<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 4)*
BARRINGER TECHNOLOGIES INC.
________________________________________________________________
(Name of issuer)
Common Stock, par value $.01 per share
________________________________________________________________
(Title of class of securities)
68509603
_____________________________
(CUSIP number)
Robert G. Barrett
J O Hambro Capital Management Limited
10 Park Place
London SW1A 1LP England
011-44-171-222-2020
_______________________________________________________________________________
(Name, address and telephone number of person authorized to receive notices and
communications)
January 4, 2000
______________________________________________________
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
1
<PAGE>
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Lionheart Group, Inc.
13-3790-376
- -------------------------------------------------------------------------
2. (a) [ ]
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (b) [X]
-------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------
4. SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 235,000
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 235,000
WITH
10. SHARED DISPOSITIVE POWER
0
- -------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
235,500
- -------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- -------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4%
- -------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IA
- -------------------------------------------------------------------------
* SEE INSTRUCTIONS BEFORE FILLING OUT!
2
<PAGE>
<TABLE>
<S> <C>
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
J O Hambro Capital Management (Holdings) Limited
No I.R.S. Identification Number
- -------------------------------------------------------------------------
2. (a) [ ]
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (b) [X]
- -------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------
4. SOURCE OF FUNDS*
AF
- -------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
England
- -------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 370,000
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH
10. SHARED DISPOSITIVE POWER
370,000
- -------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
370,000
- -------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- -------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4%
- -------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
HC, CO
- -------------------------------------------------------------------------
</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
3
<PAGE>
<TABLE>
<S> <C>
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
J O Hambro Capital Management Limited
No I.R.S. Identification Number
- -------------------------------------------------------------------------
2. (a) [ ]
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (b) [X]
- -------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------
4. SOURCE OF FUNDS*
AF
- -------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
England
- -------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 370,000
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH
10. SHARED DISPOSITIVE POWER
370,000
- -------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
370,000
- -------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- -------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4%
- -------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IA, CO
- -------------------------------------------------------------------------
</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
4
<PAGE>
<TABLE>
<S> <C>
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
American Opportunity Trust plc
No I.R.S. Identification Number
- -------------------------------------------------------------------------
2. (a) [ ]
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (b) [X]
- -------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------
4. SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
England
- -------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 250,000
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH
10. SHARED DISPOSITIVE POWER
250,000
- -------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
250,000
- -------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
- -------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.6%
- -------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- -------------------------------------------------------------------------
</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
5
<PAGE>
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Christopher Harwood Bernard Mills
No I.R.S. Identification Number
- -------------------------------------------------------------------------
(a)
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (b) [X]
- -------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------
4. SOURCE OF FUNDS*
AF
- -------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e)
- -------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
England
- -------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 370,000
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH
10. SHARED DISPOSITIVE POWER
370,000
- -------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
370,000
- -------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- -------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4%
- -------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------
* SEE INSTRUCTIONS BEFORE FILLING OUT!
6
<PAGE>
<TABLE>
<S> <C>
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
The Trident North Atlantic Fund
No I.R.S. Identification Number
- -------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- -------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------
4. SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
- -------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 120,000
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH
10. SHARED DISPOSITIVE POWER
120,000
- -------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
120,000
- -------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- -------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
- -------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- -------------------------------------------------------------------------
</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
7
<PAGE>
AMENDMENT NO. 4 TO
STATEMENT ON SCHEDULE 13D
-------------------------
This Amendment No. 4 to Statement on Schedule 13D (the "Amendment") amends
Item 2, 3, 5, 6 and 7 of the Statement on Schedule 13D (the "Schedule 13D")
filed on October 30, 1998 with the Securities and Exchange Commission (the
"SEC") by certain of the Filing Parties, as amended by Amendment No. 1 filed
with the SEC on April 16, 1999, as further amended by Amendment No. 2 filed with
the SEC on April 22, 1999 and as further amended by Amendment No. 3 filed with
the SEC on December 6, 1999.
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
Item 2 is amended and restated in its entirety as follows:
2 (a-c, f).
I. Filing Parties:
--------------
This Statement is filed on behalf of the following six persons, who are
collectively referred to as the "Filing Parties":
1. Lionheart Group, Inc. ("Lionheart") , a Delaware corporation with a
business address of 230 Park Avenue, Suite 516, New York, NY 10169.
Lionheart acts as investment adviser to several private investment
funds and managed accounts which are the ultimate beneficial owners of the
shares to which this statement relates. No such client of Lionheart owns 5%
or more of the outstanding Common Stock.
The officers of Lionheart are: C. Duncan Soukup, President, Secretary
and Treasurer; Brant Root, Vice President; and John Radziwill, Vice
President. The sole director of Lionheart is C. Duncan Soukup. The
business address of C. Duncan Soukup is 230 Park Avenue, Suite 516, New
York, NY 10169. The present occupation of (a) C. Duncan Soukup is
President of Lionheart, (b) Brant Root is Vice President of Lionheart,
and (c) John Radziwill is Vice President of Lionheart. C. Duncan Soukup
and John Radziwill are citizens of the United Kingdom and Brant Root is a
citizen of the United States.
2. J O Hambro Capital Management (Holdings) Limited ("Holdings") is a
corporation organized under the laws of England with its principal office
and business at 10 Park Place, London SW1A 1LP England. Holdings functions
as the ultimate holding company for J O Hambro Capital Management.
3. J O Hambro Capital Management Limited ("J O Hambro Capital Management"),
formerly named J O Hambro & Partners Limited, is a corporation organized
under the laws of England with its principal office and business at 10 Park
Place, London SW1A 1LP England. J O Hambro Capital Management is
principally engaged in the business of investment management and advising.
It serves as co-investment adviser to North Atlantic Smaller Companies
Investment Trust plc ("NASCIT") and American Opportunity Trust and as
investment adviser to Oryx International Growth Fund Limited ("Oryx") and
Trident and investment manager to certain private clients.
8
<PAGE>
4. Christopher Harwood Bernard Mills is a British citizen whose business
address is 10 Park Place, London SW1A 1LP England. His principal
employment includes service as executive director of NASCIT, as a director
of J O Hambro Capital Management, Oryx and Trident, and as co-investment
adviser to NASCIT and American Opportunity Trust.
5. American Opportunity Trust plc ("American Opportunity Trust"), formerly
named Leveraged Opportunity Trust plc, is a corporation organized under the
laws of England with its principal office and business at 10 Park Place,
London SW1A 1LP England. American Opportunity Trust is a publicly-held
investment trust company. Christopher Harwood Bernard Mills and J O Hambro
Capital Management serve as co-investment advisers to American Opportunity
Trust.
6. The Trident North Atlantic Fund ("Trident"), is an open-ended investment
company incorporated in the Cayman Islands with its principal office and
business at PO Box 309, Ugland House, George Town, Grand Cayman, Cayman
Islands. Trident is a publicly-held regulated mutual fund. Christopher
Harwood Bernard Mills serves as a director of Trident and J O Hambro
Capital Management serves as investment adviser to Trident.
II. Control Relationships:
---------------------
J O Hambro Capital Management is a subsidiary of Holdings.
Christopher Mills serves as a director of J O Hambro Capital Management and
as executive director of American Opportunity Trust and a director of Trident.
III. Executive Officers and Directors:
--------------------------------
In accordance with the provisions of General Instruction C to Schedule 13D,
information concerning the executive officers and directors of the Filing
Parties is included in Schedule A hereto and is incorporated by reference
herein.
(d) Criminal Proceedings
--------------------
During the last five years, neither the Filing Parties (or a controlling
entity thereof) nor any executive officer or director of any of the Filing
Parties (or a controlling entity thereof) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) Civil Securities Law Proceedings
--------------------------------
During the last five years, neither the Filing Parties (or a controlling
entity thereof) nor any executive officer or director of any of the Filing
Parties (or a controlling entity thereof) has been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
9
<PAGE>
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
-------------------------------------------------
Item 3 is amended to add the following:
All of the $696,820 used by Trident to acquire the 120,000 shares of Common
Stock of the Company came from the working capital of Trident for whose account
such shares were purchased.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
------------------------------------
Item 5(a-d) is amended and restated in its entirety as follows:
(a) - (b) The aggregate number and percentage of the outstanding Common
Stock of the Company beneficially owned (i) by each of the Filing Parties, and
(ii) to the knowledge of the Filing Parties, by each other person who may be
deemed to be a member of the Group, is as follows:
<TABLE>
<CAPTION>
Number Number of
Number of of Shares: Shares: Sole
Filing Aggregate Shares: Sole Shared or Shared
Party Number of Power to Power to Power to Approximate
Shares: Vote Vote Dispose Percentage*
- -------------------- --------- ------------ --------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Lionheart Group, 235,500 235,500 0 235,500 3.4%
Inc.
- ------------------------------------------------------------------------------------
Holdings 370,000 0 370,000 370,000 5.4%
- ------------------------------------------------------------------------------------
J O Hambro 370,000 0 370,000 370,000 5.4%
Capital
Management
- ------------------------------------------------------------------------------------
Christopher H.B. 370,000 0 370,000 370,000 5.4%
Mills
- ------------------------------------------------------------------------------------
American 250,000 0 250,000 250,000 3.6%
Opportunity Trust
Trident 120,000 0 120,000 120,000 1.7%
- ------------------------------------------------------------------------------------
</TABLE>
* Based on 6,907,502 shares of Common Stock, par value $.01 per share
outstanding as of October 29, 1999, which is based on information reported in
the Company's Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1999.
(c) Since the most recent filing of this Statement on December 6, 1999,
the Filing Parties effected no transactions in the Common Stock other than those
set forth in the following table:
<TABLE>
<CAPTION>
No. of Price
Date Filing Party Shares (US)$ Broker
- -------- -------------- ------ ----- -------------
<C> <S> <C> <C> <C>
12/9/99 Trident 5,000 5.75 Raymond James
12/17/99 Trident 5,000 5.75 Raymond James
12/20/99 Trident 27,500 5.75 Raymond James
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C>
12/21/99 Trident 7,500 5.75 Raymond James
12/22/99 Trident 10,000 5.75 Raymond James
12/31/99 Trident 10,000 6.44 Raymond James
1/4/00 Trident 17,500 5.75 Raymond James
1/5/00 Trident 7,500 5.75 Raymond James
1/6/00 Trident 5,000 5.75 Raymond James
1/7/00 Trident 5,000 5.75 Raymond James
1/10/00 Trident 8,000 5.74 Raymond James
1/11/00 Trident 3,700 5.75 Raymond James
1/12/00 Trident 8,300 5.75 Raymond James
</TABLE>
The above transactions were effected in the open market and were purchases.
(d) The shareholders of American Opportunity Trust have an economic
interest in the dividends from, and the proceeds of sales of, Common Stock
beneficially owned by American Opportunity Trust. The shareholders of Trident
have an economic interest in the dividends from, and the proceeds of sales of,
Common Stock beneficially owned by Trident.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
---------------------------------------------------------------------
TO SECURITIES OF THE ISSUER.
---------------------------
Item 6 is amended to add the following:
As investment adviser to Trident J O Hambro Capital Management has the
right to transfer and vote the shares of Common Stock of the Company pursuant to
an agreement dated as of November 5, 1998 between J O Hambro Capital Management
(Bermuda) Limited, the Manager of Trident, and J O Hambro Capital Management.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
--------------------------------
Item 7 is amended to add the following:
The following documents are filed herewith:
(a) Investment Advisory Agreement dated November 5, 1998 between J O Hambro
Capital Management (Bermuda) Limited and J O Hambro & Capital
Management.
(b) Joint Filing Agreement dated as of January 13, 2000 among Holdings, J O
Hambro Capital Management, American Opportunity Trust, Trident,
Christopher Harwood Bernard Mills and Lionheart Group, Inc.
11
<PAGE>
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
Dated: 13 January 2000 J O HAMBRO CAPITAL MANAGEMENT LIMITED
By: /s/ R. G. Barrett
------------------------------------------------
Name: R. G. Barrett
Title: Director
Executed on behalf of the parties hereto pursuant to the
Joint Filing Agreement filed herewith.
Schedule A
----------
Schedule A is amended to add the following at the end thereof:
The following table sets forth certain information concerning each of the
directors and executive officers of The Trident North Atlantic Fund ("Trident")
as of the date hereof.
Name: Niamh Meenan
(Director)
Citizenship: Irish
Business Address: Robson Rhodes
Fitzwilton House
Wilton Place
Dublin 2
Principal Occupation: Senior Manager, RSM Robson Rhodes
Name: Christopher Harwood Bernard Mills
(Director)
Citizenship: British
Business Address: J O Hambro Capital Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, NASCIT
Executive Director, American Opportunity Trust
Director, J O Hambro Capital Management Limited
Name: David Sargison
(Director)
Citizenship: British
Business Address: Caledonian Bank & Trust Limited
Caledonian House
George Town, Grand Cayman
Cayman Islands
Principal Occupation: Managing Director, Caledonian Bank & Trust
Limited
12
<PAGE>
Exhibit Index
-------------
Document Page
- -------- ----
The following documents are filed herewith:
(a) Investment Advisory Agreement dated November 5, 1998 between J O Hambro
Capital Management (Bermuda) Limited and J O Hambro & Capital
Management.
(b) Joint Filing Agreement dated as of January 13, 2000 among Holdings, J O
Hambro Capital Management, American Opportunity Trust, Trident,
Christopher Harwood Bernard Mills and Lionheart Group, Inc.
13
<PAGE>
INVESTMENT ADVISORY AGREEMENT
BETWEEN
J O HAMBRO CAPITAL MANAGEMENT (BERMUDA) LIMITED
AND
J O HAMBRO CAPITAL MANAGEMENT LIMITED
14
<PAGE>
DATED THE FIFTH DAY OF NOVEMBER 1998
J O HAMBRO CAPITAL MANAGEMENT
(BERMUDA) LIMITED
AND
J O HAMBRO CAPITAL MANAGEMENT
LIMITED
INVESTMENT ADVISORY AGREEMENT
15
<PAGE>
INDEX
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
INTERPRETATION............................................4
APPOINTMENT AND AUTHORITY OF THE INVESTMENT ADVISOR.......6
DUTIES OF THE INVESTMENT ADVISOR..........................7
REMUNERATION OF THE INVESTMENT ADVISOR....................9
PROPER INSTRUCTION.......................................10
LIABILITY OF THE INVESTMENT ADVISOR......................11
REPRESENTATIONS AND WARRANTIES...........................12
DURATION AND TERMINATION.................................12
DEALINGS OF THE INVESTMENT ADVISOR.......................13
CONFIDENTIALITY..........................................16
GENERAL PROVISIONS.......................................16
</TABLE>
16
<PAGE>
THIS AGREEMENT is made the fifth day of November 1998
BETWEEN
(1) J O HAMBRO CAPITAL MANAGEMENT (BERMUDA) LIMITED having its registered
office at Century House, 16 Par-la-Ville Road, PO Box HM 1806, Hamilton HM
HX, Bermuda (hereinafter called the "Manager");
AND
(2) J O HAMBRO CAPITAL MANAGEMENT LIMITED having its principal place of
business at 10 Park Place, London SW1, England (hereinafter called the
"Investment Advisor").
WHEREAS
(A) The Manager is a private limited liability company incorporated in Bermuda
on 28 August 1998 under registration number EC25384 engaged in the business
of funds management and related administration services to collective
investment schemes and investment funds.
(B) The Manager has been appointed Manager to The Trident North Atlantic Fund
(hereinafter called the "Company") pursuant to an agreement dated 5
November 1998.
(C) The Investment Advisor is a private limited liability company incorporated
in England on 9 October 1997. The Investment Advisor is a member of the
Investment Management Regulatory Organisation Limited ("IMRO") and, as
such, is regulated by IMRO in the conduct of its investment business.
(D) The Company is an investment company incorporated in the Cayman Islands
under the Companies Law (1998 Revision of the Cayman Islands) on 22 October
1998 under registration number 85407. The Company's registered office is
Ugland House, George Town, Grand Cayman, Cayman Islands.
(E) The Investment Advisor has agreed, at the request of the Manager with the
consent of the Company, to provide the Company with investment advisory
services and related administrative services on the terms and subject to
the conditions hereinafter contained.
(F) The Manager acknowledges that all services under this Agreement that are
provided by the Investment Advisor are provided on the basis that the
Manager is a non-private customer of the Investment Advisor. The Manager
agrees that the Investment Advisor, its representatives or employees may
call upon the Manager by telephone, or otherwise communicate orally with
the Manager, without express invitation and that the Manager will forfeit
any right conferred by section 56 of the Financial Services Act 1986 to
treat as unenforceable any investment agreement entered into in the course,
or in consequence of, such a call.
NOW IT IS HEREBY AGREED by and between the parties as follows:
17
<PAGE>
1. INTERPRETATION
---------------
1.1 Definitions
-----------
In this Agreement including the Recitals except where the context otherwise
requires the following terms have the meanings assigned to them:
"Administrator and Registrar" International Fund Services (Ireland) or
such other person from time to time
providing administration services to the
Company and/or to the Manager ono behalf of
the Company;
"Auditors" means Ernst & Young or such other firm of
chartered accountants appointed as the
auditors for the time being of the Company;
"Board" the board of directors of the Company as
constituted from time to time and any duly
appointed and constituted committee thereof;
"Commencement Date" the date of commencement of this agreement;
"Company" The Trident North Atlantic Fund, an
investment company incorporated in the
Cayman Islands;
"Confidential Information" any information relating to the portfolio,
finances, business, transactions, or affairs
of the Company;
"Custodian" Goldman Sachs International or such person
or persons from time to time providing
custodian services to the Company;
"Investment Advisory Fee" the fee payable to the Investment Advisor in
accordance with Clause 4 hereof;
"Investment Policy" the investment objective and policies of the
Company as described in the Prospectus or as
may from time to time be communicated by the
Manager to the Investment Advisor;
"Investments" any securities, instruments, obligations or
property of whatsoever nature in which the
Company is empowered to invest, pursuant to
its Memorandum and Articles of Association
and as contemplated by the Investment Policy
of the Company as specified in the
Prospectus;
18
<PAGE>
"Memorandum and Articles
of Association: the Memorandum and Articles of Association
of the Company for the time being in force
and as may be modified from time to time;
"Net Asset Value: the net asset value of the Company
calculated in the manner described in the
Prospectus and more particularly set out in
the Articles of Association;
"Payment Date" the date on which the Investment Advisory
Fee shall fall due to be paid in accordance
with the terms of Clause 4.2 hereof;
"Proper Instructions" instructions given by the Manager to the
Investment Advisor in accordance with the
provisions of Clause 5 hereof;
"Prospectus" the Prospectus for the Company to be issued
in relation to the offer for sale of Shares
and a draft of which is annexed hereto as
Annexure "A" and as may be amended or
supplemented from time to time;
"Recognized Exchange" means any regulated market or exchange
(which is an exchange within the meaning of
the law of the country concerning relating
to exchanges) in the United States of
America, the European Union, the
Organisation for Economic Co-operation and
Development or any other regulated exchange
or market;
"Share" or "Shares" a share or shares in the capital of the
Company;
"Shareholders" the holder of Shares in the Company;
"US Dollars" or "US$" US Dollars being the lawful currency of the
United States of America
1.2 Further Definitions
-------------------
In this Agreement:
(i) any reference to the singular includes reference to the plural and
vice versa and reference to the masculine gender includes reference to
the feminine and neuter genders and vice versa;
(ii) unless otherwise expressly stated to the contrary herein, any
reference to any clause, sub-clause, paragraph or sub-paragraph (as
the case may be) shall be
19
<PAGE>
deemed to be a reference to the relevant clause, sub-clause, paragraph
or sub-paragraph (as the case may be) of or to this Agreement;
(iii) any reference to persons includes reference to any legal person and to
any body corporate, unincorporated association, partnership, limited
partnership, trust, unit trust, mutual fund or other collective
investment scheme and the manager or trustee of any such collective
investment scheme;
(iv) the headings are inserted for convenience of reference only and shall
not in any way form part of or affect or be taken into account in the
construction or interpretation of any provision of this Agreement or
the Schedules hereto;
(v) words such as "hereunder", "hereto", "hereof" and "herein" and other
words commencing with "here" shall, unless otherwise expressly stated
to the contrary herein, refer to the particular clause, sub-clause,
paragraph, sub-paragraph or Schedule of or to this Agreement or, as
the context may require, to the whole of this Agreement.
2. APPOINTMENT AND AUTHORITY OF THE INVESTMENT ADVISOR
----------------------------------------------------
2.1 The Manager, with the consent of the Company, hereby appoints the
Investment Advisor and the Investment Advisor hereby agrees with effect
from the Commencement Date to act (subject always to the overall policy,
Proper Instructions and supervision of the Manager) as the adviser to the
Manager in relation to the investment, management and realization of the
cash and other assets of the Company and to act as agent for and on behalf
of the Manager in identifying, selecting, purchasing, acquiring, managing,
exchanging and disposing of Investments on behalf of the Manager in
accordance with, and in furtherance of, the Company's Investment Policy on
the terms and subject to the provisions hereof.
2.2 Subject to clause 3 hereof, and to the general supervision of the Manager,
the Investment Advisor shall have full power and discretionary authority on
behalf and for the account of the Manager to manage and invest the cash and
other assets of the Company pursuant to and in accordance with the overall
policy set by the Manager, Proper Instructions and Investment Policy and to
enter into any agreement, contract, transaction or arrangement in relation
to the purchase, acquisition, holding, exchange, variation, transfer, sale
or disposal of any Investments on behalf of the Manager and shall have full
authority to bind the Manager in connection therewith and to delegate such
authority.
2.3 The Investment Advisor may not hold any monies or investments on behalf of
the Manager or the Company. The monies and assets of the Company will be
held by the Custodian of the Company for the time being.
2.4 The Investment Advisor may effect transactions with or through the agency
of another person with whom the Investment Advisor has a soft commission
agreement. The Investment Advisor's policy relating to soft commission
agreements is stated in the Schedule which also states such agreements as
may be relevant to the Company.
20
<PAGE>
3. DUTIES OF THE INVESTMENT ADVISOR
---------------------------------
3.1 During the continuance of this Agreement, the Investment Advisor shall
render such investment advisory services and related services to the
Manager as the Manager may from time to time require in connection with the
investment of the cash and other assets of the Company and the purchase,
acquisition, holding, exchange, variation, transfer, sale or disposal
thereof an in particular, but without limiting the generality of the
foregoing, the Investment Advisor shall:
(a) advise the Manager concerning all actions which it appears to the
Investment Advisor would be advantageous to the Company in
implementing the Investment Policy;
(b) evaluate the opportunities for possible investment by the Company and
communicate its advice to the Manager;
(c) identify, select, purchase, acquire, exchange, transfer, sell or
dispose of Investments in which it may be appropriate for the Company
to invest or which it may be appropriate for the Company to sell
pursuant to and in accordance with the Property Instructions and
Investment Policy;
(d) carry out reviews of the investment portfolio of the Company quarterly
or as the Manager may from time to time reasonably require;
(e) prepare such material and provide such information (other than
accounts) for inclusion in annual or other reports of the Company as
the Manager may from time to time reasonably require including,
without limitation, the preparation and submission to the Manager, at
the end of each calendar quarter during the term of this Agreement, of
a report detailing the activities and performance of the Investment
Advisor during the preceding calendar quarter;
(f) purchase securities from or through and sell securities to or through
such persons, brokers or dealers as the Investment Advisor shall deem
appropriate in order to carry out the Investment Policy with respect
to portfolio transactions as set forth in the Prospectus and other
publicly issued document or explanatory memorandum relating to the
Company;
(g) promptly give full and adequate instructions to the Manager and the
Custodian as to deliveries of securities and payments of cash for the
account of the Company provided that such instructions shall reflect
the prevailing market practice in relation to delivery of securities
and payments of cash;
(h) assist as necessary in the valuation of investments which are not
listed, quoted or dealt in on a Recognized Exchange;
(i) advise upon the availability and appropriate source of funds to be
utilized by the Company in making distributions to Shareholders;
21
<PAGE>
(j) monitor the Investment Policy and propose to the Manager any changes
thereto which it considers necessary or desirable;
(k) determine whether to exercise any and all rights attaching to
Investments acquired on behalf of the Company and advise the Manager
in relation thereto;
(l) advise the Manager and any entity nominated by the Manager of all
rights or discretionary actions in relation to the Company's
Investments including, without limitation, voting rights and of the
date or dates by when such rights must be exercised or such action
taken;
(m) act in a manner which the Investment Advisor in good faith considers
fair and equitable in allocating investment opportunities to the
Company.
3.2 In carrying out its duties under clause 3.1 hereof, the Investment Advisor
shall comply with all reasonable Proper Instructions and shall have due
regard to and comply with:
(a) overall policies and directions of the Manager;
(b) the primary objectives of the Investment Policy;
(c) any restrictions for the time being contained in any statements of
Investment Policy;
(d) any investment restrictions specified in the Prospectus;
(e) the terms of the Prospectus and any other offering circular or other
similar document issued by or on behalf of the Company;
(f) the provisions of applicable laws, regulations and rules in any
country in which the Investment Advisor invests on behalf of the
Manager;
(g) the terms of any exchange control consent and any other present or
future government or regulatory consents of any relevant jurisdiction
in relation to the Company and its assets;
(h) any other matter to which a prudent Investment Advisor or manager to
any investment portfolio should reasonably pay regard in the proper
discharge of its duties.
3.3 In carrying out its duties hereunder, the Investment Advisor may with the
approval of the Manager obtain and pay for such expert or professional
advice or services as may be necessary or desirable for the performance of
its duties under this Agreement and in particular, but without prejudice to
the generality of the foregoing, the Investment Advisor may refer any legal
question to the Company's legal advisers, and may relay and act on any
expert or professional opinion or advice, including any legal opinion or
advice given by the Company's legal advisers, and in the absence of
negligence, wilful
22
<PAGE>
misconduct, default or bad faith, the Investment Advisor shall not be
responsible for any loss or damage occasioned by its so acting.
4. REMUNERATION OF THE INVESTMENT ADVISOR
---------------------------------------
4.1 The Manager shall pay the Investment Advisor an annual fee in an amount
equal to 1% of the Net Asset Value of the Company (less the normal running
expenses incurred by the Manager in the management of the Company and less
any rebate, commission or fee payable by the Manager to introducers,
distributors or other third parties) or such other amount as may be agreed
from time to time between the parties payable monthly in arrears at the end
of each month.
The Manager shall also pay the Investment Advisor an additional fee (on an
annual basis if any such fee is due) based upon the realized and unrealized
profits of Shareholders in the Company. This additional fee will be paid
by the Manager to the Investment Advisor within thirty days of the receipt
of any performance fee by the Manager from the Company. The additional fee
payable to the Investment Advisor shall be calculated at 15% of all sums
received by the Manager from the Company as performance fees (the detailed
performance fee calculation being set out in the Prospectus) less that part
of the performance fees paid out by the Manager to introducers,
distributors or other third parties (other than employees of the Investment
Advisor or any trust or trusts representing such persons) or such other
amount as may be agreed from time to time between the parties.
4.2 The Investment Advisory Fees shall accrue from day to day and shall be
payable proportionately for any portion of a year in which this Agreement
terminates or is terminated.
4.3 In the event of any dispute arising as to the calculation of the Investment
Advisory Fees, the matter shall be referred to the Auditors for
determination and their decision shall be that of an expert and not an
arbitrator and shall be final and binding upon the parties in the absence
of manifest error.
4.4 In addition to payment of the Investment Advisory Fees to the Investment
Advisor, the Manager shall be responsible for an shall discharge or
reimburse the Investment Advisor for all the out-of-pocket costs and
expenses suffered or incurred by the Investment Advisor (or by any person
on its behalf and charged to it) in the performance of its duties
hereunder.
4.5 Any value added tax applicable to any fees or other amounts payable to the
Investment Advisor hereunder shall be borne by the Manager.
5. PROPER INSTRUCTIONS
--------------------
Any instruction to be given by the Manager hereunder shall be written,
cabled, telefaxed or telexed instructions signed by such one or more person
or persons as the Manager shall from time to time have authorized to give
the particular class of
23
<PAGE>
instructions in question. Different persons may be authorized to give
instructions for different purposes. A certified coy of a resolution of the
board of directors of the Manager may be received and accepted by the
Investment Advisor as conclusive evidence of the authority of any such
person to act any may be considered as in full force and effect until
receipt of a written notice to the contrary.
6. LIABILITY OF THE INVESTMENT ADVISOR
------------------------------------
6.1 The Investment Advisor shall not be liable to the Manager for any loss or
damage suffered or incurred arising out of the performance by the
Investment Advisor of its duties hereunder unless such loss or damage arose
out of or in connection with the negligence, wilful default, fraud or bad
faith of or by the Investment Advisor in the performance of its duties
hereunder and the Manager shall indemnify and keep indemnified and hold
harmless the Investment Advisor from and against any liability to any third
party arising in connection with the performance of its services to the
Manager hereunder in the absence of any such negligence, wilful default,
fraud or bad faith in the performance of its duties or as otherwise may be
required by law.
6.2 The Investment Advisor shall exercise the due care of a prudent
professional Investment Advisor in the performance of its duties hereunder
and shall use its best efforts, skill and judgment and all due care in
performing its duties and obligations and exercising its rights and
authorities hereunder and shall indemnify and keep indemnified and hold
harmless the Company, the Manager and each of the Shareholders, directors
and officers of the Company from and against all actions, proceedings,
claims, demands, liabilities, losses, damages, costs and expenses
(including legal and professional fees and expenses arising therefrom or
incidental thereto) which maybe made or brought against or directly or
indirectly suffered or incurred by them or any of them arising out of or in
connection with any breach by the Investment Advisor of the terms of this
Agreement (including, without limitation, as a result of the Investment
Advisor acting outside the scope of the authority granted to it by the
Manager hereunder) or any negligence, wilful default, fraud or bad faith of
or by the Investment Advisor in the performance of its duties hereunder
provided that for the avoidance of any doubt the Investment Advisor shall
not be liable for any decline in the value of the assets of the Company or
any part thereof to the extent that such decline results from any
investment decision made by the Investment Advisor in good faith unless
such decision was made negligently.
6.3 The Investment Advisor shall be entitled to rely absolutely upon and shall
not incur any liability in respect of any action taken or thing suffered in
good faith in reliance upon any paper or document believed to be genuine
and to have been sealed or signed by the proper parties or be in any way
liable for any forged or unauthorized signature or seal affixed to any
document and in discharging its duties hereunder the Investment Advisor
may, in the absence of manifest error, rely without enquiry upon all
information supplied to it by the Manager or any of its directors,
officers, servants, employees or agents. The Investment Advisor may accept
as sufficient evidence of any instruction, notice or other communication
given to it by the Manager or any of its directors, officers, servants,
employees or agents any document or paper signed or purporting to
24
<PAGE>
be signed on behalf of the Manager by such person or persons whose
signature the Investment Advisor is for the time being authorized to
accept.
6.4 The Investment Advisor shall send to the manager as soon as possible all
notices of claims, summonses or writs which it receives from third parties
in relation to the affairs of the company and no liability of any kind
shall be admitted and no undertaking given nor shall any offer, promise or
payment be made or legal expenses incurred by the investment advisor in
relation to any such claim, summons or writ without the written consent of
the manager which shall be entitled, if it so desires, to take over or
nominate another party to take over and conduct the defense of any action
or to prosecute any claim for indemnity or damages or otherwise against any
third party.
6.5 The Investment Advisor shall not be required or entitled to take any legal
action on behalf of the Manager and/or the Company or otherwise in respect
of its services hereunder other than on such terms as the Investment
Advisor may in its absolute discretion agree and unless fully indemnified
to its reasonable satisfaction for all costs and liabilities in connection
therewith.
6.6 Nothing in this Agreement shall exclude or restrict any liabilities of the
Investment Advisor to the Manager pursuant to the Financial Services Act
1996 or the Rules of IMRO.
7. REPRESENTATIONS AND WARRANTIES
-------------------------------
Each of the parties hereto hereby represents and warrants to the other
party hereto that it has full legal right and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
terms hereof.
8. DURATION AND TERMINATION
-------------------------
8.1 This Agreement shall continue in full force and effect for an initial
period of two years from the Commencement Date and thereafter until
terminated pursuant to clauses 8.2 and 8.3 below.
8.2 Either the Investment Advisor or the Manager may terminate this Agreement
after the initial period of two years upon one hundred and eighty (180)
days notice in writing to the other party hereto, such notice expiring on
or after the second anniversary of the Commencement Date.
8.3 Either the Investment Advisor or the Manager may terminate this Agreement
at any time forthwith by notice in writing to the other party hereto if
such other party ("Defaulting Party") shall at any time during the
continuance of this Agreement:
(i) commit any material breach of this Agreement or commit persistent
breaches of this Agreement which is or are either incapable of remedy
or have not been remedied within thirty (30) days of the other party
serving notice upon the Defaulting Party requiring it to remedy same;
25
<PAGE>
(ii) be unable to pay its debts as they fall due or otherwise become
insolvent or enter into any composition or arrangement with or for the
benefit of its creditors or any class thereof;
(iii) be the subject of any petition for the appointment of an examiner,
administrator, trustee, official assignee or similar officer to it or
in respect of its affairs or assets;
(iv) have a receiver appointed over all or any substantial part of its
undertaking, assets or revenues;
(v) be the subject of an effective resolution for its winding up except in
relation to a voluntary winding up for the purposes of reconstruction
or amalgamation upon terms previously approved in writing by the other
party;
(vi) be the subject of a court order for its winding up or liquidation.
8.4 On the termination of this Agreement:
(i) the Investment Advisor shall be entitled to receive all fees and other
moneys accrued and due up to the date of such termination but shall
not be entitled to compensation in respect of such termination;
(ii) the Investment Advisor shall forthwith deliver to the Manager or as it
shall direct all correspondence and records of all and every
description relating to the affairs of the Company which are in the
Investment Advisor's possession or under the Investment Advisor's
control and shall not be entitled to any lien in respect of any of the
foregoing.
8.5 The termination of this Agreement shall be without prejudice to any rights
that may have accrued hereunder to either party hereto against the other
party hereto before such termination.
9. DEALINGS OF THE INVESTMENT ADVISOR
-----------------------------------
9.1 Subject to the investment policy and resolutions contained in the
Prospectus, nothing in this Agreement shall prevent the Investment Advisor
whether as principal or agent or otherwise from:
(i) acquiring, holding, disposing of or otherwise dealing with Shares of
the Company;
(ii) selling or disposing of Investments to, purchasing or acquiring
Investments from or vesting Investments in the Company or its nominee
for the account of the Company provided that such transactions are
carried out as if effected on normal commercial terms negotiated at
arm's length;
(iii) entering into any transaction whatsoever with the Company or with any
Shareholders or any person, any of whose securities are held by, or
for the account
26
<PAGE>
of, or otherwise connected with the Company or investing directly or
indirectly in any project or enterprise in which the Company invests
or which has been recommended by the Investment Advisor for investment
by the Company (whether or not the Company makes such investment) or
which the Investment Advisor has not so recommended, or has advised
the Manager is not suitable for investment by the Company provided
that such transactions are carried out as if effected on normal
commercial terms negotiated at arm's length;
(iv) investing or participating in or providing finance to any person,
company, partnership, joint venture, trust, mutual fund or other
collective investment fund of whatever nature or from investing or
participating in or financing the acquisition or maintenance of any
property, assets, securities or instruments of whatsoever nature in
which the Company may from time to time invest or participate or
provide finance to;
(v) purchasing, acquiring, financing, holding, selling, disposing of or
dealing in any Investments upon its own account or principal or as
agent for any other person notwithstanding that the same or similar
Investments may be held or for the account or otherwise connected with
the Company;
(vi) contracting or entering into any transactions or contract of
whatsoever nature with the Company or its or their nominee for the
account of the Company or with the Shareholders or any company or body
any of whose securities are held by or for the account of or otherwise
connected with the Company or from being interested in any such
transaction provided that such transactions are carried out as if
effected on normal commercial terms negotiated at arm's length and the
Investment Advisor shall be entitled to charge and retain for its own
benefit all such fees, commissions, profit or other benefit arising
out of or in connection with any of the above transactions and shall
not be obliged to account to the Company or to any Shareholders or to
any other person in respect thereof provided that such fees,
commissions, profit or other benefit are on normal commercial terms as
if negotiated at arm's length.
9.2 Nothing in this Agreement shall prevent the Investment Advisor from acting
as investment manager and/or investment adviser or in any other capacity
whatsoever for any other person on such terms as the Investment Advisor may
arrange so long as its services to the Manager hereunder are not materially
impaired thereby and the Investment Advisor shall not be liable to account
for any profit earned or other benefit arising therefrom. The Investment
Advisor shall not be deemed to be affected with notice of or to be under
any duty to disclose to the Manager any fact or thing which may come to the
notice of the Investment Advisor, or any director, officer, servant,
employee or agent of the Investment Advisor, in the course of or in
connection with the Investment Advisor rendering such services to any other
person or in any manner whatsoever otherwise than in the course of carry
out its duties hereunder.
9.3 Nothing in this Agreement shall render the Investment Advisor liable to
account for any profit earned or other benefit arising from any advice
given by the Investment Advisor to any other person, company, partnership,
joint venture, mutual fund or collective
27
<PAGE>
investment fund or trustee or manager thereof in relation to the
acquisition, holding, financing, sale or disposal of any property, assets,
securities or instruments of whatsoever nature including, without
limitation, any property, assets, securities and instruments of a type
acquired, held, financed, sold or disposed of by the Company.
9.4 Subject to Clause 6 hereof, nothing in this Agreement shall render the
Investment Advisor liable for any loss or damage suffered or incurred by
the Company or by any Shareholders or other persons arising out of or in
connection with any decision or action by the Investment Advisor to offer
to any other person, or arising out of or in connection with any failure by
the Investment Advisor to offer to the Manager or to advise the Manager, on
behalf of the Company of, any opportunity to purchase, acquire, invest or
participate in, hold, finance, sell or dispose of any Investments. The
Investment Advisor shall not be liable to account to the Manager for any
fees, commissions, profits or other benefits arising out of or in
connection with any such transaction.
9.5 It is hereby acknowledged and agreed that directors, officers, servants,
employees and agents of and shareholders in the Investment Advisor are or
may be from time to time interested in the Company as officers, servants,
employees, agents, shareholders or otherwise and that officers, servants,
employees and agents of or Shareholders in the Company are or may from time
to time be interested in the Investment Advisor as directors, officers,
servants, employees, agents or shareholders or otherwise and it is hereby
agreed and acknowledged that no person so interested shall be liable to
account to any other person for any profit or benefit arising out of or in
connection with any such interest.
9.6 The Investment Advisor may not deal in the assets of the Company unless
such transactions are carried out as if effected on normal commercial terms
negotiated at arm's length.
10. CONFIDENTIALITY
----------------
10.1 The Investment Advisor hereby covenants with and undertakes to the Manager
that, save as may be required by law or by any regulatory authority or
agency or as may otherwise be contemplated by this Agreement, it shall keep
secret and confidential and shall not disclose to any person any
Confidential Information PROVIDED HOWEVER that it shall not be required to
keep secret and confidential, Confidential Information which has properly
entered the public domain otherwise than through the default of the
Investment Advisor.
10.2 No public announcement shall be made or circular, notice or advertisement
issued in connection with the subject matter of this Agreement by either of
the parties hereto without the prior written approval of the other party
hereto.
11. GENERAL PROVISIONS
-------------------
11.1 Waiver
------
28
<PAGE>
A waiver by any party of any breach of any of the terms, provisions or
conditions of this Agreement or the acquiescence of such party in any act
(whether commission or omission) which but for such acquiescence would be a
breach as aforesaid shall not constitute a general waiver of such term
provision or condition or of any subsequent act contrary thereto. Any
liability of any party under the provisions of this Agreement may in whole
or in part be released compounded or compromised by such party in its
absolute discretion as regards any other party under such liability without
in any way prejudicing or affecting its rights against the remaining
parties under the same or a like liability whether joint and several or
otherwise.
11.2 Counterparts
------------
This Agreement may be executed in any number of counterparts by the parties
hereto on separate counterparts each of which when executed and delivered
shall constitute an original and all such counterparts together
constituting but one and the same instrument.
11.3 Variation of Terms of Agreements
--------------------------------
This Agreement shall be capable of variation by agreement in writing
between the Manager and the Investment Advisor.
11.4 Assignments
-----------
This Agreement shall not be assignable in whole or in part by any of the
parties hereto without the prior consent in writing of the other parties
hereto.
11.5 No Partnership
--------------
This Agreement shall not be deemed to create any partnership between the
Manager and the Investment Advisor.
11.6 Notices
-------
Every notice to be given hereunder shall be in writing and shall be
expressed to be a notice given hereunder and shall be deemed duly given:
(i) upon being left on a business day at the address set out in this
Agreement of the party to whom it is being given or at such other
address as such party shall have previously communicated by notice to
the party giving such first mentioned notice; or
(ii) upon receipt if posted by prepaid registered post to the address set
out in this Agreement of the party to whom it is being posted, or such
other address as such party shall have previously communicated by
notice to the party giving such first mentioned notice; or
29
<PAGE>
(iii) upon receipt if transmitted on a business day by facsimile to the
correct facsimile number of the party to whom it is being transmitted.
Provided that: where the notice has been transmitted by facsimile the
party who has transmitted it shall (without prejudice to the validity of
the notice given) send a copy of the notice by prepaid registered post to
the party to whom it has been transmitted to that party's address set out
in this Agreement or to such other address as such party shall have
previously communicated by notice to the party giving such first mentioned
notice.
11.7 Severability
------------
Each of the provisions of this Agreement are separate and severable and
enforceable accordingly and if at any time any provision is adjudged by any
court of competent jurisdiction to be void or unenforceable the validity,
legality and enforceability of the remaining provisions hereof shall not in
any way be affected or impaired thereby.
11.8 Governing Law and Jurisdiction
------------------------------
11.8.1 This Agreement shall in all respects (including the formation and
performance thereunder) be governed by and construed in accordance
with the laws of England.
11.8.2 The manager and the Investment Advisor hereby irrevocably submit to
the non-exclusive jurisdiction of the courts of England provided
always that any party shall be at liberty to take proceedings
against any other party in any other relevant jurisdiction.
11.9 Complaints
----------
Any complaints from the Manager to the Investment Advisor should be
addressed to the Compliance Officer of the Investment Advisor. In
addition, the Manager has the right to make complaints directly to IMRO and
the right to make complaints directly to the Investment Ombudsman.
30
<PAGE>
IN WITNESS whereof this Agreement has been entered by the parties hereto on the
date first herein written.
Signed: /s/ [Signature Appears Here]
---------------------------------------
Duly authorized officer on behalf of
J O Hambro Capital Management
(Bermuda) Limited
In presence of:
Witness Name: _______________________________________
Witness Signature: /s/ [Signature Appears Here]
_______________________________________
Witness Address: _______________________________________
---------------------------------------
---------------------------------------
Witness Occupation: _______________________________________
Signed: /s/ [Signature Appears Here]
---------------------------------------
Duly authorized officer on behalf of
J O Hambro Capital Management
Limited
In the presence of:
Witness Name: _______________________________________
Witness Signature: /s/ [Signature Appears Here]
---------------------------------------
Witness Address: _______________________________________
---------------------------------------
---------------------------------------
Witness Occupation: _______________________________________
31
<PAGE>
SCHEDULE
Before the Investment Advisor effects any transaction with or through the agency
of another person with whom the Investment Advisor has a soft commission
agreement, the Investment Advisor will make the prior disclosure required by
Rule 1.7(1)(3) of Chapter 11 of the IMRO Rules.
The Investment Advisor has entered into agreements with each of the Loewenbaum &
Company and Raymond James & Associates, Inc. (US brokers) whereby they have
agreed to contribute towards the costs of the Investment Advisor's on-line
Reuters and First Call computerized analysis services. It is the Investment
Advisor's policy to enter into softing arrangements where it believes that such
arrangements will benefit its clients.
32
<PAGE>
JOINT FILING AGREEMENT
33
<PAGE>
JOINT FILING AGREEMENT
The undersigned hereby agree that Amendment No. 4 to the Statement on Schedule
13D dated January 4, 2000 with respect to the shares of common stock, $0.01 par
value, of Barringer Technologies Inc. and any further amendments thereto
executed by each or any of us shall be filed on behalf of each of us pursuant to
and in accordance with the provisions of Rule 13d-1(f) under the Securities
Exchange Act of 1934, as amended.
This Agreement may be executed in separate counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
Date: January 13, 2000 LIONHEART GROUP, INC.
By: /s/ C. D. Soukup
----------------------------------------------
Name: C. D. Soukup
Title: President
Date: January 13, 2000 J O HAMBRO CAPITAL MANAGEMENT
(HOLDINGS) LIMITED
By: /s/ Christopher Mills
---------------------------------------------
Name: Christopher Mills
Title: Director
Date: January 13, 2000 J O HAMBRO CAPITAL MANAGEMENT
LIMITED
By: /s/ R. G. Barrett
-----------------------------------------------
Name: R. G. Barrett
Title: Director
Date: January 13, 2000 AMERICAN OPPORTUNITY TRUST PLC
By: J O Hambro Capital Management Limited,
Its investment advisor
By: /s/ R. G. Barrett
-----------------------------------------------
Name: R. G. Barrett
Title: Director
34
<PAGE>
Date: January 13, 2000 CHRISTOPHER MILLS
/s/ Christopher Mills
-----------------------------------------------
Date: January 13, 2000 THE TRIDENT NORTH ATLANTIC FUND
By: J O Hambro Capital Management Limited,
Its investment advisor
By: /s/ R. G. Barrett
-----------------------------------------------
Name: R. G. Barrett
Title: Director
35
