UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 10-K/A
(Amendment No. 1)
(Mark One)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2009
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission file number 0-21874
Berkeley Technology Limited
(Exact name of registrant as specified in its charter)
______________________
Jersey, Channel Islands Not applicable
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
One Castle Street
St. Helier, Jersey JE2 3RT
Channel Islands
(Address of principal executive offices, including zip code)
011 44 (1534) 607700
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Title of each class
American Depositary Shares, each representing
ten Ordinary Shares of $0.05 par value per share
Ordinary Shares of $0.05 par value per share *
*Not for trading, but only in connection with the registration of American
Depositary Shares, pursuant to the requirements of the Securities and Exchange
Commission.
Indicate by check mark if the registrant is a well-known seasoned issuer,
as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
If this report is an annual report or transition report, indicate by
check mark if the registrant is not required to file reports pursuant to Section
13 or Section 15(d) of the Act. Yes [ ] No [X]
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant has submitted electronically
and posted on its corporate Web site, if any, every Interactive Data File
required to be submitted and posted pursuant to Rule 405 of Regulation S-T (ss.
232.405 of this chapter) during the preceding 12 months (or for such shorter
period that the registrant was required to submit and post such files). Yes [ ]
No [X]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K (ss.229.405 of this chapter) is not contained herein, and
will not be contained, to the best of the registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [X]
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer," "accelerated filer"
and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [ ]
Smaller reporting company [X] (Do not check if a smaller
reporting company)
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Act). Yes [ ] No [X]
The aggregate market value of the voting stock held by non-affiliates of the
registrant, based on the closing sale price of the Ordinary Shares on June 30,
2009 as reported on the London Stock Exchange (using an exchange rate of
(pound)1.00 = $1.65) was $2,086,326. Ordinary Shares held by each current
executive officer and director and by each person who is known by the registrant
to own 10% or more of the outstanding Ordinary Shares have been excluded from
this computation in that such persons may be deemed to be affiliates of the
registrant. This determination is not necessarily conclusive that these persons
are affiliates of the registrant.
As of March 31, 2010, the registrant had outstanding 64,439,073 Ordinary
Shares, $0.05 par value per share.
DOCUMENTS INCORPORATED BY REFERENCE
None.
EXPLANATORY NOTE
The purpose of this Annual Report on Form 10-K/A is to amend Part III,
Items 10 through 14 of our annual Report on Form 10-K for the fiscal year ended
December 31, 2009, which was filed with the Securities and Exchange Commission
(the "SEC") on March 31, 2010 (the "2009 10-K"), to include information
previously omitted from the 2009 10-K in reliance on General Instruction G to
Form 10-K, which provides that registrants may incorporate by reference certain
information from a definitive proxy statement filed with the SEC within 120 days
after the end of the fiscal year. The Company's definitive proxy statement
therefore will not be filed before April 30, 2010 (i.e., within 120 days after
the end of the Company's 2009 fiscal year) pursuant to Regulation 14A. The
reference on the cover of the Annual Report on Form 10-K to the incorporation by
reference of the registrant's definitive proxy statement into Part III of the
Annual Report is hereby deleted. These amendments do not affect consolidated net
income, total assets, liabilities or stockholder's equity.
In addition, as required by Rule 12b-15 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), new certifications by our
principal executive officer and principal financial officer are filed as
exhibits to this Annual Report on Form 10-K/A under Item 15 of Part IV hereof.
Except as stated herein, this Form 10-K/A does not reflect events
occurring after the filing of the Form 10-K on March 31, 2010 and no attempt has
been made in this Annual Report on Form 10-K/A to modify or update other
disclosures as presented in the 2009 10-K. Accordingly, this Form 10-K/A should
be read in conjunction with our filings with the SEC subsequent to the filing of
the Form 10-K.
TABLE OF CONTENTS
PART III
Item 10. Directors and Executive Officers of the Registrant............................................ 1
Item 11. Executive Compensation........................................................................ 4
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters......................................................................... 7
Item 13. Certain Relationships and Related Transactions................................................ 9
Item 14. Principal Accountant Fees and Services........................................................ 9
PART IV
Item 15. Exhibits and Financial Statement Schedules ................................................... 10
Signatures ................................................................................................ 14
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Our executive officers are as follows:
Arthur I. Trueger, Executive Chairman and Principal Financial Officer: Mr.
Trueger, age 61, is the founder and a principal shareholder of Berkeley
Technology Limited. He has worked for us for more than 30 years and holds A.B.,
M.A. and J.D. degrees from the University of California.
BOARD OF DIRECTORS AND COMMITTEES
Biographical information about each director continuing in office is
provided below:
Arthur I. Trueger Mr. Trueger, age 61, is the founder and a principal
Executive Chairman shareholder of Berkeley Technology Limited. He has worked
for us for more than 30 years and holds A.B., M.A. and J.D.
degrees from the University of California.
The Viscount Lord Trenchard, age 59, has been a non-executive director
Trenchard since August 1999. Lord Trenchard was appointed a Managing
Director, Mizuho International plc in 2007, and became a
Director of Bache Global Series also in 2007. Previously,
Lord Trenchard was a Senior Adviser to Prudential Financial,
Inc., a provider of international private client wealth
management services, from 2002 to 2008. He was a director of
Robert Fleming and Co. Limited, or one of its principal
subsidiaries, from 1996 to 2000, where he was also head of
Japanese Investment Banking. He was a director of Kleinwort
Benson Limited from 1986 to 1996, whose Tokyo office he
managed for many years. Lord Trenchard is a member of the
Audit and Business Development Committees. Subject to
re-election, Lord Trenchard will be required to retire by
rotation again at the Annual General Meeting in 2010,
provided that no additional directors are appointed, or
existing directors resign, before that time.
Victor A. Hebert Mr. Hebert, age 72, has been a non-executive director since
the Company's incorporation in January 1985 and Deputy
Chairman since February 1996. In October 2008, Mr. Hebert
joined Burrill & Company as Managing Director, Chief
Administrative Officer and Chief Legal Officer. Burrill &
Company, based in San Francisco, is a global leader in life
sciences with principal activities in venture capital,
private equity, merchant banking and media. Previously, Mr.
Hebert practiced law with Heller Ehrman LLP since 1962. Mr.
Hebert is a member of the Compensation Committee. Subject to
re-election, Mr. Hebert will be required to retire by
rotation again at the Annual General Meeting in 2011,
provided that no additional directors are appointed, or
existing directors resign, before that time.
Harold E. Hughes Mr. Hughes, age 64, has been a non-executive director since
January 1987. He has been Chief Executive Officer of Rambus,
Inc., a chip-semiconductor interface supplier, since January
2005, and a director of Rambus since June 2003. Previously,
he was Chairman of Pandesic LLC, an eCommerce software
supplier owned jointly by Intel Corporation and SAP, from
1997 to 2000. Prior to Pandesic, Mr. Hughes was employed by
Intel Corporation for 23 years, during which time he held a
number of positions in financial and operational management.
He previously served on the boards of Xilinx, Inc. and
REMEC, Inc., having resigned those board seats in 2006 and
2005,
1
respectively. Mr. Hughes is a member of the Audit,
Business Development and Compensation Committees. Subject to
re-election, Mr. Hughes will be required to retire by
rotation again at the Annual General Meeting in 2012,
provided that no additional directors are appointed, or
existing directors resign, before that time.
The above retirement dates assume that no additional directors are
appointed, or existing directors resign, during the period. Retiring directors
are eligible for re-election. We believe that each Director's experience,
qualifications, attributes and skills, together with his long service, makes him
uniquely qualified to serve as a director of the Company.
Meetings of the Board
Our Board of Directors held four meetings during 2009. The Board has
three committees: Audit, Compensation and Business Development. The Audit
Committee held four meetings during 2009, and there were no meetings held by the
Compensation Committee and the Business Development Committee. Our Board
administers its oversight function, both through the entire Board, and
separately through its Committees, in particular through the Audit Committee.
Both the board as a whole and the Audit Committee may examine credit risk,
liquidity risk and operational risk, among other risks, as these apply to our
Company. Director attendance at all Board and committee meetings was 100% during
2009.
Committees of the Board
Audit Committee
Members: Harold E. Hughes (Chairman), The Viscount Trenchard
Our Board of Directors has adopted a written charter for the Audit
Committee, which is attached to this Proxy Statement as Appendix A (as amended
and restated on May 8, 2008). The primary functions of the Audit Committee are
to assist the Board of Directors in fulfilling its oversight responsibilities by
reviewing the adequacy of (i) the financial reporting process (including
reviewing the selection, application and disclosure of critical accounting
policies), (ii) financial information that will be provided to shareholders and
others, (iii) the systems of internal financial controls that management and the
Board have established, and (iv) our audit process and to consider issues raised
by our independent auditors in the U.K. and by our independent registered public
accounting firm in the U.S. In addition, the Audit Committee is responsible for
considering and recommending the appointment of, and reviewing fee arrangements
with, our independent auditors in the U.K. and our independent registered public
accounting firm in the U.S. During 2009, the Audit Committee met four times. The
functions of our Audit Committee and its activities during 2009 are further
described in the "Report of the Audit Committee of the Board of Directors"
below.
Compensation Committee
Members: Victor A. Hebert (Chairman), Harold E. Hughes
The Compensation Committee approves all elements of compensation for
the Executive Chairman, including bonuses, other than grants of share options.
The Compensation Committee recommends all grants of share options for the
Executive Chairman, executive officers and employees to the Trustees of The
London Pacific Group 1990 Employee Share Option Trust. Our compensation policies
or practices for all employees are reviewed by our compensation committee or by
the board as a whole. We believe that our compensation policies, our system of
incentives, and our internal controls are not likely to lead to excessive or
inappropriate risk taking by employees. We did not pay any fees to consultants
related to Director or Executive compensation in 2009. During 2009, the
Compensation Committee did not hold any meetings.
2
Business Development Committee
Members: Harold E. Hughes, The Viscount Trenchard
The Business Development Committee was established on March 31, 2001
for the purpose of dealing generally with all aspects of new business areas,
including expanding existing business internationally. Formal committee meetings
are not generally held, as individual committee members undertake specific
responsibilities for areas of new business development. During 2009, the
Business Development Committee did not hold any meetings.
Nomination Committee
Due to the small size of the Board, it is considered unnecessary for
there to be a specific Nomination Committee and the whole Board acts in this
capacity as and when required. The Board of Directors is comprised of four
members (three of whom are non-executive directors).
The Board of Directors meets quarterly and any nominations arising
would normally be considered at those quarterly meetings. There is no written
charter for the Board in relation to nominations and one is not considered
necessary due to the infrequency of new Board appointments. If and when Board
vacancies arise, the Board would consider applicants from a wide range of
sources including recommendations from any existing director or officer. The
Company may also use a third-party search firm depending upon the circumstances
at the time of the vacancy. While there are no minimum qualifications as such
for nominees, the Board would look for candidates with extensive business
experience, outstanding qualifications and useful attributes and skills relative
to the requirements of the Company at the time of the nomination. Diversity may
be considered in nominating directors. The Board does not accept unsolicited
shareholder recommendations due to the small size of the Board, which is
considered appropriate for the Company, and the infrequency of new Board
appointments.
No nominations for director were received for consideration during 2009
or 2010 to date.
OTHER INFORMATION ABOUT DIRECTORS AND EXECUTIVE OFFICERS
Related Person Transactions
There were no related person transactions in 2009.
The Board of Directors reviews all related person transactions, or
potential related person transactions, for ratification, revision or
termination.
Combined Positions
Our CEO and Board Chair positions are combined and have historically
been so, as Mr. Trueger was the founding Director and Chairman of the Company.
We do not have a lead independent director.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 and related
regulations require our directors, executive officers, and anyone holding more
than 10% of the Company's Ordinary Shares to report their initial ownership of
the Company's Ordinary Shares and any changes in that ownership to the
Securities and Exchange Commission ("SEC"). We are required to disclose in this
Proxy Statement the failure of any reporting person to file these reports when
due. To our knowledge, based solely on our review of copies of such reports
received by us, we believe that during 2009, all reporting persons of the
Company satisfied these filing requirements.
3
CODE OF ETHICS
On November 12, 2003, the Board of Directors adopted a Code of Ethics
(the "Code") applicable to the Company's Chief Executive Officer, Chief
Financial Officer, Controller, all other officers of the Company, or any other
person serving in an equivalent position. This Code embodies our commitment to
conduct business in accordance with the highest ethical standards and applicable
laws, rules and regulations. Our Code was amended and restated in December 2007
and this amended and restated Code was filed as Exhibit 14.1 to our Form 10-K
for the year ended December 31, 2007, filed with the SEC on March 31, 2008.
Item 11. EXECUTIVE COMPENSATION
Directors' Compensation
Annual Compensation
Each director receives a base annual fee of $3,750, except for the
Executive Chairman who, effective June 30, 2001, no longer receives this fee.
The Deputy Chairman receives an additional annual fee of $5,000. Each director
on the Audit Committee and Compensation Committee receives an additional annual
fee of $3,750, and each director on the Business Development Committee receives
an additional annual fee of $5,000. Lord Trenchard receives an additional annual
fee of $10,000 for administrative duties performed for the Company in Jersey.
Share Option Plan
Under The London Pacific Group 1990 Employee Share Option Trust, a
non-executive director may be granted options to purchase our Ordinary Shares,
generally exercisable in four equal annual installments beginning one year from
the date of grant. Options expire seven or ten years from the date of grant.
Until further notice, new option grants will have an exercise price equal to the
net book value of the shares as of the end of the previous quarter. On August
20, 2008, each non-executive director was granted 50,000 options with an
exercise price of $0.30, the net book value of the shares as of June 30, 2008,
and vesting over four years. No new options were granted in 2009.
The Executive Chairman makes recommendations to the Trustees of The
London Pacific Group 1990 Employee Share Option Trust in relation to such grants
to the non-executive directors.
Director Summary Compensation Table for 2009
Non-Equity Nonqualified
Fees Incentive Deferred
Earned or Plan Compen- All Other
Paid in Stock Option Compen- sation Compen-
Name Cash Awards Awards sation Earnings sation(1) Total
$ $ $ # $ $ $
- ----------------------------------------------------------------------------------------------------------------
Harold E. Hughes 16,250 0 0 0 0 0 16,250
- ----------------------------------------------------------------------------------------------------------------
Victor A. Hebert 12,500 0 0 0 0 0 12,500
- ----------------------------------------------------------------------------------------------------------------
Viscount Trenchard 12,500 0 0 0 0 10,000 22,500
- ----------------------------------------------------------------------------------------------------------------
<FN>
(1) Amount reflects an additional annual fee of $10,000 for administrative
duties performed for the Company in Jersey.
</FN>
4
EXECUTIVE COMPENSATION
Executive Compensation Components
Base Salary and Annual Incentive Compensation
For 2009, our executive officers received an annual salary, but no
bonuses related to the prior year were paid, and no bonuses will be paid
relating to 2009, due to the Company's net operating losses for 2009. In
addition, the Company is continuing to conserve cash in light of its efforts to
develop its venture capital consulting business. Our compensation policies or
practices for all employees are reviewed by our compensation committee or by the
board as a whole. We believe that our system of incentives and internal controls
are not likely to lead to excessive or inappropriate risk taking by employees.
For the last seven (7) years, since 2003, Mr. Trueger has not received
any directors' fees, salary increases, bonuses, or stock options, only an annual
salary of $300,000. For 2010, due to several factors including Mr. Trueger
assuming responsibility as Principal Financial Officer, his annual salary was
increased to $350,000, and he was awarded a one-time incentive payment of
$50,000. On August 12, 2008, the Company gave notice to Mr. Whitehead, the
Company's former Chief Financial Officer, that his employment agreement would
end on June 30, 2009. Reference is made to Exhibit 10.3.1 to the Company's
Form 10-K for the year ended December 31, 2000 for a copy of Mr. Whitehead's
employment agreement and to Mr. Whitehead's salary waiver described below in
"Potential Payments upon Termination or Change in Control." In connection with
the notice to end his employment agreement referenced above, Mr. Whitehead gave
notice to the Company that he had rescinded his salary waiver. Therefore, Mr.
Whitehead's annual salary increased from (pound)150,000 to (pound)500,000 for
the period from July 1, 2008 through June 30, 2009.
Long-term Incentive Plan
Share options may be granted to the Executive Chairman under The London
Pacific Group 1990 Employee Share Option Trust. The Compensation Committee of
the Board of Directors considers the responsibilities and performance of the
Executive Chairman and the performance of the Group when determining the number
of options to be recommended to the Trustees of The London Pacific Group 1990
Employee Share Option Trust. The Trust may grant share options to other officers
and employees, following recommendations from the Executive Chairman to the
Compensation Committee, which, if concurring, makes recommendations to the
trustees of the Trust. The objectives of this plan include retaining the best
personnel and providing for additional performance incentives.
Generally, option grants are exercisable in four equal installments
beginning one year from the date of the grant, subject to employment
continuation, and expire seven or ten years from the date of the grant.
There were no option exercises during 2009 under The London Pacific
Group 1990 Employee Share Option Trust by the named executive officers. The
value of the share options held by them as of December 31, 2009 was nil as all
vested and unvested share options were not in-the-money at that date.
Pension Plan
The Group provided a defined contribution plan for its former Chief
Financial Officer. This plan was established in 2000, with $27,000 contributed
during the year ended December 31, 2009.
Deferred Compensation Plan
The Company currently does not offer a deferred compensation plan for
executive officers or employees.
5
Perquisites and Other Executive Benefits
The Company currently does not offer any perquisites or other executive
benefits to its executive officers.
Employment Contracts
Mr. Whitehead joined us in September 1990 as Chief Financial Officer.
The Company extended an employment letter to Mr. Whitehead. His employment is
terminable either by the Company on twelve (12) months written notice or by Mr.
Whitehead on six (6) months written notice. As discussed above, on August 12,
2008, the Company gave notice to Mr. Whitehead that his employment agreement
would end on June 30, 2009.
The Executive Chairman does not have a contract of service with the
Company.
SUMMARY COMPENSATION TABLE
The following table sets forth the cash and non-cash compensation paid
to our Executive Chairman and former Chief Financial Officer for the last two
fiscal years:
Non-
Equity Nonqualified
incentive Deferred
Plan Compen- All Other
Name and Stock Option Compen- sation Compen-
Principal Year Salary Bonus Awards Awards sation Earnings sation(1) Total
Position $ $ $ $ # $ $ $
- ------------------------------------------------------------------------------------------------------------------
Arthur I. 2009 300,000 0 0 0 0 0 0 300,000
Trueger, 2008 300,000 0 0 0 0 0 0 300,000
Executive Chairman
- ------------------------------------------------------------------------------------------------------------------
Ian K. 2009 372,917 0 0 0 0 0 34,117 407,034
Whitehead, 2008 581,083 0 0 0 0 0 64,781 645,864
Former CFO
- ------------------------------------------------------------------------------------------------------------------
<FN>
(1) Amounts represent pension plan contributions for 2008 and 2009, as well as
$6,798 and $7,267 for life insurance and additional long-term disability
insurance benefits in 2008 and 2009, respectively, for Mr. Whitehead.
</FN>
6
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END 2009
Option Awards Stock Awards
------------------------------------------------------------ ----------------------------------------------
Equity
Incentive
Equity Plan
Incentive Awards:
Equity Plan Market or
Incentive Awards: Payout
Number Number of Plan Number of Value of
of Securities Awards: Market Unearned Unearned
Securities Underlying Number of Number of Value of Shares, Shares,
Underlying Unexer- Securities Shares or Shares or Units or Units or
Unexer- cised Underlying Units of Units of Other Other
cised Options: Unexercised Option Option Stock Stock That Rights Rights
Options: Unexer- Unearned Exercise Expiration That Have Have Not That Have That Have
Name Exercisable cisable Options Price Date Not Vested Vested Not Vested Not Vested
# # # $ # $ # $
- -------------------------------------------------------------------------------------------------------------------------
Arthur I.
Trueger 2,000,000 0 0 $5.40 May 17, 2011 0 0 0 0
- -------------------------------------------------------------------------------------------------------------------------
POTENTIAL PAYMENTS UPON TERMINATION OR change in CONTROL
As of December 31, 2009, there is no payment due as there are no
employment contracts with the Company.
Mr. Trueger does not have a contract of service with the Company.
Under a December 31, 2009 termination scenario, all vested and unvested
share options held by Mr. Trueger were out-of-the-money on that date, and thus
no share options would have been exercised and no value would have been received
by him.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
The information regarding security ownership of certain beneficial owners
and management is incorporated by reference to the section entitled "Information
Regarding Beneficial Ownership of Principal Shareholders, Directors and
Executive Officers" in our Proxy Statement.
The following table is a summary of selected information for our equity
compensation plans as of December 31, 2009.
Number of Shares
Number of Shares to Weighted-Average Remaining Available for
be Issued Upon Exercise Exercise Price of Future Issuance Under
of Outstanding Options, Outstanding Options, Equity Compensation
Warrants and Rights Warrants and Rights Plans
--------------------------------------------------------------------------------------------
Equity compensation plans
approved by shareholders............. 6,475,000 (1) $2.09 (1)
Equity compensation plans not
approved by shareholders............. - -
--------------- --------
Total................................... 6,475,000 $2.09
--------------- --------
--------------- --------
7
<FN>
(1) Our equity compensation plans do not contain a limit on the number of
options that may be granted to employees. However, the plans do not allow
for the issuance of previously authorized and unissued shares to meet the
obligations of the plans upon an employee option exercise. When an option is
granted, the trust that administers the plan borrows funds from the Company
or one of its subsidiaries and uses those funds to purchase the number of
shares underlying the option grant. The maximum loan allowed in any given
year is equal to 5% of consolidated net assets as of the end of the previous
fiscal year.
</FN>
Information regarding the features of the equity compensation plan not
approved by shareholders is incorporated by reference to Note 10 to the
Consolidated Financial Statements in Item 8 of this Form 10-K.
INFORMATION REGARDING BENEFICIAL OWNERSHIP OF PRINCIPAL
SHAREHOLDERS, DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information with respect to
beneficial ownership of Ordinary Shares as of March 31, 2010 for each person who
is known by us to own beneficially more than 5% of the Ordinary Shares
(including Ordinary Shares underlying ADRs), for directors and executive
officers named in the Summary Compensation Table on page 9 of this Proxy
Statement, and for all directors and executive officers as a group:
Amount and Nature of Ownership (1)
-----------------------------------------------------------------------------
Options Exercisable
Number of Within 60 Days of Total Shares Percent of
Ordinary March 31, 2010 (2) Beneficially Outstanding
Name Shares Owned Owned Ordinary Shares
(2)
- ------------------------------------------------------------------------------------------------------------------
Arthur I. Trueger 19,260,693 2,000,000 21,260,693 29.9%
650 California Street, Suite 2600
San Francisco, California 94108
- ------------------------------------------------------------------------------------------------------------------
The London Pacific Group 13,084,681 - 13,084,681 20.3%
1990 Employee Share
Option Trust (2) (3)
Whiteley Chambers, Don Street
St. Helier, Jersey JE4 9WG
Channel Islands
- ------------------------------------------------------------------------------------------------------------------
Victor A. Hebert (4) 45,000 70,000 115,000 *
- ------------------------------------------------------------------------------------------------------------------
Harold E. Hughes - 90,000 90,000 *
- ------------------------------------------------------------------------------------------------------------------
The Viscount Trenchard - 70,000 70,000 *
All directors and executive 19,305,693 2,230,000 21,535,693 30.0%
officers as a group (2)
- ------------------------------------------------------------------------------------------------------------------
Peter Gyllenhammar (5) 5,175,000 - 5,175,000 8.0%
Grev Turegatan 27
11438 Stockholm, Sweden
- ------------------------------------------------------------------------------------------------------------------
SC Fundamental LLC (6) 9,964,210 - 9,964,210 15.5%
747 Third Avenue, 27th Floor
New York, New York 10017
- ------------------------------------------------------------------------------------------------------------------
* Amount represents less than one percent.
<FN>
(1) Except as described in footnote (4) below, each director and executive
officer has sole voting and investment power with respect to his shares.
8
(2) The shares underlying the 2,230,000 options exercisable are also included
in the 13,084,681 shares held by The London Pacific Group 1990 Employee
Share Option Trust. The Percentages of Outstanding Ordinary Shares reflect
ownership of shares owned and options vested or exercisable by May 30, 2010
which are in-the-money. If all options held by directors or executive
officers were to become in-the-money by May 30, 2010, Mr. Trueger would
hold 33.0%, and all directors and executive officers as a group would hold
33.4%.
(3) The Trustees of The London Pacific Group 1990 Employee Share Option Trust
are entitled to notice of, and to vote at the Meeting, with each share
entitling them to one vote. The Trust has waived its entitlement to
dividends on any shares held.
(4) The number of Ordinary Shares owned by Mr. Hebert includes 40,000 shares
held in a pension and profit sharing trust for the benefit of Mr. Hebert
over which he has shared voting and investment power.
(5) We were notified on January 7, 2008 that Bronsstadet AB and Union Discount
Company of London plc, companies wholly-owned by Mr. Peter Gyllenhammar,
had increased their combined holdings to 4,545,000 Ordinary Shares on
January 4, 2008. We were notified further on January 29, 2008 that the same
two companies wholly-owned by Mr. Peter Gyllenhammar, had increased their
combined holdings to 5,175,000 on January 25, 2008.
(6) We were notified on April 13, 2010 that SC Fundamental LLC holds a portion
as Ordinary Shares and a portion in ADR form.
</FN>
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is incorporated by reference to
the section entitled "Other Information About Directors and Executive Officers"
in our Proxy Statement.
Item 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Report of the Audit Committee of the Board of Directors
Management is responsible for the financial reporting process, the
preparation of consolidated financial statements in accordance with U.S.
generally accepted accounting principles, the system of internal controls, and
procedures designed to insure compliance with accounting standards and
applicable laws and regulations. The Company's independent auditors, BDO LLP in
the U.K., are responsible for auditing the financial statements in accordance
with International Standards on Auditing (UK and Ireland), and the Company's
independent registered public accounting firm, BDO Seidman, LLP in the U.S., are
responsible for auditing the financial statements in accordance with the
standards established by the PCAOB (United States). The Audit Committee's
responsibility is to monitor and review these processes and procedures. The
members of the Audit Committee are neither professionally engaged in the
practice of accounting or auditing. The Audit Committee relies, without
independent verification, on the information provided to them and on the
representations made by management that the financial statements have been
prepared with integrity and objectivity, and on the representations of
management and the opinions of BDO LLP and BDO Seidman, LLP that such financial
statements have been prepared in conformity with U.S. generally accepted
accounting principles.
The Audit Committee reviewed and discussed the Company's audited
financial statements for the year ended December 31, 2009 with the Company's
management and with the Company's independent registered public accounting firm,
BDO Seidman, LLP. The Audit Committee discussed with BDO Seidman, LLP the
matters required to be discussed under generally accepted auditing standards
(including Statements on Auditing Standards ("SAS") No. 61). In addition, the
Audit Committee has discussed with the independent auditors, BDO LLP and BDO
Seidman, LLP, the auditors' independence from management and the Company
(including the matters in the written disclosure required by PCAOB Rule 3526),
and considered the compatibility of non-audit services with the auditors'
independence. The Audit Committee considered and
9
believes that the performance of services related to "Audit-Related Fees" and
"Tax Fees" is compatible with maintaining the independence of BDO LLP and BDO
Seidman, LLP.
For the years ended December 31, 2009 and 2008, BDO LLP and BDO
Seidman, LLP billed or will bill the Company for the following fees:
2009 2008
Audit Fees $155,640 $156,967
Audit-Related Fees (1) $12,499 $12,078
Tax Fees (2) $8,004 $2,070
All Other Fees $0 $0
<FN>
(1) Related to the audits of our insurance regulatory reports. (2) Related to
tax compliance services.
</FN>
Based on the Audit Committee's review and discussions above, the Audit
Committee recommended to the Board of Directors that the Company's audited
financial statements be included in its Annual Report on Form 10-K for the year
ended December 31, 2009, for filing with the Securities and Exchange Commission,
and in its 2009 Annual Report to Shareholders.
The Audit Committee pre-approved all fees for audit and permissible
non-audit services performed by BDO LLP and BDO Seidman, LLP.
The Audit Committee has considered and concluded that the provision of
the non-audit services in the table above is compatible with maintaining the
independence of BDO LLP and BDO Seidman, LLP, and has pre-approved all such
fees.
AUDIT COMMITTEE
Harold E. Hughes (Chairman)
The Viscount Trenchard
PART IV
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following documents are filed as a part of this Form 10-K:
1. Exhibits:
The following exhibits of Berkeley Technology Limited and subsidiaries
are filed herewith or incorporated by reference as indicated below:
Exhibit
Number Description
- ------- -----------
3.(I).1 Memorandum and Articles of Association of Berkeley Technology
Limited, as amended and restated on April 18, 2000 (filed previously
as Exhibit 3.(I) to our Form 10-Q for the quarter ended June 30,
2000).
3.(I).2 Certificate of Incorporation on Change of Name dated June 12, 2003
(filed previously as Exhibit 3.(I).2 to our Form 10-K for the year
ended December 31, 2003).
10
<Page>
4.1 Specimen Ordinary Share certificate (filed previously as Exhibit 4.1
to our Form 10-K for the year ended December 31, 2000).
4.2 Form of Deposit Agreement dated September 25, 1992, as amended and
restated as of November 24, 1993, as further amended and restated as
of March 14, 2000, among us, The Bank of New York as Depositary, and
all Owners and Holders from time to time of American Depositary
Receipts issued thereunder (filed previously as Exhibit A to our
Registration Statement on Form F-6 (Registration No. 333-11658)
dated March 14, 2000).
4.3 Letter Agreement dated August 25, 1992 between The Bank of New York
and us covering the Basic Administration Charge relating to the
Deposit Agreement (shown above as Exhibit 4.2) (filed previously as
Exhibit 3.8 to our Post-Effective Amendment No. 2 to our
Registration Statement on Form 20-F/A dated August 31, 1993).
4.4 Form of Deposit Agreement as amended and restated as of June 24,
2002, among us, The Bank of New York as Depositary, and all Owners
and Holders from time to time of American Depositary Receipts issued
thereunder (filed previously as Exhibit 4.4 to our Form 10-Q for the
quarter ended June 30, 2002).
4.4.1 Form of Amendment Agreement to Deposit Agreement entered into
January 20, 2010 and effective February 19, 2010.
4.5 Warrant Agreement dated February 14, 2003 between us and the
Governor and Company of the Bank of Scotland relating to the Term
Loan and Guarantee Facility dated December 20, 2002 (filed
previously as Exhibit 4.5 to our Form 10-Q for the quarter ended
March 31, 2003).
4.6 Specimen Ordinary Share certificate, as amended on June 12, 2003
(filed previously as Exhibit 4.6 to our Form 10-K for the year ended
December 31, 2003).
10.1.1 Settlement dated February 16, 1990 among (1) us, (2) John Gerald
Patrick Wheeler and (3) Ian Walter Strang, constituting The London
Pacific Group 1990 Employee Share Option Trust (filed previously as
Exhibit 3.2 to our Post-Effective Amendment No. 2 to Registration
Statement on Form 20-F/A dated August 31, 1993).
10.1.2 Executed Instrument dated March 18, 1994 among (1) John Gerald
Patrick Wheeler, (2) Ian Walter Strang and (3) Richard John Pirouet,
relating to The London Pacific Group 1990 Employee Share Option
Trust (filed previously as Exhibit 3.2.1 to our Annual Report on
Form 20-F dated June 10, 1994).
10.1.3 Executed Instrument dated September 27, 1994 among (1) Ian Walter
Strang, (2) Richard John Pirouet and (3) Clive Aubrey Charles
Chaplin, relating to The London Pacific Group 1990 Employee Share
Option Trust (filed previously as Exhibit 3.2.2 to our Annual Report
on Form 20-F dated June 29, 1995).
10.1.4 Executed Instrument dated March 3, 1995 among (1) Ian Walter Strang,
(2) Richard John Pirouet and (3) Clive Aubrey Charles Chaplin,
relating to The London Pacific Group 1990 Employee Share Option
Trust (filed previously as Exhibit 3.2.3 to our Annual Report on
Form 20-F dated June 29, 1995).
10.1.5 Executed Instrument dated August 22, 1996 among (1) Richard John
Pirouet, (2) Clive Aubrey Charles Chaplin and (3) Ronald William
Green, relating to The London Pacific Group 1990 Employee Share
Option Trust (filed previously as Exhibit 3.2.4 to our Annual Report
on Form 20-F dated June 30, 1997).
11
10.1.6 Executed Instrument dated August 29, 1998 among (1) Richard John
Pirouet, (2) Clive Aubrey Charles Chaplin, (3) Ronald William Green
and (4) Victor Aloysius Hebert, relating to The London Pacific Group
1990 Employee Share Option Trust (filed previously as Exhibit 3.2.5
to our Annual Report on Form 20-F dated June 30, 1999).
10.1.7 Executed Instrument dated May 31, 2000 among (1) Richard John
Pirouet, (2) Clive Aubrey Charles Chaplin, (3) Ronald William Green
and (4) Victor Aloysius Hebert, relating to The London Pacific Group
1990 Employee Share Option Trust (filed previously as Exhibit 10.2.1
to our Form 10-Q for the quarter ended September 30, 2000).
10.1.8 Executed Instrument dated May 31, 2000 among (1) Richard John
Pirouet, (2) Clive Aubrey Charles Chaplin, (3) Ronald William Green,
(4) Victor Aloysius Hebert and (5) Christopher Byrne, relating to
The London Pacific Group 1990 Employee Share Option Trust (filed
previously as Exhibit 10.2.2 to our Form 10-Q for the quarter ended
September 30, 2000).
10.2.1(1) Agreement dated July 1, 1990 between us and Ian Kenneth
Whitehead (filed previously as Exhibit 10.3.1 to our Form 10-K for
the year ended December 31, 2000).
10.2.2(1) London Pacific Advisers Limited Retirement Scheme confirmation
dated December 5, 2000 for Ian Kenneth Whitehead (filed previously
as Exhibit 10.3.3 to our Form 10-K for the year ended December 31,
2001).
10.3.1 Settlement dated May 23, 1997 among BG Services Limited and A.L.O.T.
Trustee Limited establishing Agent Loyalty Opportunity Trust (filed
previously as Exhibit 10.4.1 to our Form 10-K for the year ended
December 31, 2001).
10.3.2 Executed Deed dated July 16, 1997 by A.L.O.T. Trustee Limited
relating to Agent Loyalty Opportunity Trust (filed previously as
Exhibit 10.4.2 to our Form 10-K for the year ended December 31,
2001).
10.3.3 Executed Deed dated August 13, 1997 by A.L.O.T. Trustee Limited
relating to Agent Loyalty Opportunity Trust (filed previously as
Exhibit 10.4.3 to our Form 10-K for the year ended December 31,
2001).
10.3.4 Executed Deed dated August 20, 1998 by A.L.O.T. Trustee Limited
relating to Agent Loyalty Opportunity Trust (filed previously as
Exhibit 10.4.4 to our Form 10-K for the year ended December 31,
2001).
10.3.5 Executed Deed of Amendment and Appointment dated December 11, 2001
among Berkeley International Capital Limited and A.L.O.T. Trustee
Limited relating to Agent Loyalty Opportunity Trust (filed
previously as Exhibit 10.4.5 to our Form 10-K for the year ended
December 31, 2001).
10.4 Asset Purchase Agreement dated March 7, 2003 between Berkeley
Capital Management ("BCM"), Berkeley (USA) Holdings Limited and
Berkeley Capital Management LLC relating to the sale of
substantially all of the assets and operations of BCM (filed
previously as Exhibit 10.5 to our Form 10-Q for the quarter ended
March 31, 2003).
10.5 Purchase Agreement, dated May 9, 2003, for the acquisition of London
Pacific Advisory Services, Inc. and London Pacific Securities, Inc.
by SunGard Business Systems Inc. (filed previously as Exhibit 10.6
to our Form 10-Q for the quarter ended June 30, 2003).
14.1 Code of Ethics as amended and restated as of December 2007.
21 Subsidiaries of the Company as of March 31, 2009.
12
31.1 Certification by the Company's Executive Chairman pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.2 Certification by the Company's Chief Financial Officer pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
32.1 Certification by the Company's Executive Chairman pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
32.2 Certification by the Company's Chief Financial Officer pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
__________
(1) Management contract or compensatory arrangement filed in response to
Item 15(a)(3) of the instructions to Form 10-K.
13
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
BERKELEY TECHNOLOGY LIMITED
(Registrant)
By /s/ Arthur I. Trueger
Date: April 30, 2010 Arthur I. Trueger
Executive Chairman
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
/s/ Arthur I. Trueger
Date: April 30, 2010 Arthur I. Trueger
Executive Chairman
(Principal Executive Officer)
/s/ Arthur I. Trueger
Date: April 30, 2010 Arthur I. Trueger
Principal Financial Officer
(Principal Financial and Accounting Officer)
14