1
BERKELEY (USA) HOLDINGS LIMITED
AMENDED AND RESTATED
1993 DEFERRED COMPENSATION PLAN
1. Purpose.
The purpose of this plan is to provide for supplemental deferred
compensation as a reward and incentive to designated employees who,
through their unique efforts and abilities, contribute materially to the
success of Berkeley (USA) Holdings Limited and its subsidiaries.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Account" shall mean the account established and maintained under
Section 5.
(b) "Administrator" shall mean the entity responsible for
administering this Plan, as provided in Section 3.
(c) "Affiliated Entity" shall mean any business entity, corporation or
company which is 50% or more owned or controlled by London Pacific
Group Limited, or any investment fund for which the Company or an
Affiliated Entity provides financial consulting services,
management services, advisory services, or financing in its
ordinary course of business.
(d) "Beneficiary" shall mean a beneficiary designated by a Participant
under Section 8.
(e) "Board" shall mean the Board of Directors of Berkeley (USA)
Holdings Limited, as constituted from time to time.
(f) "Bonus Election" shall mean a Participant's election to defer
compensation under this Plan in an amount up to 100% of bonuses
otherwise payable during the applicable Earning Period.
(g) "Company" shall mean the employer of a participant.
(h) "Corresponding Securities" shall mean the stock, options,
warrants, debt, or other security (or combination thereof) of
another corporation or partnership which has been designated by
the Administrator and selected by a Participant as the measuring
standard for determining the Redemption Value of such
Corresponding Securities.
(i) "Deferral Period" for particular Corresponding Securities shall
mean the period of time beginning at the crediting of such
Corresponding Securities to a Participant's Account and ending at
the redemption of such Corresponding Securities.
(j) "Dividend Equivalents" shall mean an amount credited to a
Participant's Account equal to cash dividends actually received by
the Hedging Entity, or if applicable the Affiliated Entity, with
respect to Underlying Securities during the Deferral Period.
(k) "Earning Period" shall mean each six-month period of the calendar
year in advance of which a Participant elects to contribute to
this Plan in lieu of all or a
specified portion of salary and/or bonuses otherwise payable to an
Employee upon occurrence of any conditions specified by the
Administrator.
(l) "Earn-out Payments" shall mean any cash payments actually received
by the Hedging Entity, or if applicable the Affiliated Entity, in
consideration of, and attributable to, the prior sale or exchange
of Underlying Securities as determined solely with respect to
earnings or some other similar objective standard(s) included in a
merger or acquisition agreement (or similar agreement).
(m) "Employee" shall mean any individual, including an officer or a
director, who is employed by the Company, any portion of whose
compensation is subject to withholding of income tax and/or for
whom contributions under the Federal Insurance Contribution Act
are made by the Company.
(n) "Expiration Date" as to particular Corresponding Securities shall,
except as provided in Section 4(b), mean the date:
(i) with respect to Corresponding Securities that are
denominated as equity, three years after the date on which
the Corresponding Securities are credited to a
Participant's Account, except that equity shares credited
at any time on account of a conversion from debt, stock
split, stock dividend, anti-dilution adjustment pursuant to
Rule 144 or 145 promulgated under the Securities Act of
1933, as amended (the "Act") or pursuant to
Section 3(a)(10) of the Act, or other change in capital
structure relating to the Corresponding Securities, or due
to any acquisition, merger or reorganization requiring an
adjustment of the number of equity shares originally
credited, shall have the same Expiration Date as the
originally designated Corresponding Securities; or
(ii) with respect to Corresponding Securities that are
denominated as debt, the later of:
(a) three years after the date on which the
Corresponding Securities are credited to a
Participant's Account; or
(b) the stated final maturity date of the Corresponding
Securities. If Underlying Securities that are
convertible debt are converted (whether optional or
mandatory) into equity by the Hedging Entity, or if
applicable the Affiliated Entity, before the
expiration of the time limit imposed by
sub-section (ii)(a) of this Section 2(n), then
subsection (ii)(b) of this Section 2(n) shall not be
applicable, and the related Corresponding Securities
shall be treated pursuant to subsection (i) of this
Section 2(n). In the case of Corresponding
Securities representing a mix denominated as both
equity and debt, the Corresponding Securities shall
be treated as debt pursuant to subsection (ii) of
this Section 2(n), unless, whether by an optional or
mandatory event, the debt portion of such
Corresponding Securities has been extinguished, such
that only an equity portion of the Corresponding
Securities remains, in which case subsection (i) of
this Section 2(n) shall apply.
(o) "Hedging Entity" shall mean the subsidiary or subsidiaries of
London Pacific Group Limited designated to invest in Underlying
Securities relating to the Corresponding Securities.
(p) "Interest Equivalents" shall mean an amount credited to a
Participant's Account equal to the interest actually received by
the Hedging Entity, or if applicable the Affiliated Entity, with
respect to Underlying Securities during the Deferral Period.
(q) "Participant" shall mean an Employee who under Section 4 elects to
defer compensation under this Plan in lieu of all or a specified
portion of salary or bonuses otherwise payable during the relevant
Earning Period. A person who is designated by the Administrator as
eligible to become a Participant shall remain so eligible unless
and until the Administrator revokes such eligibility.
(r) "Plan" shall mean this Berkeley (USA) Holdings Limited 1993
Deferred Compensation Plan, as it may be amended from time to
time.
(s) "Publicly Traded" shall mean, with respect to any Corresponding
Securities, that Underlying Securities relating to the
Corresponding Securities have been listed (and are then currently
listed) for trading on one or more national securities exchanges
and/or the automated quotation system of a registered securities
exchange (as such terms are defined in the Securities Exchange Act
of 1934).
(t) "Redemption Request" shall mean a request by a Participant
pursuant to Section 4(f) to have the Redemption Value of
Corresponding Securities credited to the Participant's Account.
(u) "Redemption Value" of Corresponding Securities shall mean:
(i) with respect to Publicly Traded securities, (x) if a
Redemption Request has not been made by the Participant or
(y) if a Redemption Request has been made by the
Participant in accordance with Section 4(f) and the Hedging
Entity (or if applicable the Affiliated Entity) sells the
Underlying Securities, the gross proceeds (less commissions
and any other expenses) received by the Hedging Entity, or
if applicable the Affiliated Entity, from the sale of
Underlying Securities, including equity which was the
result of a conversion from convertible debt, when the
Hedging Entity, or if applicable Affiliated Entity,
participates as a selling shareholder in an initial public
offering of such equity, or sale pursuant to Rule 144, or
otherwise;
(ii) with respect to Publicly Traded securities, if a Redemption
Request has been made by the Participant in accordance with
Section 4(f) and the Hedging Entity, or if applicable the
Affiliated Entity, does not sell the Underlying Securities,
the closing quoted market price for the sale of Underlying
Securities on the seventh calendar day after the date the
Redemption Request is received by the Administrator. If
that seventh calendar day is a day on which the exchange on
which the Publicly Traded securities are sold is not open,
the Redemption Value shall be the closing quoted market
price for the sale of Underlying Securities on the first
trading day after that seventh calendar day;
(iii) with respect to debt securities, the principal amount
received by the Hedging Entity, or if applicable Affiliated
Entity, upon the sale or retirement of such Underlying
Securities;
(iv) with respect to any acquisition, reorganization or merger
of the issuer of Underlying Securities, where the Hedging
Entity, or if applicable Affiliated Entity, actually
receives cash for its Underlying Securities, the Redemption
Value of Corresponding Securities shall mean the amount of
cash actually received in any such transaction, including
Earn-out Payments (received over time); or
(v) in the event of employment termination, the initial stated
acquisition price of the Corresponding Securities not yet
redeemed. In no event, however, shall the Redemption Value
of Corresponding Securities be less than the initial stated
acquisition price of the Corresponding Securities.
(v) "Salary Election" shall mean a Participant's election to defer
compensation under this Plan in an amount up to 100% of base
salary otherwise payable during the applicable Earning Period.
(w) "Underlying Securities" shall mean that portion of the stock,
options, warrants, debt, or other security (or combination
thereof) of another corporation or partnership which has been
purchased by a Hedging Entity, or if applicable Affiliated Entity,
and which is represented by Corresponding Securities.
3. Administration.
(a) This Plan shall be administered by the Board unless and until the
Board delegates such administration to a committee pursuant to
Section 3(c).
(b) Subject to the express provisions of this Plan, the Administrator
shall have full power and discretion:
(i) to construe and interpret this Plan. In the exercise of
this power, the Administrator shall generally determine all
questions of policy and interpretation that may arise, and
may correct any defect, omission, or inconsistency in this
Plan in a manner and to the extent it shall deem necessary
or expedient to make this Plan fully effective;
(ii) to prescribe the terms and conditions of each Corresponding
Security, including without limitation the minimum and
maximum individual Participant participation, the source
(i.e., salary and/or bonus) of such participation and the
aggregate amount of participation and to specify the
provisions (which need not be identical) thereof. In the
discretion of the Administrator, Corresponding Securities
may be designated where no investment in the Underlying
Securities is made by the Hedging Entity. In such event,
the Administrator shall apply the same standards set forth
in Section 5 otherwise applicable to Corresponding
Securities represented by the purchase of Underlying
Securities by Affiliated Entities;
(iii) subject to applicable legal restrictions and the consent of
all Participants affected, to amend the terms of any
outstanding Corresponding Securities;
(iv) to amend, suspend or terminate this Plan as provided in
Section 9; and
(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.
(c) The Board, by resolution, may delegate administration of this Plan
(including, without limitation, the Board's powers under
Section 3(b)) to a committee. The committee shall then have the
administrative powers theretofore possessed by the Board under
this Plan, and such further administrative powers that are not
inconsistent with the provisions of this Plan as the Administrator
may adopt from time to time. The Board at any time may revest in
itself the administration of this Plan.
(d) All decisions, interpretations and other actions of the
Administrator shall be final and binding on all Participants and
all persons deriving their rights from a Participant. No member of
the Administrator or the Board shall be liable for any action that
he or she has taken or failed to take in good faith with respect
to this Plan or any Corresponding Securities; nor shall the
Company, a Hedging Entity, or an Affiliated Entity be liable for
any affirmative action or forbearance taken in good faith, with
respect to the Underlying Securities.
4. Participant Elections.
(a) Before the commencement of each Earning Period, the Administrator
may permit an Employee to elect to become a Participant in the
Plan and thereby be allowed to defer compensation into this Plan
in lieu of all or a specified portion of salary and/or bonuses
relating to such Earning Period, contingent upon satisfaction of
the conditions for receiving any such salary and/or bonuses and
subject to the limitations stated herein. An Employee may make no
more than one (1) irrevocable election under this Section 4(a)
with respect to any Earning Period. The Administrator shall
designate
election dates as it deems appropriate but in any event no later
than December 31 and June 30 of each year. The election must be
submitted to the Administrator in writing on the form provided by
the Company. Each Participant shall agree with respect to his or
her election to timely furnish to his or her employer all amounts,
including but not limited to withholding under the Federal
Insurance Contribution Act, required to be withheld by the
employer at the time compensation is deferred into this Plan.
(b) At the sole discretion of the Administrator, the Administrator may
permit, before the beginning of the Earning Period in which the
redemption of Corresponding Securities would otherwise occur, a
Participant to elect to extend the Expiration Date for such
Corresponding Securities by three years. An Employee may make no
more than one (1) irrevocable election under this Section 4(b)
with respect to any Earning Period.
(c) A Participant may elect, before the commencement of each Earning
Period, in lieu of cash payment for redeemed Corresponding
Securities and any Earn-out Payments related to redeemed
Corresponding Securities attributable to such Earning Period, to
have such amounts remain in a Participant's Account and made
available for future Earning Periods. An Employee may make no more
than one (1) irrevocable election under this Section 4(c) with
respect to any Earning Period.
(d) A Participant may elect, before the commencement of each Earning
Period, in lieu of cash payment of Dividend Equivalents or
Interest Equivalents attributable to such Earning Period, to have
such amounts remain in a Participant's
Account and made available for future Earning Periods. An Employee
may make no more than one (1) irrevocable election under this
Section 4(d) with respect to any Earning Period.
(e) A Participant may designate, subject to terms and conditions
prescribed by the Administrator pursuant to Section 3(b)(ii), the
Corresponding Securities to which he or she elects to allocate
amounts in his or her account and the amount of such allocation. A
Participant's selection of Corresponding Securities under this
Section 4(e) shall be made not later than 30 days after the date
of the notice given by the Administrator to the Participant of the
stock, options, warrants, debt, or other security (or combination
thereof) of another corporation or partnership which the
Participant may select as Corresponding Securities.
(f) On each December 1 (or, if December 1 is not a business day, on
the first business day immediately following December 1) before
the Expiration Date for Corresponding Securities that are Publicly
Traded and that have not been sold by the Hedging Entity or the
Affiliated Entity, a Participant may request that the Redemption
Value of all or some of such Corresponding Securities be credited
to the Participant's Account (a "Redemption Request"). A
Participant shall make a Redemption Request by delivering to the
Administrator on December 1 (or, if December 1 is not a business
day, on the first business day immediately following December 1) a
written request designating the number of shares and the issuer of
the Corresponding Securities with respect to which the Redemption
Request is made. If, and only if, on the seventh
calendar day after the date the Redemption Request is delivered to
the Administrator the Hedging Entity owns a number of shares of
Underlying Securities that (i) are Publicly Traded, (ii) the
Hedging Entity is entitled to sell without contractual, statutory,
or regulatory restrictions and (iii) equals or exceeds the
aggregate number of shares of Corresponding Securities in all
Participant's Accounts, shall the Redemption Value of those
Corresponding Securities be credited to the Participant's Account.
A Participant may make a Redemption Request only on December 1
(or, if December 1 is not a business day, on the first business
day immediately following December 1).
5. Establishment and Maintenance of Accounts; Annual Reports.
(a) An Account shall be established for each Participant reflecting:
(i) all amounts credited with respect to elections made
pursuant to Section 4(a) through (d);
(ii) all amounts credited with respect to a Redemption
Request;
(iii) all cash distributions pursuant to Section 7; and
(iv) all selections of Corresponding Securities.
The initial Corresponding Securities shall be the same mix of
equity or debt as the Underlying Securities actually purchased in
conjunction with the investment transaction by the Hedging Entity,
and/or if applicable the Affiliated Entity. If the Hedging Entity
or an Affiliated Entity obtained Underlying Securities before the
event giving rise to the Salary Election or Bonus Election, and
holds such Underlying Securities at the date of the designation,
and if the Administrator determines to allow the
designation of Corresponding Securities under the terms of this
Plan, the original stated cost for those Underlying Securities
shall be the initial stated acquisition price for the
Corresponding Securities.
(b) The initial Corresponding Securities designated in an Account
shall be appropriately adjusted for stock splits, stock dividends,
conversions, exchanges, combinations, conversion price
adjustments, recapitalizations, restructurings and refinancings or
other similar changes occurring with respect to the Corresponding
Securities during the Deferral Period; provided, however, that
when any such change extends the final date of maturity of debt
securities, then such corresponding change shall be made to the
Corresponding Securities. During the applicable Deferral Period, a
Participant's Account shall be credited with the Dividend
Equivalents and Interest Equivalents no less frequently than
semi-annually. Earn-out Payments will be credited to a
Participant's Account upon receipt of such payments by the Hedging
Entity, or if applicable Affiliated Entity.
(c) Upon reasonable notice to the Administrator, a Participant shall
have the right to examine his or her Account records.
(d) A Participant shall receive an annual statement setting forth the
balance of his or her Account at the end of each calendar year,
and all additions to or distributions from his or her Account
during the calendar year. The statement required by this
Section 5(d) shall be delivered to a Participant by March 31 of
the following calendar year.
6. Corresponding Securities Redemptions.
(a) Except as provided in Section 4(b) or Section 6(b), upon the
earliest of:
(i) the date when the Hedging Entity, or if applicable
Affiliated Entity, participates as a seller in an initial
public offering of Underlying Securities (to the extent
such securities are sold), or if the Hedging Entity, or if
applicable Affiliated Entity, does not so participate, then
the actual date of sale of the Underlying Securities in
compliance with Rule 144 under the Act, or otherwise;
(ii) the date when the Hedging Entity, or if applicable
Affiliated Entity, receives cash in connection with any
acquisition, reorganization or merger of the issuer of the
Underlying Securities; or
(iii) the Expiration Date; the related Corresponding Securities
shall be redeemed.
(b) Notwithstanding Section 6(a), all Corresponding Securities
designated in the Account of a Participant and not yet redeemed
shall be redeemed (at the initial stated acquisition price of the
Corresponding Securities, together, if applicable, with any
Dividend Equivalents or Interest Equivalents credited thereto)
should a Participant cease to be an Employee for any reason.
7. Cash Distributions.
(a) Except as provided in Sections 4(c), 4(d), and 7(c), required cash
distributions from this Plan shall be made to a Participant within
45 days of:
(i) in the case of redemption of Corresponding Securities
pursuant to Section 6, the date on which such redemption
occurs;
(ii) in the case of Earn-out Payments, the date on which the
Earn-out Payments are received by the Hedging Entity, or if
applicable the Affiliated Entity; or
(iii) in the case of Dividend Equivalents and Interest
Equivalents, the ending date of the semi-annual period in
which such Dividend Equivalents and Interest Equivalents
are credited to a Participant's Account.
(b) A Participant whose Corresponding Securities are redeemed by
reason of occurrence of the Expiration Date shall receive only the
Redemption Value; such Participant shall no longer be treated as a
Participant with respect to such Corresponding Securities, and no
future payments shall be made, nor shall any right exist to any
future payments, including but not limited to Dividend
Equivalents, Interest Equivalents, or Earn-out Payments relating
to such redeemed Corresponding Securities.
(c) A Participant whose Corresponding Securities are redeemed by
reason of termination of employment shall receive only the
Redemption Value; such Participant shall no longer be treated as a
Participant with respect to such Corresponding Securities, and no
future payments shall be made, nor shall any rights exist to any
future payments, including but not limited to Dividend
Equivalents, Interest Equivalents, or Earn-out Payments received
after termination of employment and relating to such redeemed
Corresponding Securities. Payment for redemption of Corresponding
Securities by reason of termination of employment shall be made:
(i) immediately in the case of employment termination of any
Employee with a written contract for a definite period,
employment termination by the employer, or termination by
an Employee who has given at least 72 hours previous notice
of his or her intention to quit; or
(ii) within 72 hours in the case of an Employee without a
written contract for a definite period who quits.
(d) All cash payments shall be subject to applicable withholding
taxes, deductions, garnishments, or liens.
8. Beneficiaries.
A Participant may file with the Administrator a written designation of
one or more persons as the Beneficiary(ies) who shall be entitled to
receive the amount, if any, payable under this Plan upon a Participant's
death. A Participant may, from time to time, file a new beneficiary
designation, or revoke or change an existing beneficiary designation
without the consent of any prior beneficiary, by filing a new designation
with the Administrator (except in the case of the prior Beneficiary being
the spouse with the new Beneficiary being other than the spouse, then
such spouse must give written consent). If no beneficiary has been
designated at the time of a Participant's death, or no such designated
Beneficiary survives a Participant, all payments made under this Plan
upon death shall be made to a Participant's estate.
9. Amendment, Suspension or Termination.
The Board may amend, suspend or terminate this Plan at any time and for
any reason; provided, however, that no such amendment shall adversely
affect the rights of a Participant or Beneficiary with respect to amounts
credited to any Account before such amendment. In the event of a
suspension or termination of this Plan, the undesignated Account balance
shall be paid out to a Participant within 30 days. All Corresponding
Securities in the Account at the date of suspension or termination of
this Plan will continue to be administered in accordance with the
provisions of this Plan.
10. Miscellaneous.
(a) The right of a Participant or Beneficiary to receive payments from
this Plan shall be an unsecured claim against the general assets
of the Company. The Company's contingent promise to pay the
Redemption Value of any Corresponding Securities in an Account
shall be a contractual obligation that is not evidenced by notes
or secured in any way. In particular, the Company is under no
obligation to retain or dispose of any Underlying Securities. This
Plan does not confer any shareholder or stockholder rights status
to a Participant, nor is the Administrator, the Hedging Entity or
any Affiliated Entity obligated or required to deliver, provide,
or make available for inspection any documents (financial or
otherwise) provided to it by the issuer of the Underlying
Securities. In addition, this Plan does not give a Participant any
rights whatsoever with respect to shares of the common stock of
the Company, the Hedging Entity or any Affiliated Entity, or limit
in any way the Company's right to terminate a Participant's
employment at any time, or create rights for a Participant to hold
or retain a
particular position or to receive a particular rate of
remuneration. The Company makes no representation expressed or
implied as to the application and effect of applicable tax laws or
welfare benefits relating to Corresponding Securities, salary,
bonuses, redemptions or payments. A Participant is encouraged to
seek advice from his or her tax specialist.
(b) No right under this Plan shall be transferable or assignable by a
Participant by operation of law or otherwise, except by will or
the laws of descent and distribution.
(c) This Plan shall be governed and construed in accordance with the
laws of the State of California.
11. Effective Date. This Plan shall be effective on the date adopted by the
Board.
Adopted this 18th day of December 1992
Berkeley (USA) Holdings Limited
/s/ Arthur I. Trueger
___________________________________
Sole Director
Amended as of the 15th Day of November, 1999
and as of the 16th Day of December, 1999
Berkeley (USA) Holdings Limited
/s/ Arthur I. Trueger
___________________________________
Sole Director