACIFIC GROUP
1990 EMPLOYEE SHARE OPTION TRUST
RULES
These Rules have been established pursuant to the London Pacific Group 1990
Employee Share Option Trust established by a Settlement dated 16th February,
1990.
1. Definitions
1.1 In these Rules wherever the context permits the following
expressions shall have the meanings set against them:-
(a) "Company" shall mean London Pacific Group Limited, a
company incorporated with limited liability in
Jersey, Channel Islands;
(b) "Employee" means any employee, including an officer
or director, of a member of the Group;
(c) "Expiration Date" means the last day of the term of
an Option established by an Option Agreement;
(d) "the Group" means the Company and its Subsidiaries;
(e) "Option" means a stock option granted pursuant to
these Rules;
(f) "Option Agreement" means the written agreement
described in Rule 5(b) evidencing the grant of an
Option to an Employee or Consultant and containing
the terms, conditions and restrictions pertaining to
such Option;
(g) "Option Shares" means the Shares subject to an
Option;
(h) "Optionholder" means an Employee who holds an Option;
(i) "Relevant Optionholder" means any Optionholder
employed by North American Trust Company of 225
Broadway, Suite 500, San Diego, California 92101
("NATC") as at the 10th November, 1998, designated as
a Relevant Optionholder by the Trustees in writing at
the Trustees' sole and unfettered discretion;
(j) "Relevant Option Shares" means in relation to a
Relevant Optionholder such number of Option Shares as
are notified to such Relevant Optionholder by the
Trustees in writing;
(k) "Relevant Vesting Date" means the 31st March, 1999;
(l) "Rules" unless the context clearly indicates
otherwise, means a rule of the Trust;
(m) "Settlement" means the Settlement dated 16th
February, 1990 known as The London Pacific Group 1990
Employee Share Option Trust;
(n) "Share" means an Ordinary Share of 5c each in the
Company;
(o) "Subsidiary" means a Subsidiary of the Company, as
determined by the Trustees in accordance with the
terms of the Settlement;
(p) "$" or "dollar" or "c" or "cent" refers to the legal
tender of the United States of America;
(q) "Trust" means The London Pacific Group 1990 Employee
Share Option Trust as amended from time to time; and
(r) "Trustees" means the Trustee or Trustees for the time
being of the Trust.
1.2 The singular includes the plural and vice versa.
1.3 The masculine includes the feminine and vice versa and each
includes neuter.
2. Administration
(a) The Trustees shall have full power and discretion, subject to
the express provisions of these Rules:
(i) To determine from time to time which Employees shall
be granted Options, the term of each Option, the time
or times at which all or portions of an Option may be
exercised and the number of Shares subject to an
Option;
(ii) To construe and interpret these Rules and Options
granted under it, and to amend and revoke the Rules
and regulations for administration of this Plan. In
the exercise of this power, the Trustees shall
generally determine all questions of policy and
interpretation that may arise, and may correct any
defect, omission or inconsistency in these Rules or
in any Option Agreement in a manner and to the extent
it shall deem necessary or expedient to make these
Rules fully effective;
(iii) To prescribe the terms and conditions of each Option,
including without limitation the exercise price, and
to specify the provisions of each Option;
(iv) Subject to applicable legal restrictions and the
consent of the Optionholder affected, to amend any
outstanding Option Agreement, including without
limitation the acceleration in whole or in part of
the exercise schedule of any Option outstanding;
(v) Generally, to exercise such powers and to perform
such acts as are deemed necessary or expedient to
promote the best interests of the Company.
(b) All decisions, interpretations and other actions of the
Trustees shall be final and binding on all Optionholders and
all persons deriving their rights from an Optionholder. The
Trustees shall not be liable for any action that they have
taken or failed to take in good faith with respect to these
Rules or any Option.
3. Eligibility
Options may be granted to any Employees.
4. Shares Subject to Rules
(a) Restrictions.
When the Trustees grant an Option they shall retain, for themselves or
others, such rights to repurchase or cancel, rights of first refusal,
and other transfer restrictions applicable to Shares upon exercise of
the Option, or shall impose such other restrictions on the Shares, as
the Trustees may determine. The terms and conditions of any such rights
or other restrictions shall be set forth in the relevant Option
Agreement.
(b) No Rights as a Shareholder.
An Optionholder shall have no rights as a shareholder with respect to
any of his Option Shares until the issue to him (as evidenced by the
appropriate entry in the register of members of the Company) of a share
certificate evidencing his holding of such Shares. Subject to Rule 7
hereof no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property),
distributions, or other rights with respect to which the record date is
prior to the date the said share certificate is issued.
5. Grant of Options
(a) General.
The Trustees may grant Options at any time and from time to time during
the Trust Period of the Settlement. The Trustees shall specify the date
of grant or, if the Trustees fail to do so, the date of grant shall be
the date of the action taken by the Trustees to grant the Option.
(b) Option Agreement.
As soon as practicable after the grant of an Option, the Optionholder
and the Company shall enter into a written Option Agreement
substantially in the form of the Appendix hereto which specifies the
date of grant, the number of Option Shares, the exercise price, the
other terms and conditions of the Option and any special restrictions
on the Option Shares.
(c) Exercise Price.
The exercise price of Shares under each Option shall be determined by
the Trustees, having regard to the price at which the Shares have been
purchased.
(d) Limits on Exercise.
Subject to the other provisions of these Rules, an Option shall be
exercisable in its entirety at grant or at such times and in such
amounts as are specified in the Option Agreement. Notwithstanding the
terms of the Rules and any
Option Agreement, as amended, in the event that the shares of the
Company are de-listed from the London Stock Exchange and the New York
Stock Exchange, all unvested Options shall vest immediately prior to
such de-listing. For the purposes of this Rule an Option is "unvested"
if it is not exercisable and an Option vests when it becomes
exercisable for the first time.
(e) Exercise Procedures.
To the extent the right to acquire Shares has accrued, Options may be
exercised, in whole or in part, from time to time, by written notice
from the Optionholder to the Trustees stating the number of Shares
being acquired and the date of the Option Agreement representing the
Option which is being exercised. The written notice shall be
accompanied by payment of the exercise price for the Shares, and other
applicable amounts, as provided in Rule 6.
(f) Termination of Employment; Death; Disability.
Subject as provided below, and in particular to Rule 5(j), if, for any
reason other than death or permanent and total disability, an
Optionholder's employment by the Company or a Subsidiary terminates,
Options held at the date of termination (to the extent then
exercisable) may be exercised in the whole or in part at any time
within one month after the date of such termination, or such greater or
lesser period as is specified in the Option Agreement, as amended (but
in no event after the Expiration Date), but not thereafter. For the
purposes of this Clause 5(g) an Optionholder's employment by a
Subsidiary shall be deemed to terminate if the company employing the
Optionholder ceases to be a Subsidiary. If an Optionholder dies or
becomes permanently and totally disabled (as determined by the
Trustees) while employed by the Group (or, in the event of death,
within the period that the Option remains exercisable after termination
of employment), Options
then held (to the extent then exercisable) may be exercised in whole or
in part by the Optionholder, by the Optionholder's personal
representative, or by the person to whom the Option is transferred by
will or the laws of inheritance, at any time within one year after the
date of death or permanent and total disability of the Optionholder or
if less, the period specified in the Option Agreement, but in no event
after the Expiration Date. In the event of the termination of
employment, death or disability of the Optionholder before the
Option shall have become fully exercisable, the Option, to the extent
not then exercisable shall lapse and the Company or the Trustees shall
be under no liability whatsoever with regard thereto.
(g) Leaves of Absence.
For purposes of Rule 5(g) above, an Optionholder's employment shall not
be deemed to terminate by reason of sick leave, military leave, or
other leave of absence approved by the Trustees.
(h) Modification, Extension and Renewal of Options.
Within the limitations of these Rules, the Trustees may modify, extend
or renew outstanding Options or may accept the cancellation thereof (to
the extent not previously exercised) for the granting of new Options in
substitution therefor. Notwithstanding the foregoing, no modification
shall, without the consent of the Optionholder, alter or impair his
rights or obligations under an Option.
(i) Overriding Provisions
The following provisions shall only have effect in the event of the
closing of the sale of NATC pursuant to the terms of an agreement dated
24th September, 1998, between NATC and City National Bank.
(i) Notwithstanding any provision in these Rules or in
any Option Agreement to the contrary, an Option held
by a Relevant Optionholder shall be exercisable in
whole or in part, at the discretion of the Relevant
Optionholder, over Relevant Option Shares from the
Relevant Vesting Date PROVIDED THAT the Relevant
Optionholder continues to be an employee of either
(1) NATC; or (2) City National Bank as at the
Relevant Vesting Date.
(ii) Notwithstanding any provision in these Rules or in
any Option Agreement to the contrary, in the event of
a Relevant Optionholder either being made redundant
or being asked to leave the employment of NATC or
City National Bank without due cause, in either case
before the Relevant Vesting Date, an Option held by
such Relevant Optionholder shall be exercisable in
whole or in part at the discretion of the Relevant
Optionholder over Relevant Option Shares from the
date of such termination of employment. For the
purposes of clarification of this Rule, in the event
of the Relevant Optionholder: (1) leaving his
employment of his own volition, or (2) having his
employment terminated for Cause, before the Relevant
Vesting Date, any Option held by such Relevant
Optionholder shall lapse and the Company or the
Trustees shall be under no liability whatsoever with
regard thereto.
As used herein, "Cause" includes, as exclusively
determined by the Trustees, the Relevant
Optionholder's:
(1) wilful misconduct against the Group or any of its
directors, officers, employees or agents;
(2) breach of confidentiality against any Group
company;
(3) gross negligence in the course of or in
connection with the Relevant Optionholder's
services for the Group;
(4) illegal or unethical business practices; or
(5) a conviction by a competent court of law for a
criminal offence.
(iii) In the event of an Option becoming exercisable under
the provisions of Rule 5(j)(i), such Option shall, if
at all, be exercised before 31st March, 2001, and
whether or not the Relevant Optionholder is at the
time of exercise of such Option an employee of NATC
or City National Bank. In the event that such Option
is not exercised before
31st March, 2001, the said Option shall lapse and
the Company or the Trustees shall be under no
liability whatsoever with regard thereto.
(k) Transferability
Options may not be transferred unless otherwise specifically
provided in the Option Agreement, other than by will or the
laws of descent and distribution.
6. Payment upon Exercise of Options
(a) Exercise Price.
The exercise price of Shares acquired under this Plan shall be paid
either in full at the time an Option is exercised or pursuant to any
deferred payment arrangement that the Trustees in their discretion may
approve; provided, however, that unless otherwise approved by the
Trustees, any deferred payments shall bear interest at such rate as the
Trustees may determine in their absolute discretion.
(b) Form of Consideration.
If, and to the extent, permitted or authorised by the Trustees, in
their absolute discretion, an Optionholder may make all or any portion
of any payment due to the Company upon exercise of an Option by
delivery of any property (excluding shares of the Company) other than
cash, so long as such property constitutes good and valuable
consideration for the Shares under applicable law and is surrendered in
good form for transfer.
7. Adjustment of Shares
If the number of Shares in issue is hereafter increased or decreased,
or Shares are changed into or exchanged for a different number and/or
kind of shares or other securities of the Company or of another
corporation, by reason of a reorganisation, merger, consolidation or
other acquisition, capitalisation, reclassification,
consolidation, division or subdivision or declaration of stock
dividends, or a special dividend is declared, the total number and/or
kind of Shares for the acquisition of which Options may be granted
under these Rules, and the number and/or kind of Shares as to which
Options (or portions thereof) are outstanding, may be adjusted pro rata
by the Trustees. Any adjustment in an outstanding Option shall be made
without change in the aggregate exercise price applicable to the
unexercised portion of such Option but with a corresponding adjustment
in the exercise price per Share. Any adjustment under this Rule 7 shall
be subject to the provisions of the Company's Memorandum and Articles
of Association, as amended, and applicable law.
8. No Right to Employment
Neither these Rules nor any Option granted hereunder shall confer upon
any Optionholder any right with respect to continuation of employment
by, or the provision of consulting services to, the Company or any of
its Subsidiaries, or shall interfere in any way with the Company's or
any of its Subsidiaries' right to terminate the employment or services
of any Optionholder at any time with or without cause.
9. Legal Requirements
The Company shall not be obliged to issue any Shares upon exercise of
any Option unless the Shares are at that time listed on a Stock
Exchange or effectively registered or exempt from registration under
any relevant securities laws of the United States or the United Kingdom
and the issue of the Shares is otherwise in compliance with all
such applicable securities laws and the regulations of any Stock
Exchange on which the Company's securities may then be listed. The
Company shall have no obligation to register the Shares under any
securities laws of the United States or the United Kingdom or to take
any other steps which may be necessary to enable the Shares to be
issued under any securities laws. Upon exercising all or any portion of
any Option, an Optionholder may be required to furnish representations
or undertakings deemed appropriate by the Company to enable the issue
of the Shares or subsequent transfers of any interest in the Shares to
comply with applicable securities laws. Certificates
evidencing the holding of Shares issued upon exercise of Options may
bear any legend required by, or useful for purposes of compliance with,
applicable securities or other laws, these Rules or the Option
Agreements.
10. Duration and Amendments
(a) Duration.
These Rules shall become effective on the date of
execution of the Settlement and terminate automatically on
expiration of the Trust Period under the Settlement. These
Rules, any amendments to these Rules and any Options granted
hereunder whose validity depends upon amendments subject to
approval of holders of Shares shall be null and void if such
approval is not obtained.
(b) Amendment; Termination.
The Trustees may amend, suspend or terminate these
Rules at any time and for any reason; provided, however, that
any amendment which increases the number of Shares available
for issue by the Company under these Rules (except as provided
in Rule 7) shall be subject to the approval of the holders of
Shares. Such shareholders' approval shall not be required for
any other amendments of these Rules.
(c) Effect of Amendment or Termination.
No Shares shall be issued under these Rules after the
termination hereof, except pursuant to an Option granted
before termination. Termination or amendment of these Rules
shall not affect any Shares previously acquired or any Option
previously granted under these Rules.
11. Proper Law
These Rules and all Option Agreements entered into pursuant to them
shall be governed by and construed in accordance with the laws of the
Island of Jersey.
These Rules have been amended by an Amendment No. 1 effective from 29th
December, 1995, an Amendment No. 2 effective from 29th January, 1996,
an Amendment No. 3 effective from 30th November, 1998, and an Amendment
No. 4 effective from 2nd June 2000"
SIGNED by the said
RICHARD JOHN PIROUET
in the presence of:-
SIGNED by the said
CLIVE AUBREY CHARLES CHAPLIN
in the presence of:-
SIGNED by the said
RONALD WILLIAM GREEN
in the presence of:-
SIGNED by the said
VICTOR ALOYSIUS HEBERT
in the presence of:-