As filed with the Securities and Exchange Commission on February 13, 2004
Registration Statement
No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BARCLAYS BANK PLC
(Exact Name of Registrant as Specified in Its Charter)
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England and Wales
(State or Other Jurisdiction of
Incorporation or Organization)
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13-4942190
(I.R.S. Employer
Identification No.)
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54 Lombard Street
London, England EC3P 3AH
+44 (0) 20 7699-5000
(Address, including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
BARCLAYS BANK PLC
U.S. SENIOR MANAGEMENT
DEFERRED COMPENSATION PLAN
(as effective February 10, 2004)
(Full Title of the Plan)
Michael Montgomery
Barclays Bank PLC
200 Park Avenue
New York, NY 10166
(212) 412-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
TABLE OF CONTENTS
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Offering Price
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Aggregate Offering
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Amount of
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Title of Securities to be Registered
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Amount to be Registered
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Per Share
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Price
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Registration Fee
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Deferred Compensation Obligations (1)
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$
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100,000,000
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(2)
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100%
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$
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100,000,000
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(2)
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$
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12,670
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(1)
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The Deferred Compensation Obligations registered herein are unsecured obligations of the Registrant to pay deferred
compensation in the future in accordance with the terms of the Barclays Bank PLC U.S. Senior Management Deferred
Compensation Plan, as effective February 10, 2004 (the “Plan”).
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(2)
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Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee, based on an estimated amount of $100,000,000 Deferred Compensation Obligations to
be offered under the plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of
Form S-8 and the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the “Securities Act”). In accordance with Rule 428 and the
requirements of Part I of the Form S-8, such documents are not being filed
with the SEC either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. Barclays Bank PLC (the “Registrant,” the “Company,” “we,”
“our,” “us”) will maintain a file of such documents in accordance with the
provisions of Rule 428. Upon request, the Registrant will furnish the
Securities and Exchange Commission (the “SEC”) or its staff a copy or copies
of all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant are incorporated herein
by reference and made a part hereof:
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(a)
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The Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2002; and
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(b)
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The Registrant’s Forms 6-K filed in 2003 on January 8, February 27, March 18, April 2 and
28, May 6 and 8, June 3 (twice), July 7, August 5, 7, and 29, October 9, 10, and 14,
November 7, and December 2 and 18 and in 2004 on January 9 and February 12.
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In addition, all documents the Registrant files with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended, subsequent to the date of this Registration Statement and
before the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered have been sold or that deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in any document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein, or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
Item 4.
DESCRIPTION OF SECURITIES
The Barclays Bank PLC U.S. Senior Management Deferred Compensation Plan,
as effective February 10, 2004 (the “Plan”) is a non-qualified, unfunded
incentive program. Under the Plan, each eligible employee who is a managing
director is provided the opportunity to make a deferral election with respect
to all or a portion of his or her salary and bonus in a given plan year.
Because the Plan is unfunded, the amounts deferred under the Plan will not
actually be invested in the investments selected by the participants. Rather,
the administrator will credit (or charge) to the participants’ deferral
accounts earnings (or losses) on such deferred amounts in an amount equal to
the actual rate of return or loss on the selected
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investments. The right of each participant in the Plan is that of a general,
unsecured creditor, and a participant’s interest in the Plan may not be sold, assigned, transferred,
pledged or otherwise encumbered.
Item 5.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Deferred Compensation Obligations issuable under
the Plan has been passed upon by Richard W. Knaub, Esq., Associate General
Counsel of the Company, who holds no common stock or options in the Company
and no ordinary shares, American Depositary Receipts, or options in Barclays
PLC, the Company’s parent.
Item 6.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 160 of the Registrant’s Articles of Association provides:
(a) Subject to the provisions of the statutes, but without prejudice to
any indemnity to which he or she may otherwise be entitled, every director,
other officer and auditor of the company and every former director, other
former officer and former auditor of the company shall be indemnified out of
the assets of the company against any liability, loss or expenditure incurred
by him or her in the actual or purported execution and/or discharge of his or
her duties and/or the exercise or purported exercise of his or her powers
and/or otherwise in relation to or in connection with his or her duties, powers
or office including (without prejudice to the foregoing) any liability incurred
by him or her in defending any proceedings, whether civil or criminal, which
relate to anything done or omitted to be done or alleged to have been done or
omitted to be done by him or her as a director, officer or auditor of the
company and in which judgment is given in his or her favour or in which he or
she is acquitted or which are otherwise disposed of without any finding or
admission of guilt or breach of duty on his or her part or incurred in
connection with any application in which relief is granted to him or her by the
court from liability in respect of any such act or omission or from liability
to pay any amount in respect of shares acquired by a nominee of the company.
(b) To the extent permitted by the statutes, the board may arrange and
maintain insurance cover at the cost of the company in respect of any
liability, loss or expenditure incurred by any director, other officer, or
auditor of the company in relation to anything done or alleged to have been
done or omitted to be done by him or her as a director, officer or auditor.”
The relevant provisions of the Statutes are Sections 310 and 727 of the
U.K. Companies Act 1985, as amended.
Section 310 provides:
(1) This section applies to any provision, whether contained in a
company’s articles or in any contract with the company or otherwise, for
exempting any officer of the company or any person (whether an officer or not)
employed by the company as auditor from, or indemnifying him against, any
liability which by virtue of any rule of law would otherwise attach to him in
respect of any negligence, default, breach of duty or breach of trust of which
he may be guilty in relation to the company.
(2) Except as provided by the following subsection, any such provision is
void.
(3) This section does not prevent a company-
(a) from purchasing and maintaining for any such officer or auditor
insurance against any such liability, or
(b) from indemnifying any such officer or auditor against any liability
incurred by him-
i. in defending any proceedings (whether civil or criminal) in which
judgment is given in his favour or he is acquitted, or
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ii. in connection with any application under section 144(3) or (4)
(acquisition of shares by innocent nominee) or section 727 (general power to
grant relief in case of honest and reasonable conduct) in which relief is
granted to him by the court.’
Section 727 provides:
(1) If in any proceedings for negligence, default, breach of duty or
breach of trust against an officer of a company or a person employed by a
company as auditor (whether he is or is not an officer of the company) it
appears to the court hearing the case that officer or person is or may be
liable in respect of the negligence, default, breach of duty or breach of
trust, but that he has acted honestly and reasonably, and that having regard to
all the circumstances of the case (including those connected with his
appointment) he ought fairly to be excused for the negligence, default, breach
of duty or breach of trust, that court may relieve him, either wholly or
partly, from his liability on such terms as it thinks fit.
(2) If any such officer or person as above-mentioned has reason to
apprehend that any claim will or might be made against him in respect of any
negligence, default, breach of duty or breach of trust, he may apply to the
court for relief; and the court on the application has the same power to
relieve him as under this section it would have had if it had been a court
before which proceedings against that person for negligence, default, breach of
duty or breach of trust had been brought.
(3) Where a case to which subsection (1) applies is being tried by a judge
with a jury, the judge, after hearing the evidence, may, if he is satisfied
that the defendant or defender ought in pursuance of that subsection to be
relieved either in whole or in part from the liability sought to be enforced
against him, withdraw the case in whole or in part from the jury and forthwith
direct judgment to be entered for the defendant or defender on such terms as to
costs or otherwise as the judge may think proper.”
Directors and officers of the Registrant may be indemnified by the
Registrant against directors’ and officers’ liability as permitted by Section
310 of the Companies Act.
The Registrant has obtained director’s and officer’s liability insurance
coverage which, subject to policy terms and limitations, includes coverage for
directors and officers of the Registrant and to reimburse the Registrant for
amounts paid to directors or officers of the Registrant by way of lawful
indemnity.
Item 7.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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Item 8.
EXHIBITS
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Exhibit
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Number
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Description
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4.1
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Barclays Bank PLC U.S. Senior Management Deferred Compensation Plan, as effective February 10, 2004
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5.1
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Opinion of Richard W. Knaub, Esq.
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23.1
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Consent of PricewaterhouseCoopers, independent auditors
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23.2
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Consent of Richard W. Knaub, Esq. (included in Exhibit 5.1 to this registration statement)
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24.1
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Power of Attorney (included on signature page to this Registration Statement)
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Item 9.
UNDERTAKINGS
The undersigned Registrant hereby undertakes:
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(a)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this
registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in this registration statement;
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(iii)
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To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
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provided
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however
, that paragraphs (a)(i) and (a)(ii) of this Item 9 do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration statement.
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(b)
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That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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(c)
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To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the
termination of the offering.
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(d)
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That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15 (d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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(e)
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That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to Item 6 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in London, England and in New York, New York (respectively), on
February 11 and 10 (respectively), 2004.
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BARCLAYS BANK PLC
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By:
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/s/ John Silvester Varley
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John Silvester Varley
Group Deputy Chief Executive
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By:
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/s/ Michael Montgomery
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Michael Montgomery
Authorized U.S. Representative
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Michael
Montgomery and ____________________, and each of them, with full power of
substitution and resubstitution and each with full power to act without the
other, his or her true and lawful attorney-in-fact and agent, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement and any related Registration Statement filed pursuant to Rule 462(b)
under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the Securities
and Exchange Commission or any state, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their, his or her substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
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Date: February 11, 2004
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By:
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/s/ Matthew William Barrett
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Matthew William Barrett
Group Chief Executive and Director
(Principal Executive Officer)
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Date: February 11, 2004
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By:
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/s/ Naguib Kheraj
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Naguib Kheraj
Group Finance Director and Director
(Principal Financial Officer)
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Date: February 11, 2004
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By:
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/s/ Colin Richard Walklin
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Colin Richard Walklin
Director of Group Finance
(Principal Accounting Officer)
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Date: February 11, 2004
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By:
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/s/ Sir Peter Middleton GCB
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Sir Peter Middleton GCB
Group Chairman and Director
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Date: February 11, 2004
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By:
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/s/ John Silvester Varley
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John Silvester Varley
Director
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Date: February 11, 2004
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By:
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/s/ Christopher John Lendrum
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Christopher John Lendrum
Director
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Date: February 11, 2004
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By:
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/s/ Roger William John Davis
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Roger William John Davis
Director
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Date: February 11, 2004
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By:
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/s/ Gary Andrew Hoffman
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Gary Andrew Hoffman
Director
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Date: February 11, 2004
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By:
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/s/ David Lawton Roberts
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David Lawton Roberts
Director
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Date: February 11, 2004
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By:
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/s/ Sir Brian Garton Jenkins GBE
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Sir Brian Garton Jenkins GBE
Director
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Date: February 11, 004
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By:
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/s/ Thomas David Guy Arculus
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Thomas David Guy Arculus
Director
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Date: February 11, 2004
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By:
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/s/ Hilary Mary Cropper CBE
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Hilary Mary Cropper CBE
Director
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Date: February 11, 2004
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By:
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/s/ Prof. Dame Sandra Dawson DBE
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Prof. Dame Sandra Dawson DBE
Director
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Date: February 11, 2004
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By:
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/s/ Sir Nigel Rudd DL
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Sir Nigel Rudd DL
Director
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Date: February 11, 2004
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By:
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/s/ Stephen George Russell
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Stephen George Russell
Director
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Date: February 11, 2004
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By:
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/s/ Dr. Jürgen Zech
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Dr. Jürgen Zech
Director
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Date: February 11, 2004
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By:
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/s/ Sir Richard Broadbent
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Sir Richard Broadbent
Director
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Date: February 10, 2004
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By:
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/s/ Michael Montgomery
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Michael Montgomery
Authorized U.S. Representative
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EXHIBIT INDEX
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Exhibit
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Number
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Description
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4.1
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Barclays Bank PLC U.S. Senior Management Deferred Compensation Plan, as effective February 10, 2004
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5.1
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Opinion of Richard W. Knaub, Esq.
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23.1
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Consent of PricewaterhouseCoopers, independent auditors
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23.2
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Consent of Richard W. Knaub, Esq. (included in Exhibit 5.1 to this registration statement)
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24.1
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Power of Attorney (included on signature page to this Registration Statement)
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Exhibit 4.1
Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
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Purpose
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Barclays Bank PLC, a public limited company organized under
the laws of England and Wales (the “
Company
”), wishes to
provide an arrangement to permit certain senior executives to
defer their compensation for retirement or other purposes and
to receive notional investment returns measured by highly
speculative investments. To further these objectives, the
Company hereby sets forth the Barclays Bank PLC Senior
Management Deferred Compensation Plan (the “
Plan
”), effective
as of February 10, 2004 (the “
Effective Date
”). Under this
Plan, the Administrator will permit participating individuals
to defer part of their Salary or Bonus (“
Deferrals
”) under
the Plan.
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Participants
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The Administrator will select the senior executives who are
eligible for participation in this Plan. Unless the
Administrator determines otherwise, persons eligible under
this Plan will be the Company’s Managing Directors. Eligible
individuals become “
Participants
” when the Administrator
permits Deferrals or accepts Assumed Obligations by such
persons. Neither the existence of this Plan nor any person’s
participation in it creates any obligation to continue that
person as a Participant.
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This Plan is an unfunded plan maintained primarily for the
purpose of retaining key employees by providing deferred
compensation for a select group of management and/or
highly-compensated employees. Such plans are described in
Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee
Retirement Income Security Act of 1974 (“
ERISA
”), and this
Plan must be interpreted and administered in a manner
consistent with that intent.
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If a Participant’s participation in the Plan ends for
any reason but he or she remains employed by the
Company, an Eligible Affiliate, or a successor
employer, his or her distribution rights will continue
to be covered by the terms of the Plan and all other
terms of the Plan will continue to apply to his or her
Account. The Administrator may make a distribution in
its sole discretion in this or any other situation if
it determines holding such Account could undermine the
intended treatment of this Plan under ERISA.
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“
Employee
” means any person the Company or a
Participating Affiliate employs on a regular, full-time
salaried basis who is paid from a United States
payroll.
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Deferrals
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The Administrator may permit Participants to defer a
portion of their Bonuses (and/or Salary) for any
Fiscal Year to the Plan. (The “
Fiscal Year
” is the
Company’s annual accounting year ending as of December
31.) The Deferral elections will be irrevocable
(subject to
Deferral Modification
below). Deferral
amounts are fully vested when made.
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Election Timing
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The Participant must enter into the election before
the period of time in which he or she earns the
deferred compensation and in accordance with
procedures the Administrator establishes. Except as
the Administrator otherwise provides, the deadline for
Deferral election (i) for Salary is December 31 of the
year preceding the year in which the Participant earns
the Salary and (ii) for Bonuses is August 1 of the
year preceding the Fiscal Year in which the
Participant may receive a discretionary Bonus. As
soon as practicable after the date on which the
deferred amounts would otherwise have been paid to the
Participant, the Company will credit the Deferrals to
the Participant’s Account (with notional earnings and
losses beginning only after further designation of
Notional Investments).
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Newly eligible Employees may elect to participate by
completing a deferral election form provided by the
Administrator. If such Employee fails to return a
completed deferral election form by the 30th day
following notification of eligibility to participate
(or such other earlier deadline as the Administrator
may determine), the Employee will be treated as having
elected not to defer any compensation under this Plan
for that Fiscal Year. Elections from newly eligible
Employees will apply to compensation (including
guaranteed Bonuses) earned after the date of election.
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In the sole discretion of the Administrator, this Plan
may assume responsibility for Deferrals made by
Participants under another deferred compensation plan
(the “
Assumed Obligations
”). Assumed Obligations are
subject to the elections of Deferrals and distributions
alternatives and payout methods elected under the plans
at which the elections were made.
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Salary
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“
Salary
” means a Participant’s base pay, before reduction (i) for
taxes, (ii) for any before-tax contributions made on the
Participant’s behalf under benefit plans such as the Barclays Bank
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 2
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PLC Thrift Savings Plan, and (iii) under the
Participant’s election of benefits or coverage under a
“cafeteria” plan, as described in Sections 125 or 129
of the Internal Revenue Code of 1986 (the “
Code
”) or
not included in income under Section 132(f) of the
Code.
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Bonus
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“
Bonus
” means a discretionary award payable under the cash
bonus plan of the Company or a Participating Affiliate or other cash
bonus payable to the Participant by the Company or Participating
Affiliate. “
Bonus
” excludes any severance pay, sign-on bonus, or
equity buy-out for cash.
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Limits
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A Participant’s Deferral may not result in a reduction of his or
her nondeferred compensation for the period to an amount below that
necessary to satisfy applicable employment taxes on deferred and
nondeferred compensation, benefit plan withholding amounts, and
income tax withholding for nondeferred compensation. The
Administrator may impose additional limitations on the Deferral
amounts and other terms and conditions of deferrals under the Plan,
including minimum and/or maximum periods of deferral.
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Deferral Modification
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The Administrator may establish further rules regarding the
amount that any Participant may defer, may expand upon or
further limit the sources or types of the compensation deferred, and
may establish further limitations on Deferrals of Salary and/or
Bonuses, including but not limited to reducing Participants’
deferral percentages and establishing limitations relating to
particular employment positions, compensation levels, or grades of
employees. The Administrator will advise affected Participants in
writing of such rules or limitations applying to them before the
start of any Fiscal Year (except when it considers that timing to be
impractical under the circumstances), and to the extent required,
such changes will override the provisions found in this Plan.
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Accounts
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The Administrator will establish Accounts for Participants. An
Account
is the separate bookkeeping account that the Administrator creates
and maintains to reflect the interests of each Participant, Deferrals from
Salary, and Deferrals from Bonuses, and hypothetical gains, losses,
interest, and dividends allocated to such amounts. An Account will also
reflect any liabilities the Administrator determines the Plan should
assume in connection with any prior or contemporaneous deferred
compensation plan of the Company or any Eligible Affiliate, whether as a
result of acquisition or otherwise, as an Assumed Obligation.
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 3
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Earnings/Losses
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The Administrator will reflect in the records of an
Account the value of any notional earnings and losses on each
Account under the Notional Investments.
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Expenses
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Each Account will bear the notional expenses that would apply if
the Participant were able to invest in the Notional Investments
selected for his or her account, as well as an equitable share of
any expenses the Company incurs in administering the Plan.
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Notional Investments
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The Administrator will select such mutual funds and other investment vehicles as it considers appropriate
for measuring investment performance (“
Notional Investments
”) and allow Participants to designate (and,
from time to time, reallocate) the one or more Notional Investments that the Participant requests. The
Administrator may make available or discontinue any Notional Investment at any time, in its sole
discretion. Notional Investments will be used to reflect hypothetical investment returns as soon as
practicable after the Administrator accepts a Participant’s request, taking into account the principles
described in
Illiquidity of Notional Investments
below. The Administrator may, in its sole discretion,
restrict allocations or reallocations by some or all Participants into or out of specific Notional
Investments and specify other rules, including frequency and minimum and maximum amounts for allocation or
reallocation.
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Illiquidity of Notional Investments
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Because the Administrator expects to make available Notional
Investments that may provide greater risk and return than have
previously been available to Participants, the Administrator
may delay any distribution to coincide with any restrictions that
third party investment vehicles would have required if the
Participant had been able to invest directly in the vehicle (or, if
more restrictive, any timing restrictions actually imposed by the
investment vehicle on any investment by the Company). As a
condition to electing any Notional Investment that provides
liquidity less frequently than daily, Participants must agree to the
possible delay in payment.
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Distributions
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General Rule
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Unless earlier distributable under another provision of the
Plan, the Participant’s Account will be distributed according to the
Participant’s elected distribution date and method. The Participant
may elect a distribution commencement date that is either a date in
the year following the Participant’s Retirement or no earlier than
two years following March 31 of the year in with the Participant
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 4
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would have otherwise received the Salary or Bonus.
Distributions (and installment payments) will be made
only on or around March 31, June 30, September 30, or
December 31, except as provided under
Illiquidity of
Notional Investments
. If the Participants fails to
make a valid election of distribution method, the
Administrator will provide for payment no later than 30
days following Retirement or Job Elimination (or, if in
the form of annual installments, the first March 31,
June 30, September 30, or December 31, following such
30th day).
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Retirement
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A Participant may elect, when making the Deferral election, to
have benefits paid on Retirement rather than at a fixed future date.
“
Retirement
” or “
retired
” refer to a person’s leaving employment
with the Company and all Eligible Affiliates at or after reaching
(i) age 55 with a 10 year period of service or (ii) 65 with a five
year period of service. “
Periods of service
” refer to the time
elapsed from date of employment through the date used above, without
reduction for authorized leaves of absence.
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Job Elimination
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A Participant may elect, when making the Deferral
election, to have benefits paid on Job Elimination rather than at a
fixed future date. For this purpose, “
Job Elimination
” means the
elimination of an employee’s position with the Company and all
Eligible Affiliates, as the Administrator (or its designee)
determines in its sole and absolute discretion in accordance with
its policies.
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Death
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The Participant’s Account balance (if any) will be
distributed as a lump sum payment to his or her Beneficiary or
estate within 120 days after confirmation of the Participant’s
death, notwithstanding any prior election the Participant made to
defer distribution, unless the Participant has specified a different
permissible schedule for payments on death. The following rules
apply to distributions if a Participant dies:
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The Administrator will only direct a distribution
after it receives such evidence of the
Participant’s death and of the right of any
Beneficiary to receive payment as the
Administrator considers necessary.
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The Participant may designate one or more
beneficiaries (the “
Beneficiaries
”) to receive a
distribution payable under the preceding
paragraph and may revoke or change such a
designation at any time. If and to the extent
applicable law requires, the spouse of a married
Participant
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 5
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must consent to the designation of any
Beneficiary other than the spouse, unless the
spouse cannot be located or the Administrator, in
its sole and absolute discretion, determines in a
particular case, that it would be appropriate to
waive the spousal consent requirement. Subject to
the spousal consent requirement, a Participant
may designate any natural or legal person or
persons as Beneficiary, including a fiduciary
such as a trustee of a trust or the legal
representative of an estate. If a Participant
designates two or more Beneficiaries,
distribution to them will be in such proportions
as the Participant specifies or, if none are
specified, in equal shares. Any designation of
Beneficiary will be in writing on such form as
the Administrator may prescribe or consider
acceptable and will be effective upon filing with
the Administrator.
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Any amount payable upon the death of a
Participant that is not distributed pursuant to a
designation of beneficiary under the preceding
paragraph, for any reason whatsoever, will be
paid to the Participant’s estate.
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The Administrator may make a distribution upon a
Participant’s death in accordance with a prior
designation of beneficiary (and will be fully
protected in so doing) if such distribution (i)
is made before a later designation is received or
(ii) is due to the Administrator’s inability to
verify the authenticity of a later designation.
Such a distribution will discharge the Company
and Administrator of all liability under this
Plan for the amount distributed.
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Disability
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The Participant’s Account balance (if any) will be distributed
as a lump sum payment to him or her (or to a duly appointed guardian
or representative), within 120 days after confirmation of the
Participant’s Disability, notwithstanding any prior election the
Participant made to defer distribution. The following rules apply
to distributions if a Participant suffers a Disability:
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The Administrator will only direct a distribution
after it receives such evidence of the
Participant’s Disability as the Administrator
considers necessary.
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 6
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“
Disability
” means an incapacity of a nature and
duration that would qualify a Participant for
benefits under the Barclays Bank PLC Long Term
Disability Plan if he or she participated in such
plan.
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Form and Timing
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Distributions from the Plan will be in the form of
cash (unless the Administrator determines otherwise).
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A Participant may elect to receive distributable
amounts in either a single payment on an elected
distribution date or in a series of up to ten annual
installments, payable on such date and on each
subsequent anniversary of such date for the total
number of installment years elected. Annual
installments will be paid in an amount, less applicable
withholding taxes, determined by multiplying the total
amount distributable by a fraction, the numerator of
which is one and the denominator of which is the number
of remaining unpaid annual installments.
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If a Participant remains employed by the Company or an
Eligible Affiliate, until an elected distribution date,
amounts will be distributed, pursuant to his election,
in either a single distribution on such date or in
installment payments that commence on that date and
then continue to be made on the anniversary of that
date for the duration of the installment period, unless
accelerated in accordance with the terms of this Plan.
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Acceleration of Distribution; Hardship
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If a Participant has a serious Financial Hardship, he or she may
apply to the Administrator for an accelerated distribution from
the Plan. If the Administrator approves the hardship
distribution, the Plan will make the distribution as soon as
possible after the later of the date the Participant specified in
his or her request or the date the Administrator approves the
distribution. The amount of the distribution will be the amount
needed to alleviate the Participant’s Financial Hardship, as
determined by the Administrator, up to a maximum of the
Participant’s interest in his or her Account. Such a distribution
will be made from the Participant’s Account in a single lump-sum
distribution.
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“
Financial Hardship
” will be limited to the following:
bankruptcy or impending bankruptcy of the Participant,
unexpected and unreimbursed major expenses resulting
from illness to person or accident to person (including
the Participant, spouse and/or dependents) or property
of the Participant and/or spouse, and other types of
unexpected and unreimbursed expenses
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 7
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of a major nature that normally would not be
budgetable. Financial hardship will not include
expenses such as down payments on a home or purchase of
an auto, cost of travel, vacation, college education,
or the like.
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Incapacity; Unclaimed Benefits
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If the Administrator determines that a Participant or Beneficiary is
unable to care for his or her affairs and a legal
representative has not been appointed for such person, the
Administrator may, in its sole and absolute discretion (i) suspend
payment to such Participant or Beneficiary until such legal
representative is appointed, or (ii) direct that any benefits
payable will be paid to the spouse, child, parent or other blood
relative of such Participant or Beneficiary, or (if and as
recognized by the state of domicile of the Participant or
Beneficiary) to the domestic partner of such Participant or
Beneficiary, or to any other person or entity, so long as applicable
law permits such payment and discharges completely all liability of
the Company and any Participating Affiliate under the Plan to such
Participant or Beneficiary. Furthermore, the Administrator may, in
its sole discretion, direct that payments due to a Beneficiary who
is a minor may be paid instead to the person who is the minor’s
guardian or has custody of the minor.
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If, after diligent and documented efforts, the
Administrator cannot locate a Participant or the
Beneficiaries to whom the Plan should make payments,
the Account so payable will be forfeited.
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Administrator
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The
Administrator
will be the
[
Pension\Thrift
]
Committee of the
New York branch of the Company.
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The Administrator is responsible for the general
operation and administration of this Plan and for
carrying out its provisions and has full discretion in
interpreting and administering the provisions of the
Plan. The Administrator’s determinations under the Plan
need not be uniform and need not consider whether
possible recipients are similarly situated. No member
of the Administrator may vote or act on any matter that
relates exclusively to himself/herself as a
Participant.
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The Administrator’s powers will include, but not be
limited to, the power to amend, waive, or extend any
provision or limitation under this Plan. The
Administrator may act through meetings of a majority of
its members or by unanimous consent.
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Agreements
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Deferral Agreements will set forth the terms of participation in
Deferrals and will include such terms and conditions, consistent
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 8
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with this Plan, as the Administrator may determine are
necessary or advisable. To the extent a Deferral
Agreement contains any provision that contradicts any
provision of this Plan, the terms of the provision of
this Plan supersede the contradictory provision of the
Deferral Agreement. The Deferral Agreements may
contain special rules.
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Fair Market Value
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“
Fair Market Value
” of a Notional Investment under the Plan, on
a given date, will be as follows: (i) with respect to any
mutual fund, net asset value as reported in the U.S. edition of The
Wall Street Journal with respect to the date of valuation, and (ii)
with respect to any alternative investment, the value, as determined
in good faith by the Administrator or its designee, based on all
relevant factors for determining the fair market value of an
investment of such type and nature. The Administrator will
determine the Fair Market Value for purposes of the Plan using any
measure of value it determines in good faith to be appropriate,
consistent the preceding sentence. In determining Fair Market
Value, the Administrator or its designee may rely upon a valuation
made by independent third party appraisers experienced in the
valuation of investments similar to the investment or may, as it
considers appropriate, rely on third party determinations of value
by the managing member, general partner, or investment manager of an
investment vehicle used as a Notional Investment. For Notional
Investments in hedge funds, the Administrator will, unless it
determines some other treatment is appropriate, use the value quoted
in the hedge fund’s most recent monthly statement preceding the date
as of which the Administrator determines value.
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The Administrator has sole discretion to determine the
Fair Market Value for purposes of this Plan, and all
benefits under this Plan are conditioned on the
Participants’ agreement that the Administrator’s
determination is conclusive and binding even though
others might make a different and also reasonable
determination.
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Affiliate Employees
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Employees of Participating Affiliates will be entitled to participate
in the Plan if they otherwise qualify and if the Administrator selects them. “
Participating Affiliate
” means any
Eligible Affiliate other than those the Administrator specifies. “
Eligible Affiliate
” means a branch or office of
the Company located in the United States of America or any other branch, office, subsidiary, or affiliate of the
Company located in a state, territory or commonwealth of the United States of America, excluding Barclays USA Inc.
and all of its direct and indirect subsidiaries.
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 9
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Legal Compliance
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No provision in the Plan or action taken under it authorizes any
action that Federal or state laws otherwise prohibit.
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This Plan is intended to conform to the extent
necessary with all provisions of the Securities Act of
1933 (“
Securities Act
”) and the Securities Exchange Act
of 1934 and all regulations and rules the Securities
and Exchange Commission issues under those laws.
Notwithstanding anything in the Plan to the contrary,
the Administrator must administer the Plan only in a
way that conforms to such laws, rules, and regulations.
To the extent permitted by applicable law, the Plan
will be treated as amended to the extent necessary to
conform to such laws, rules, and regulations.
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Tax Withholding
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The Participant must satisfy all applicable foreign, Federal, state, and local income and employment tax
withholding requirements before or at the same time as the Company makes any
Payments
. The Company may decide
to satisfy the withholding obligations through additional withholding on salary or wages. If the Company does
not or cannot withhold from other compensation, the Participant must pay the Company, with a cashier’s check or
certified check, the full amounts, if any, required for withholding.
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Transfers, Assignments, and Pledges, and Offsets
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No interest in a Participant’s Account or any payments due under
the Plan may be assigned, pledged, or otherwise transferred in any
way, whether by operation of law or otherwise or through any legal
or equitable proceedings (including bankruptcy), by the Participant (or
any Beneficiary) to any person, except by will or by operation of
applicable laws of descent and distribution. Other than by will, the laws
of inheritance, or by appointment of a Beneficiary, no right under the
Plan is subject to anticipation, attachment, lien, claim, liability,
encumbrance, or obligation by or with respect to any Participant, except
as the law otherwise requires, nor be subject to the debts, contracts,
liabilities or engagements, or torts of any Participant or his or her
Beneficiary. Any attempt to alienate, sell, transfer, assign, pledge,
garnish, attach or take any other action subject to legal or equitable
process or encumber or dispose of any interest in the Plan shall be void.
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The Company may reduce any payments due under this Plan
by the amount, if any, the Participant owes to the
Company or any Eligible Affiliate, including, without
limitation, any amount arising
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 10
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out of the Participant’s conversion or wrongful
misappropriation of the Company’s or its Affiliates’
property.
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Assets
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The Plan is an unfunded plan. The Company will pay benefits payable
under this Plan to a Participant or his Beneficiary directly from its
general assets, and Participants will be treated only as general unsecured
creditors of the Company. Neither the Company nor any Participating
Affiliate is required to fund, or otherwise segregate assets to be used
for payment or benefits under the Plan. Notwithstanding the foregoing,
the Company and the Participating Affiliates, in the Administrator’s
discretion, may maintain one or more grantor trusts (“
Trust
”) of which the
applicable employer is treated as the owner under Section 671 of the Code
to provide for the payment of benefits under the Plan, subject to such
terms and conditions as the Administrator may consider necessary or
advisable to ensure that benefits are not includible, by reason of such
Trust, in the taxable income of any Participant (or Beneficiary) and that
existence of such a Trust does not cause the Plan to be considered
“funded” for purposes of Title I of ERISA. Any trust or trusts designated
to hold assets in connection with the Plan also may hold assets previously
deferred under any predecessor plan or assets previously deferred under
other deferred compensation plans of the Company or any Participating
Affiliate or the affiliate or any predecessor of either.
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Any payment by a Trust of benefits provided to a
Participant under the Plan will be considered payment
by the Company or applicable Participating Affiliate
and will discharge the Company and the Participating
Affiliates from any further liability under the Plan
for such payments.
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Amendment or Termination of Plan and Deferrals
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The Board of Directors of the Company (the “
Board
”) may amend,
suspend, or terminate the Plan at any time, without the consent of
the Participants or their Beneficiaries. Except as required by law
or under
Acceleration of Payments
, the Administrator may not,
without the Participant’s or Beneficiary’s consent, modify
the terms and conditions of participation under the Plan so
as to adversely affect the Participant.
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Acceleration of Payments
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Notwithstanding anything to the contrary set forth in this Plan, the
Administrator will have the right, in its sole discretion and
without the consent of any Participant, to accelerate the
payment of all or a portion of a Participant’s Account for
any reason the Administrator may determine to be appropriate
(for example, the termination of
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 11
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the Plan, changes in tax laws or applicable accounting principles, or the Administrator’s determination that remaining installments
are too small for it to be administratively practical to continue (or begin) making installment payments)). The Administrator will
have the authority, but no obligation, to cause any such acceleration under those circumstances.
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Required Release
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Participants must agree (for themselves and any Beneficiaries) that payments in accordance with the Plan’s
provisions will fully satisfy all claims for the awards or other compensation deferred and relating to the
Deferrals and/or any Account to which the payments relate against the Company or any Participating
Affiliate or the Administrator. The Administrator or the Company may require such Participant or
Beneficiary (or any legal representative thereof), as a condition to such payments, to execute a receipt
and release to such effect.
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Effect on Other Plans
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Whether participating in this Plan causes the Participant to accrue
or receive additional benefits under any pension or other plan is governed solely by the terms of such
other plan.
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Limitations on Liability
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Notwithstanding any other provisions of the Plan, no individual
acting as a director, officer, other employee, or agent of the Company shall be liable to any Participant,
former Participant, spouse, beneficiary, or any other person for any claim, loss, liability, or expense
incurred in connection with the Plan, nor shall such individual be personally liable because of any
contract or other instrument he executes in such other capacity. The Company will indemnify and hold
harmless each director, officer, other employee, or agent of the Company to whom any duty or power
relating to the administration or interpretation of the Plan has been or will be delegated, against any
cost or expense (including attorneys’ fees) or liability (including any sum paid in settlement of a claim
with the Board’s approval) arising out of any act or omission to act concerning this Plan unless arising
out of such person’s gross negligence or willful misconduct.
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Data Collection
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The Administrator will keep (or arrange for the keeping of) all data, records, books of account and
instruments pertaining to Plan administration. Each Eligible Affiliate will supply all information the
Administrator requires to administer the Plan with respect to Participants employed by it, and the
Administrator may rely upon the accuracy of such information.
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 12
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No Employment Contract
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Nothing contained in this Plan constitutes an employment contract
between the Company and the Participants. The Plan does not give any Participant any right to be retained
in the Company’s employ, nor does it enlarge or diminish the Company’s right to end the Participant’s
employment or other relationship with the Company.
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Applicable Law
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The laws of the State of New York (other than its choice of law provisions) govern this Plan and its
interpretation.
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Barclays Bank PLC
U.S. Senior Management
Deferred Compensation Plan
Page 13
Exhibit 5.1
February 10, 2004
Barclays Bank PLC
200 Park Avenue
New York, NY 10066
Ladies and Gentlemen,
As Associate General Counsel of Barclays Bank PLC (“Barclays”), I have
acted as counsel to Barclays in connection with the Registration Statement on
Form S-8 (the “Registration Statement”) being filed with the Securities and
Exchange Commission in connection with the registration under the Securities
Act of 1933, as amended, of $100,000,000 in participation interests in the
Barclays Bank PLC U.S. Senior Management Deferred Compensation Plan (the
“Plan”), which interests represent unsecured obligations of Barclays to pay
deferred compensation in the future in accordance with the Plan.
In connection with the opinions set forth below, I have examined such
records and documents and have made such investigations of law and fact as I
have deemed necessary.
Based on the foregoing, it is my opinion that the participation interests
being registered pursuant to the Registration Statement, will, when payment is
due under the Plan, be valid and binding obligations of Barclays, enforceable
in accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, liquidation, administration, moratorium, reorganisation
and other laws of general application relating to or affecting the rights of
creditors as such law may be applied in the event of the bankruptcy,
insolvency, liquidation, administration, moratorium, reorganisation or other
similar proceedings with respect to Barclays.
In addition, the Plan is established and maintained as a top-hat plan for
the purpose of providing deferred compensation for a selected group of
management or highly compensated employees within the meaning of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”). As such, it is
subject to limited provisions of ERISA (specifically, Parts 1 and 5 of Title I
of ERISA) with which Barclays complies.
I hereby consent to the filing of this legal opinion as an exhibit to the
Registration Statement and to the reference to me under Item 5, “Interest of
Named Experts and Counsel,” of the Registration Statement.
Very truly yours,
/s/ Richard W. Knaub
Richard W. Knaub
Associate General Counsel
