1999 BARCLAYS BANK PLC DEFERRED COMPENSATION PLAN



 



Exhibit 4.1



1999 Barclays Bank PLC Deferred Compensation Plan




(As Amended and Restated Effective March 1, 2003)





 







 




1999 BARCLAYS BANK PLC

DEFERRED COMPENSATION PLAN




1.  Purpose



     The purpose of the 1999 Barclays Bank PLC Deferred Compensation Plan,
originally adopted effective January 1, 1999, amended and restated effective
December 2001, and as herein amended and restated effective March 1, 2003 is to
provide Participants with an opportunity to defer payment of a portion of Base
Salary and Bonus as a means of saving for their retirement or other purposes.
At all times, this Plan shall be considered entirely unfunded, both for tax
purposes and for purposes of Title I of ERISA. This Plan is maintained
primarily for the purpose of providing deferred compensation for a select group
of management and highly compensated employees, and is therefore not subject to
any of the participation, vesting, funding or fiduciary responsibility
provisions of ERISA.


2.  Definitions



     The following definitions shall be applicable throughout the Plan.


     (a)     “Account” shall mean the Participant’s account established pursuant to
Section 7 of the Plan. An Account will be maintained solely as a bookkeeping
entry by the Employer or Participating Company to evidence unfunded obligations
of the Employer or such Participating Company.


     (b)     “Base Salary” shall mean a Participant’s base pay, before reduction:
(i) for taxes, and (ii) for any before-tax contributions made on the
Participant’s behalf under benefit plans such as the Thrift Savings Plan, and
(iii) pursuant to the Participant’s election of benefits or coverage under a
“cafeteria” plan, as described in Sections 125 or 129 of the Code, or not
included in income under Section 132(f) of the Code.


     (c)     “Beneficiary” shall mean any person (which may include trusts and is
not limited to one person) designated by the Participant in his or her most
recent written Beneficiary designation form filed with the Committee to receive
the benefits specified under the Plan in the event of the Participant’s death.
The spouse of a married Participant shall be required to consent to the
designation of a Beneficiary or Beneficiaries other than such spouse, unless
such spouse cannot be located or the Committee, in its sole and absolute
discretion, determines in a particular case, that it would be appropriate to
waive the spousal consent requirement.


     (d)     “Board” shall mean the Board of Directors of the Employer, or its
duly authorized delegate.


 







 


     (e) “Bonus” shall mean a discretionary award payable under a cash bonus
plan maintained by the Employer or Participating Company or other cash bonus
payable to the Participant as determined by the Employer or Participating
Company in its sole and absolute discretion. “Bonus” shall not include any
severance pay, sign-on bonus, or equity buy-out for cash.


     (f)     “Code” shall mean the U.S. Internal Revenue Code of 1986, as it may be
amended from time to time, as well as regulations promulgated thereunder.


     (g)     “Committee” shall mean such individual(s) as may be designated from
time to time by the Board.


     (h)     “Deferred Amounts” shall mean Base Salary and/or Bonus that
Participants have elected to defer under the Plan and any predecessor plan(s).


     (i)     “Disability” shall mean a disability of a nature and duration that
would qualify a Participant for benefits under the Barclays Bank PLC Long Term
Disability Plan, as amended from time to time, if he or she participated in
such plan.


     (j)     “Employee” shall mean any person employed by the Employer or a
Participating Company on a regular, full-time salaried basis who is paid from a
United States payroll.


     (k)     “Employer” shall mean Barclays Bank PLC, or any U.S. branch or office
thereof.


     (l)     “ERISA” shall mean the U.S. Employee Retirement Income Security Act of
1974, as it may be amended from time to time, as well as regulations
promulgated thereunder.


     (m)     “Fair Market Value” shall mean, on a given date, (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
Committee or its designee, based on all relevant factors for determining the
fair market value of an investment of such type and nature. In determining
Fair Market Value, the Committee or its designee may rely upon a valuation made
by independent third party appraisers experienced in the valuation of
investments similar to the investment.


     (n)     “Job Elimination” shall mean the elimination of an employee’s position
with the Employer or a Participating Company, as determined by the Committee or
its designee in its sole and absolute discretion in accordance with its
policies.


     (o)     “Participant” shall mean an Employee (i) who (A) is a member of Senior
Management (as defined herein), (B) is a highly compensated Employee, and (C)
is designated by the Committee as eligible to participate in the Plan, and (ii)
who is personally notified of his or her status by the Committee, in writing.


 







 


     (p)     “Participating Company” shall mean a branch or office of the Employer
located in the United States of America or any other branch, office, subsidiary
or affiliate of the Employer 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.


     (q)     “Plan Year” shall mean the twelve month period beginning each January
1st and ending the following December 31st.


     (r)     “Retirement” or “Retires” (as the context requires) shall mean the
Participant’s termination of employment from the Employer or any subsidiary or
affiliate thereof, after attainment of (i) at least age 55 and completion of a
period of service of at least ten years, or (ii) at least age 65 with a period
of service of at least five years


     (s)     “Senior Management” shall mean any Employee who holds the title of
Director or above with the Employer or a Participating Company.


     (t)     “Trust” shall mean any trust or trusts established or designated by
the Employer to hold assets in connection with the Plan; provided, however,
that the assets of such trusts shall remain subject to the claims of the
general creditors of the Employer or Participating Company, as applicable, to
the extent required by law, such that they will not be taxable to Participants
or Beneficiaries until actually paid therefrom. Notwithstanding anything
herein to the contrary, 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 Employer or any Participating Company or the
affiliate or any predecessor of either.


3.  Effective Date and Duration of the Plan



     The Plan shall remain in effect from January 1, 1999 until such time as it
may be terminated by the Employer. In the event that the Plan is terminated,
Deferred Amounts will be paid in accordance with distribution elections made
under Section 6 of the Plan or an earlier date or dates as determined at the
sole and absolute discretion of the Committee. The offering with respect to
the 2003 Plan Year and all subsequent offerings shall be governed exclusively
by the provisions of this Plan as amended and restated effective March 1, 2003.
Offerings for Plan Years prior to 2003 shall be governed by the provisions of
this Plan as in effect at the time of the offering, except that on or after
March 1, 2003, earnings on pre-2003 Deferred Amounts shall be governed solely
by the provisions of Section 7 of this Plan as amended and restated effective
March 1, 2003. In addition, distribution options in effect when deferral
elections under the 1998 and all prior offerings were made shall continue to be
honored with respect to any and all accounts outstanding as of December 31,
1998 under this and any predecessor plan(s) that were converted into
Participant Accounts hereunder effective January 1, 1999.


4.  Administration




 







 




     (a)     The Plan shall be administered by the Committee (subject to the
ability of the Board to restrict the Committee), which shall administer the
Plan in accordance with its terms. The Committee shall have all powers
necessary to accomplish such purpose, including the power and authority to
construe and interpret the Plan, to define the terms used herein, to prescribe,
amend and rescind rules and regulations, agreements, forms, and notices
relating to the administration of the Plan, and to make all other
determinations necessary or advisable for the administration of the Plan. Any
actions of the Committee with respect to the Plan shall be conclusive and
binding upon all persons interested in the Plan. Each of the Board and the
Committee may appoint agents and delegate thereto powers and duties under the
Plan, except as otherwise limited by the Plan.


     (b)     Each officer of the Employer or any Participating Company and each
Committee member shall be entitled, in good faith, to rely or act upon any
report or other information furnished to him or her by any officer or other
employee of the Employer or any Participating Company or any affiliate, the
Employer’s independent certified public accountants, or any executive
compensation consultant, legal counsel, or other professional retained by the
Employer to assist in the administration of the Plan. To the maximum extent
permitted by law, no officer of the Employer, any Participating Company or
Committee member, nor any person to whom ministerial duties have been
delegated, shall be liable to any person for any action taken or omitted in
good faith in connection with the interpretation and administration of the
Plan.


5.  Eligibility



     Any Employee who is notified that he or she has been designated as an
eligible Participant with respect to a Plan Year may make deferrals under this
Plan with respect to Compensation and Bonus to be earned during such Plan Year.
The Committee will notify each person of his or her eligibility to participate
in the Plan not later than 15 days (or such lesser period as may be practicable
in the circumstances) prior to any deadline for filing an election form.


6.  Election to Defer



     (a)     Timing. An election to defer must be made by a Participant prior to
(i) January 1 of the Plan Year with respect to Base Salary to be earned in such
Plan Year and (ii) August 1 of the Plan Year with respect to annual Bonus to be
awarded with respect to such Plan Year. Notwithstanding the above, newly
hired employees who are advised of their eligibility to participate in the Plan
may submit their deferral elections no later than 30 days following their first
day of employment and such elections will be effective as soon as practicable
after such first day of employment. Once a deferral election form, properly
completed, is received by the Committee, the elections of the Participant
thereon shall be irrevocable; provided, however, that such election shall be
subject to a request for modification pursuant to Section 8 of the Plan.


     (b)     Amount. Participants may elect to defer any portion of Base Salary or
Bonus, if any, to be received with respect to a particular Plan Year, subject
to the requirement that in no event may a Participant’s deferral election
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. Notwithstanding the
above, the Committee may impose limitations on the amounts permitted to be
deferred and other terms and conditions of deferrals under the Plan, including
minimum and/or maximum periods of deferral. Any such limitations, and other terms and conditions of deferral, shall be set
forth in rules relating to the Plan or election forms, other forms, or
instructions published by the Committee.


     (c)     Election Alternatives. All elections made under this Section 6 shall
include an irrevocable distribution schedule that (i) provides for distribution
in lump sum or in up to ten annual installments and (ii) (A) specifies the
March 31, June 30, September 30 or December 31 on which such payments are to
begin, or (B) indicates that such payments are to begin following Retirement or
Job Elimination; provided, however, that such distribution schedule shall be
subject to a request for modification pursuant to Section 8 of the Plan. A
Participant cannot elect a deferral payment beginning date that would cause
payments to commence sooner than two years following March 31 of the year in
which the Deferred Amounts originally would have been payable. In the event
that there is no valid election by a Participant on file with the Committee,
all deferral payments to such Participant will (x) commence no later than a
Participant’s Retirement and (y) be made in a single lump sum. Payment to a
Participant of his or her Deferred Amounts following his or her Retirement or
Job Elimination will be made as follows: (A) if in the form of a lump sum
payment, no later than 30 days following such Retirement or Job Elimination,
and (B) if in the form of annual installment payments, beginning on the
earliest to occur of March 31, June 30, September 30 or December 31 first
following the expiration of 30 days following such Retirement or Job
Elimination. Notwithstanding the foregoing, earlier distribution of a
Participant’s Accounts shall be made as provided under Section 9 of the Plan.


7.  Participant Accounts



     (a)     Establishment of Accounts. One or more Accounts will be established
for each Participant, as determined by the Committee, into which the Deferred
Amount for each year shall be credited. The amount of Base Salary and Bonus
deferred with respect to each Account will be credited as of the date on which
such amounts would have been paid to the Participant but for the Participant’s
election to defer receipt hereunder, unless otherwise determined by the
Committee. Participant deferrals will be deemed to be invested in one or
more of the hypothetical investments, as provided in Section 7(b) hereof, no
later than five business days following the date of the deferral. The amounts
of hypothetical income and appreciation and depreciation in value of an Account
will be credited and debited to, or otherwise reflected in, such Account from
time to time. Unless otherwise determined by the Committee, amounts credited
to an Account shall be deemed invested in a hypothetical investment as of the
date so credited.


     (b)     Hypothetical Investments. Subject to the provisions of Section 7(c),
amounts credited to an Account shall be deemed to be invested, at the
Participant’s direction, in one or more of such mutual funds as may be
specified from time to time by the Committee, and/or such other investment
vehicles as may be specified from time to time by the Committee. The



 







 



Committee may make available or discontinue any hypothetical mutual fund or other
investment vehicle available to any Participant under the Plan at any time, in
its sole and absolute discretion.


     (c)     Reallocation of Hypothetical Investments. A Participant may
reallocate amounts credited to his or her Account among the available
hypothetical investment vehicles made available to such Participant on a basis determined by the Committee. The
Committee may, in its sole and absolute discretion, restrict allocation or
reallocation by specified Participants into or out of specified investment
vehicles or specify minimum or maximum amounts that may be allocated or
reallocated by Participants.


8.  Distribution in the Event of Unforeseeable Emergency



     The Committee may, in its sole and absolute discretion, make a partial or
total distribution of the amounts in a Participant’s Account(s) or accelerate
the Participant’s distribution schedule upon the Participant’s request and a
demonstration by the Participant of an “unforeseeable emergency”. An
unforeseeable emergency shall mean an unanticipated emergency that is caused by
an event beyond the control of the Participant or Beneficiary and that would
result in severe financial hardship to the individual if early withdrawal were
not permitted. An unforeseeable emergency may result from a sudden and
unexpected illness or accident of the Participant or a dependent (as defined
under Section 152(a) of the Code) of the Participant, loss of a Participant’s
property due to a casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant. The circumstances that will constitute an unforeseeable emergency
in any particular case shall be determined by the Committee, in its sole and
absolute discretion. The amount of any such early withdrawal shall be limited
to the amount deemed necessary by the Committee to alleviate or remedy the
Participant’s unforeseeable emergency.


9.  Distribution of Deferred Compensation



     (a)     General. Payout of Deferred Amounts shall be made at the time and in
the form elected by the Participant on his or her deferral election form(s)
with respect to deferrals made, or, in the absence of such an election, in
accordance with Section 6(c) hereof. The Committee shall settle a
Participant’s Account(s), and discharge all of its obligations to pay Deferred
Amounts under the Plan with respect to such Accounts, by payment of cash equal
to the Fair Market Value of the hypothetical amounts credited to the applicable
Account, less taxes required to be withheld. The Committee may set a minimum
amount for each distribution of Deferred Amounts. All amounts needed for a
payment will be deemed withdrawn from the investment vehicle(s) as close in
time as is practicable to the requested payment date. If a Participant has
elected to receive installment payments, unpaid balances will continue to earn
gains or losses based upon the performance of the investment vehicle(s) that
such Participant has designated as his or her hypothetical investment(s).
Notwithstanding any provision of this Plan to the contrary, in the event that
the Committee determines, in its sole and absolute discretion, that the amount
of any benefit (or any balance thereof) is too small to make it
administratively practical to begin or continue paying such benefit in
installments, such benefit (or any balance thereof) may be paid in the form of
a lump sum.


 







 


     (b)     Distribution of Amounts Deferred Under Section 6 of the Plan. Except
as otherwise provided in Sections 9(c) through 9(f) of the Plan, Amounts
deferred by election under Section 6 of the Plan shall be distributed in a lump
sum or in such number of annual installments (not exceeding ten) as irrevocably
elected by the Participant and on the date(s) as the Participant
shall have irrevocably elected in accordance with Section 6 of the Plan,
subject to earlier full or partial distribution as approved by the Committee
upon request under Section 8 of the Plan.


     (c)     Distribution Due to Death. Should a Participant die, the
undistributed amount of such Participant’s Account(s) shall be distributed to
the Participant’s Beneficiary or Beneficiaries. Such distributions shall be
made in accordance with the distribution schedule elected by the Participant,
or, in the sole and absolute discretion of the Committee, may be paid in a lump
sum as soon as practicable following the month in which death occurs.
Beneficiary designations shall be made by the Participant on a form prescribed
by the Committee. The Participant may, at any time, subject to the spousal
consent requirements set forth in Section 1(c) hereof, change or revoke such
designation, which change or revocation shall be effective upon receipt of a
new written beneficiary designation or a written revocation by the Participant
to the Committee. In the event that more than one Beneficiary is designated
and a Beneficiary predeceases the Participant, his share shall be allocated
proportionately among the remaining Beneficiary(ies) surviving the Participant.
If the Participant does not designate a Beneficiary or if no designated
Beneficiary survives the Participant, those portions of the Participant’s
Account(s) remaining unpaid upon the Participant’s death shall be paid to the
Participant’s estate.


     (d)     Distribution Due to Termination of Employment for reasons other than
death, including Disability. In the event of a Participant’s termination of
employment from the Employer or any of its affiliates for reasons other than
death, including Disability, the Committee shall distribute all of such
Participant’s Account(s) either (i) in accordance with the distribution
schedule elected by the Participant or (ii) in the sole and absolute discretion
of the Committee, in a lump sum as soon as practicable following the month in
which such termination of employment occurs.


     (e)     Changes in Laws. The Committee may distribute to the Participant(s)
such portion of their Accounts as the Committee shall determine if the
Committee concludes, in its sole and absolute discretion, that events such as
changes in the federal tax laws or applicable accounting principles or
practices have rendered continued deferral of the Deferred Amount(s)
undesirable either for the Employer, a Participating Company, or the
Participant(s).


     (f)     Incapacity of Participant or Beneficiary. If the Committee 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 Committee
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 hereunder shall 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 such payment is permitted under
applicable law and



 







 



discharges completely all liability of the Employer and any
Participating Company under the Plan to such Participant or Beneficiary.


10.  Miscellaneous



     (a)     No Reserve or Trust Required. Nothing contained in the Plan shall
require the Employer or other Participating Company to segregate any funds for
purposes relating to the Plan, or to create any trust or make any special
deposit in respect of, any amount payable under the Plan to any Participant or
group of Participants. All credits to a Participant’s Account shall be made
only in the records of the Employer or other Participating Company. All
amounts becoming payable under the Plan shall be payable as general unsecured
liabilities of the Employer or other Participating Company to be paid out of
the general funds of the applicable Employer or other Participating Company.
Participants have the status of general unsecured creditors of the
Participating Company and the Plan constitutes a mere promise by the
Participating Company to make payments in the future. Notwithstanding the
above, the Employer or any Participating Company may, in its sole and absolute
discretion, establish one or more Trusts (including sub-accounts under such
Trust(s)), and deposit therein cash or other property in amounts not exceeding
the amount of the Employer or such Participating Company’s obligations with
respect to one or more Participants’ Accounts established under Section 7 of
the Plan.


     (b)     No Right to Assign. Other than by will, the laws of descent and
distribution, or by appointing a Beneficiary, no right, title or interest of
any kind in the Plan shall be transferable or assignable by a Participant (or
his or her Beneficiary) or be subject to alienation, anticipation, encumbrance,
garnishment, attachment, levy, execution or other legal or equitable process,
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.


     (c)     No Employment Rights Conferred. Nothing contained in the Plan shall
(i) confer upon any Participant any right with respect to continuation of
employment with the Company or any Participating Company, (ii) interfere in any
way with the right of the Company or any Participating Company to terminate the
Participant’s employment at any time, or (iii) confer upon any Participant or
other person any claim or right to any distribution under the Plan except in
accordance with its terms.


     (d)     Indemnification. To the extent permitted by law, the Employer or
other Participating Company shall indemnify any employee or any director of a
Participating Company, or his or her heirs and legal representatives, against
all liability and reasonable expenses, including counsel fees, amounts paid in
settlement and amounts of judgments, fines or penalties, incurred or imposed
upon him or her in connection with any claim, action, suit or proceeding,
whether civil, criminal, administrative or investigative, arising from any act
or omission in connection with his or her duties with respect to this Plan,
provided that such act or omission does not constitute gross negligence or
willful misconduct.


 







 


     (e)     Choice of Law. This Plan and the Participant’s participation and
deferral election agreement (or any form that the Committee may prescribe in
order for a Participant to defer compensation) shall be interpreted and applied
in accordance with the laws of the State of New York, without regard to
conflicts of law principles, except to the extent superseded by applicable
federal law.


     (f)     Statements. The Committee will furnish statements to each Participant
reflecting the amount credited to a Participant’s Accounts and transactions
therein from time to time and not less frequently than once each calendar year.


     (g)     Receipt and Release. Payments (in any form) to any Participant or
Beneficiary (or any legal representative thereof) in accordance with the
provisions of the Plan shall, to the extent thereof, be in full satisfaction of
all claims for the awards or other compensation deferred and relating to the
Deferred Amount and/or any Account to which the payments relate against the
Employer or any Participating Company or the Committee, and the Employer 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.


     (h)     Tax Withholding. The Employer and any Participating Company shall
have the right to deduct from amounts otherwise payable in settlement of a
Deferred Amount or Account any sums that federal, state, local or foreign tax
law requires to be withheld with respect to such payment.


     (i)     Offset. Notwithstanding anything contained herein to the contrary,
the Employer or any Participating Company, in its sole and absolute discretion,
may offset from the payment or payments otherwise to be made to any Participant
of any benefit hereunder, an amount equal to any indebtedness or liability to
the Employer or such Participating Company by such Participant existing at the
time of such distribution, including, without limitation, any amount arising
out of conversion or wrongful misappropriation of the property of the Employer
or such Participating Company by such Participant.


11.  Amendment and Termination



     The Committee and/or the Board may from time to time amend, suspend or
terminate the Plan, except that no amendment, suspension or termination may,
without his or her consent, adversely affect the Account(s) of any Participant
as it (or they) existed on the effective date of such amendment, suspension or
termination.