UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)*
HARVARD INDUSTRIES, INC.
----------------------------------------------------------------
(Name of issuer)
Common Stock, par value $.01 per share
----------------------------------------------------------------
(Title of class of securities)
417434305
-----------------------------
(CUSIP number)
R.C.O. Hellyer
J O Hambro & Company 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)
March 17, 1997
------------------------------------------------------
(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(b)(3) or (4), check the following box .
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) 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.
Page 1 of 18 Pages
<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).
Page 2 of 18 Pages
<PAGE>
Page 3 of 18 Pages
<PAGE>
13D
CUSIP No. 417434305
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
J O Hambro & Partners Limited
No S.S. or IRS Identification Number
(a)
2. 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 8. SHARED VOTING POWER
BENEFICIALLY 544,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON 544,000
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
544,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
14. TYPE OF REPORTING PERSON*
IA, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 18 Pages
<PAGE>
13D
CUSIP No. 417434305
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Growth Financial Services Limited
No S.S. or IRS Identification Number
(a)
2. 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 8. SHARED VOTING POWER
BENEFICIALLY 310,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON 310,000
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
310,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.4%
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 5 of 18 Pages
<PAGE>
13D
CUSIP No. 417434305
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
North Atlantic Smaller Companies Investment Trust plc
No S.S. or IRS Identification Number
(a)
2. 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 8. SHARED VOTING POWER
BENEFICIALLY 310,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON 310,000
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
310,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.4%
14. TYPE OF REPORTING PERSON*
IV, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 6 of 18 Pages
<PAGE>
13D
CUSIP No. 417434305
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Christopher Harwood Bernard Mills
No S.S. or IRS Identification Number
(a)
2. 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 8. SHARED VOTING POWER
BENEFICIALLY 544,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON 544,000
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
544,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
14. TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 7 of 18 Pages
<PAGE>
13D
CUSIP No. 417434305
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
J O Hambro Investment Management Limited
No S.S. or IRS Identification Number
(a)
2. 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 8. SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON 0
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
14. TYPE OF REPORTING PERSON*
IA, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 8 of 18 Pages
<PAGE>
13D
CUSIP No. 417434305
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
J O Hambro & Company Limited
No S.S. or IRS Identification Number
(a)
2. 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 8. SHARED VOTING POWER
BENEFICIALLY 544,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON 544,000
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
544,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
14. TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 9 of 18 Pages
<PAGE>
13D
CUSIP No. 417434305
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
J O Hambro Asset Management Limited
No S.S. or IRS Identification Number
(a)
2. 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 8. SHARED VOTING POWER
BENEFICIALLY 544,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON 544,000
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
544,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
14. TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 10 of 18 Pages
<PAGE>
13D
CUSIP No. 417434305
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
American Opportunity Trust plc
No S.S. or IRS Identification Number
(a)
2. 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 8. SHARED VOTING POWER
BENEFICIALLY 200,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH 0
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON 200,000
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
200,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8%
14. TYPE OF REPORTING PERSON*
IV, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
AMENDMENT NO. 3 TO
STATEMENT ON SCHEDULE 13D
This Amendment No. 3 to Statement on Schedule 13D (the "Amendment")
amends and restates the Statement on Schedule 13D (the "Schedule 13D") filed on
September 19, 1994 with the Securities and Exchange Commission (the "SEC"), as
amended by Amendment No. 1 filed with the SEC on October 12, 1994 and as further
amended by Amendment No. 2 filed with the SEC on October 26, 1994.
ITEM 1. SECURITY AND ISSUER
Item 1 is amended and restated in its entirety as follows:
This statement relates to the Common Stock, par value $.01 per share
(the "Common Stock"), of Harvard Industries, Inc., a Florida corporation (the
"Company"), that has its principal executive offices at 2502 N. Rocky Point
Drive, Suite 960, Tampa, Florida 33607.
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 eight persons, who
are collectively referred to as the "Filing Parties":
1. J O Hambro & Partners Limited ("J O Hambro & Partners") 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 & Partners is principally engaged in the business of investment
management and advising. It serves as co-investment adviser to NASCIT
and American Opportunity Trust and as investment adviser to Oryx and
various private clients.
2. Growth Financial Services Limited ("GFS"), formerly named Growth
Investment Management Limited, is a corporation organized under the
laws of England with its principal office at 77 Middle Street,
Brockham, Surrey RH3 7HL England and with its principal business at 10
Park Place, London SW1A 1LP England. GFS has undertaken to provide the
services of Christopher Harwood Bernard Mills to NASCIT.
3. North Atlantic Smaller Companies Investment Trust plc ("NASCIT"),
formerly named Consolidated Venture 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. NASCIT is a
publicly-held investment trust company. Christopher Harwood Bernard
Mills and J O Hambro & Partners serve as co-investment advisers to
NASCIT.
Page 11 of 18 Pages
<PAGE>
4. Christopher Harwood Bernard Mills is a British citizen whose business
address is 10 Park Place, London SW1A 1LP England. His principal
employment is service as executive director of NASCIT and American
Opportunity Trust, as a director of J O Hambro & Partners, and as
co-investment adviser to NASCIT and American Opportunity Trust.
5. J O Hambro Asset Management Limited ("J O Hambro Asset Management") 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 Asset Management functions as an intermediate holding company
for J O Hambro & Partners and J O Hambro Investment.
6. J O Hambro & Company Limited ("J O Hambro & Company") 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 &
Company functions as the ultimate holding company for J O Hambro &
Partners.
7. J O Hambro Investment Management Limited ("J O Hambro Investment") 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 Investment is principally engaged in the business of
discretionary investment management of private client portfolios.
8. 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 & Partners serve as co-investment advisers to
American Opportunity Trust.
II. Control Relationships:
J O Hambro & Partners is a majority-owned subsidiary of J O Hambro
Asset Management, which is in turn a wholly-owned subsidiary of J O Hambro &
Company.
J O Hambro Investment is a majority-owned subsidiary of J O Hambro
Asset Management.
Christopher Harwood Bernard Mills owns 99% of the equity of GFS, and
serves as a director of J O Hambro & Partners and as executive director of
NASCIT and American Opportunity Trust.
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.
2(d). Criminal Proceedings
Page 12 of 18 Pages
<PAGE>
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).
2(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.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is amended and restated in its entirety as follows:
The Filing Parties used their working capital funds to purchase the
shares of Common Stock to which this statement relates (the "Shares").
The amount of funds used to date to acquire the Shares is
approximately $6,743,082.50 (exclusive of brokerage fees and commissions).
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is amended and restated in its entirety as follows:
The shares of Common Stock of the Company held directly or indirectly
by the Filing Parties are held for the purpose of investment. Depending upon the
Company's business and prospects, and upon future developments (including, but
not limited to, performance of the Common Stock in the market, availability of
funds, alternative uses of funds, money and stock market conditions and general
economic conditions), the Filing Parties or any one of them (or other persons
who may be deemed to be affiliated with one or more of the Filing Parties) may
from time to time purchase Common Stock, dispose of all or a portion of the
Common Stock each holds, or cease buying or selling Common Stock. Any additional
purchases of the Common Stock may be in the open market or in privately
negotiated transactions, or otherwise.
Except as described in this Item 4, as of the date of this statement
none of the Filing Parties has formulated any plans or proposals that relate to
or would result in: (a) the acquisition by any person of additional securities
of the Company, or the disposition of securities of the Company; (b) an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation of the Company or its subsidiaries, if any; (c) a sale or transfer
of a material amount of assets of the Company or its subsidiaries, if any; (d)
any change in the present board of directors or management of the Company,
including any change in the number or term of
Page 13 of 18 Pages
<PAGE>
directors or the filling of any existing vacancies on the board; (e) any
material change in the present capitalization or dividend policy of the Company;
(f) any other material change in the Company's business or corporate structure;
(g) changes in the Company's charter or bylaws or other actions that may impede
the acquisition of control of the Company by any person; (h) causing a class of
securities of the Company to be delisted from a national securities exchange or
to cease to be authorized to be quoted in an interdealer quotation system of a
registered national securities association; (i) causing a class of equity
securities of the Company to become eligible for termination of registration
pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) any
action similar to those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 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 by each of the Filing Parties are as
follows:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Number of Number of
Number 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*
J O Hambro 544,000 0 544,000 544,000 7.8%
& Partners
J O Hambro 544,000 0 544,000 544,000 7.8%
& Company
J O Hambro Asset 544,000 0 544,000 544,000 7.8%
Management
J O Hambro 0 0 0 0 0%
Investment
NASCIT 310,000 0 310,000 310,000 4.4%
American 200,000 0 200,000 200,000 2.8%
Opportunity Trust
GFS 310,000 0 310,000 310,000 4.4%
Christopher Mills 544,000 0 544,000 544,000 7.8%
- -------------
* Based on 7,017,767 shares of Common Stock, par value $.01 per share
outstanding as of February 1, 1997, which is based on information reported in
the Company's Quarterly Report on Form 10-Q for the quarter ended December 31,
1996.
</TABLE>
(c) In the 60 days prior to the date of the filing of this Statement,
the Filing Parties effected no transactions in the Common Stock other than those
set forth in the following table:
Page 14 of 18 Pages
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
No. of Price
Date Filing Party Shares (US$) Broker
1/30/97 J O Hambro & Partners 1,250 4.00 Wheatfirst
(on behalf of Sannafi Limited)
1/30/97 J O Hambro & Partners 6,250 4.00 Wheatfirst
(on behalf of Seaway Limited)
1/30/97 J O Hambro & Partners 5,000 4.00 Wheatfirst
(on behalf of Lord Stevens of
Ludgate Pension Fund)
3/7/97 J O Hambro & Partners 1,500 2.00 Wheatfirst
(on behalf of Sannafi Limited)
3/7/97 J O Hambro & Partners 6,250 2.00 Wheatfirst
(on behalf of Seaway Limited)
3/7/97 J O Hambro & Partners 4,750 2.00 Wheatfirst
(on behalf of Lord Stevens of
Ludgate Pension Fund)
3/14/97 J O Hambro & Partners 3,250 1.1946 Wheatfirst
(on behalf of Sannafi Limited)
3/14/97 J O Hambro & Partners 14,750 1.1946 Wheatfirst
(on behalf of Seaway Limited)
3/14/97 J O Hambro & Partners 10,500 1.1946 Wheatfirst
(on behalf of Lord Stevens of
Ludgate Pension Fund)
3/17/97 J O Hambro & Partners 2,000 1.1875 Wheatfirst
(on behalf of Sannafi Limited)
3/17/97 J O Hambro & Partners 7,750 1.1875 Wheatfirst
(on behalf of Seaway Limited)
3/17/97 J O Hambro & Partners 5,750 1.1875 Wheatfirst
(on behalf of Lord Stevens of
Ludgate Pension Fund)
3/17/97 Christopher Mills 15,000 1.1875 Wheatfirst
3/17/97 J O Hambro & Partners 15,000 1.1875 Wheatfirst
(on behalf of Eveswise
Retirement Fund)
3/21/97 J O Hambro & Partners 4,000 1.1468 Wheatfirst
(on behalf of Lord Stevens of
Ludgate Pension Fund)
</TABLE>
All of the above transactions were effected in the open market and were
sales, except for the 3/17/97 Eveswise Retirement Fund transaction, which was a
purchase.
(d) The private clients of J O Hambro & Partners have an economic
interest in the dividends from, and the proceeds of, sales of Common Stock owned
by J O Hambro & Partners. The shareholders of NASCIT and American Opportunity
Trust have an economic interest in the dividends from, and the proceeds of,
sales of Common Stock owned by NASCIT and American Opportunity Trust,
respectively.
Page 15 of 18 Pages
<PAGE>
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 is amended and restated in its entirety as follows:
As co-investment advisers to NASCIT, Christopher Harwood Bernard Mills
and J O Hambro & Partners share the right to transfer and vote the shares of
Common Stock of the Company pursuant to an agreement entered into among NASCIT,
GFS and Christopher Harwood Bernard Mills and an agreement entered into between
NASCIT and J O Hambro & Partners, each dated as of January 7, 1993.
As co-investment advisers to American Opportunity Trust, Christopher
Harwood Bernard Mills and J O Hambro & Partners share the right to transfer and
vote the shares of Common Stock of the Company pursuant to an agreement dated as
of January 7, 1993 between American Opportunity Trust and J O Hambro & Partners.
As investment manager for private clients Sannafi Limited, Seaway
Limited, Lord Stevens of Ludgate Pension Fund and Eveswise Retirement Fund, J O
Hambro & Partners and Christopher Harwood Bernard Mills, in his capacity as
portfolio manager, have the right to transfer and vote the shares of Common
Stock of the Company pursuant to either agreements or arrangements entered into
with such private clients.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is amended and restated in its entirety as follows:
Unless otherwise indicated, the following documents are filed herewith.
(a) Secondment Services Agreement dated as of January 7, 1993
between NASCIT, GFS and Christopher Mills**;
(b) Administration, Management and Custody Agreement dated as of
January 7, 1993 between NASCIT and J O Hambro & Partners;**
(c) Investment Management Agreement dated as of February 29, 1996
between J O Hambro & Partners and Seaway Limited;
(d) Investment Management Agreement dated as of February 9, 1996
between J O Hambro & Partners and Lord Stevens of Ludgate
Pension Fund;
(e) Investment Management Agreement dated as of February 28, 1997
between J O Hambro & Partners and Eveswise Retirement Fund;
(f) Administration, Management and Custody Agreement dated as of
January 7, 1993 between J O Hambro & Partners and American
Opportunity Trust**; and
(g) Joint Filing Agreement dated September 15, 1994 between and
among NASCIT, GFS, J O Hambro & Partners, J O Hambro Asset
Management, J O
Page 16 of 18 Pages
<PAGE>
Hambro Investment, J O Hambro & Company, American Opportunity
Trust, Oryx, Consulta and Christopher Harwood Bernard Mills.**
- ----------------------
** Previously filed
Page 17 of 18 Pages
<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: 21 March 1997 J O HAMBRO & PARTNERS LIMITED
By:/s/RCO HELLYER
_________________________
Name: RCO Hellyer
Title: Director
Executed on behalf of the
parties hereto pursuant to
the previously filed Joint
Filing Agreement.
Page 18 of 18 Pages
<PAGE>
Schedule A
The following table sets forth certain information concerning each of the
directors and executive officers of J O Hambro & Company Limited ("J O Hambro &
Company") as of the date hereof.
Name: Rupert Nicholas Hambro
(Chairman)
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Chairman, J O Hambro & Company
Name: Richard Alexander Hambro
(Director)
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Chairman, J O Hambro Investment
Management Limited<F1>
Director, J O Hambro & Company
Name: James Daryl Hambro
(Managing Director)
Citizenship: British
- -------
[FN]
<F1> J O Hambro Investment Management Limited is principally engaged in the
investment advisory business and has its principal business and office
at 10 Park Place, London SW1A 1LP England.
[/FN]
-19-
<PAGE>
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro & Company
Managing Director, J O Hambro & Partners
Name: Richard David Christopher Brooke
(Director)
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Director, J O Hambro & Company
Chairman, NASCIT
Name: Robert Charles Orlando Hellyer
(Executive Director)
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro & Company
Executive Director, J O Hambro & Partners
Executive Director, J O Hambro Investment
Management Limited
Executive Director, J O Hambro Asset
Management
Name: David Frank Chaplin
(Director)
Citizenship: British
-20-
<PAGE>
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro Investment
Management Limited
-21-
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of J O Hambro Asset Management Limited ("J O
Hambro Asset Management") as of the date hereof.
Name: Richard Alexander Hambro
(Managing Director)
Citizenship: British
Business Address: J O Hambro Asset Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro Asset
Management
Chairman, J O Hambro Investment Management
Limited
Director, J O Hambro & Company
Name: Robert Charles Orlando Hellyer
(Executive Director)
Citizenship: British
Business Address: J O Hambro Asset Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Asset
Management
Executive Director, J O Hambro & Company
Executive Director, J O Hambro Investment
Management Limited
Executive Director, J O Hambro & Partners
-22-
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of J O Hambro & Partners Limited ("J O Hambro &
Partners") as of the date hereof.
Name: James Daryl Hambro
(Managing Director)
Citizenship: British
Business Address: J O Hambro & Partners Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro & Partners
Managing Director, J O Hambro & Company
Name: Robert Charles Orlando Hellyer
(Executive Director)
Citizenship: British
Business Address: J O Hambro & Partners Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro & Partners
Executive Director, J O Hambro Asset
Management
Executive Director, J O Hambro Investment
Management Limited
Executive Director, J O Hambro & Company
Name: Christopher Harwood Bernard Mills
(Director)
Citizenship: British
Business Address: 10 Park Place
London SW1A 1LP
England
-23-
<PAGE>
Principal Occupation: Executive Director, NASCIT
Executive Director, American Opportunity Trust
Director, J O Hambro & Partners
Director, Oryx
Name: Claudia Margaret Cecil Perkins
(Director)
Citizenship: British
Business Address: J O Hambro & Partners Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Director, J O Hambro & Partners
-24-
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of J O Hambro Investment Management Limited ("J
O Hambro Investment") as of the date hereof.
Name: Richard Alexander Hambro
(Chairman)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Chairman, J O Hambro Investment
Director, J O Hambro & Company
Director, J O Hambro Asset Management
Name: David Frank Chaplin
(Managing Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro Investment
Name: John Alexander Anderson
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Lord Balniel
(Executive Director)
-25-
<PAGE>
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Geoffrey Leo Alexander Galitzine
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Robert Charles Orlando Hellyer
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Executive Director, J O Hambro & Company
Executive Director, J O Hambro Asset
Management
Executive Director, J O Hambro & Partners
Name: Christopher Mark Rose
(Executive Director)
Citizenship: British
-26-
<PAGE>
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: William van Straubenzee
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: William Alexander Mavourn Francklin
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Ian Colquhoun Marris
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
-27-
<PAGE>
Name: Angus Richard Bonson
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
-28-
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of North Atlantic Smaller Companies Investment
Trust plc ("NASCIT") as of the date hereof.
Name: Richard David Christopher Brooke
(Chairman)
Citizenship: British
Business address: North Atlantic Smaller Companies Investment
Trust plc
10 Park Place
London SW1A 1LP
England
Principal Occupation: Chairman, NASCIT
Director, J O Hambro & Company
Name: Christopher Harwood Bernard Mills
(Executive Director)
Citizenship: British
Business Address: North Atlantic Smaller Companies Investment
Trust plc
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, NASCIT
Executive Director, American Opportunity Trust
plc
Director, J O Hambro & Partners
Director, Oryx
Name: Enrique Foster Gittes
Director)
Citizenship: USA
Residence: 4 East 82nd Street
New York, New York 10028
USA
Principal Occupation: Director, NASCIT
-29-
<PAGE>
Name: Robert D. le P. Power
(Director)
Citizenship: British
Business Address: SouthCoast Capital Corporation<F3>
575 Lexington Avenue
7th Floor
New York, New York 10022
USA
Principal Occupation: Director, SouthCoast Capital Corporation
Name: Douglas P C Nation
(Director)
Citizenship: British
Business Address: Bear Stearns Co. Inc.<F4>
245 Park Avenue
New York, NY 10167
Principal Occupation: Managing Director, Bear Stearns Co. Inc.
Name: The Hon. Peregrine D E M Moncreiffe
(Director)
Citizenship: British
Business Address: Buchanan Partners Limited<F5>
Buchanan House
3 St James's Square
London SW1Y 4JU
England
Principal Occupation: Director, Buchanan Partners Limited
- --------
[FN]
<F3> SouthCoast Capital Corporation principally engages in the brokerage
business.
<F4> Bear Stearns Co. Inc. principally engages in the brokerage business.
<F5> Buchanan Partners Limited principally engages in the investment management
business.
[/FN]
-30-
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of Growth Financial Services Limited ("GFS") as
of the date hereof.
Name: Christopher Harwood Bernard Mills
(Director)
Citizenship: British
Business Address: 10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, NASCIT
Executive Director, American Opportunity Trust
Director, J O Hambro & Partners
Director, Oryx
Name: Ivan Alexander Shenkman
(Director)
Citizenship: British
Residence: 34 Royal Crescent, London W11
England
Principal Occupation: Consultant
GFS is controlled by Christopher Mills who owns 99% of the share capital.
-31-
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of American Opportunity Trust plc ("American
Opportunity Trust") as of the date hereof.
Name: R. Alexander Hammond-Chambers
(Chairman)
Citizenship: British
Business Address: Covey Advertising Limited
1 Fountainhall Road
Edinburgh EH9 2NL
Principal Occupation: Director, Covey Advertising Limited<F6>
Name: Christopher Harwood Bernard Mills
(Executive Director)
Citizenship: British
Business Address: 10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, American Opportunity Trust
Executive Director, NASCIT
Director, J O Hambro & Partners
Director, Oryx
Name: John Gildea
(Director)
Citizenship: USA
Business Address: Gildea Management Company<F7>
90 Ferris Hill Road
New Canaan, Connecticut 06840
USA
Principal Occupation: President, Gildea Management Company
- --------
[FN]
<F6> Covey Advertising Limited is principally engaged in the advertising
business.
<F7> Gildea Management Company is principally engaged in the investment
management business.
[/FN]
-32-
<PAGE>
Name The Hon. James J. Nelson
(Director)
Citizenship: British
Business Address: Foreign & Colonial Ventures<F8>
8th Floor
Exchange House
Primrose Street
London EC2A 2NY
England
Principal Occupation: Director, Foreign & Colonial Ventures
Name: Iain Tulloch
(Director)
Citizenship: British
Business Address: Murray Johnstone Ltd.<F9>
7 West Nile Street
Glasgow G2 2PX
Scotland
Principal Occupation: Director, Murray Johnstone Ltd.
Name: Philip Ehrmann
(Director)
Citizenship: British
- --------
[FN]
<F8> Foreign & Colonial Ventures is principally engaged in the investment
management business.
<F9> Murray Johnstone Ltd. is principally engaged in the investment management
business.
[/FN]
-33-
<PAGE>
Business Address: Gartmore Investment Management Ltd.<F10>
Gartmore House
16 - 18 Monument Street
London EC3R 8AJ
England
Principal Occupation: Investment Manager, Gartmore
Investment Management Ltd.
- --------
[FN]
<F10> Gartmore Investment Management Limited is principally engaged in the
investment management business.
[/FN]
-34-
<PAGE>
Exhibit Index
Document Page
The Exhibit Index is amended and restated in its entirety as follows:
(a) Secondment Services Agreement dated as of January 7, 1993
between NASCIT, GFS and Christopher Mills**;
(b) Administration, Management and Custody Agreement dated as
of January 7, 1993 between NASCIT and J O Hambro & Partners**;
(c) Investment Management Agreement dated as of February 29, 1996
between J O Hambro & Partners and Seaway Limited;
(d) Investment Management Agreement dated as of February 9, 1996
between J O Hambro & Partners and Lord Stevens of Ludgate
Pension Fund;
(e) Investment Management Agreement dated as of February 28, 1997
between J O Hambro & Partners and Eveswise Retirement Fund;
(f) Administration, Management and Custody Agreement dated as of
January 7, 1993 between J O Hambro & Partners and American
Opportunity Trust**; and
(g) Joint Filing Agreement dated September 15, 1994 between and
among NASCIT, GFS, J O Hambro & Partners, J O Hambro Asset
Management, J O Hambro Investment, J O Hambro & Company,
American Opportunity Trust, Oryx, Consulta and Christopher
Harwood Bernard Mills.**
- ----------------------
** Previously filed
-35-
<PAGE>
CLIENT AGREEMENT
SEAWAY LIMITED
-36-
<PAGE>
J O HAMBRO & PARTNERS LIMITED
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 29TH DAY OF FEB., 1996.
BETWEEN:
(1) J O HAMBRO & PARTNERS LIMITED ("JOHP") a member of the Investment
Management Regulatory Organization Limited ("IMRO") and regulated in
the conduct of investment business by it, whose registered office is at
10 Park Place, London SW1A 1LP; and
(2) SEAWAY LIMITED (portfolio name)
(hereafter known as the "Client")
of
ORBIS HOUSE, PO BOX 20, 20 NEW STREET,
ST PETER PORT, GUERNSEY, CHANNEL ISLANDS
(address)
NOW IT IS HEREBY AGREED as follows:
APPOINTMENT AND STATUS OF CLIENT
1. The Client, a Private Customer as defined in the Rules of IMRO, hereby
appoints JOHP to act as discretionary investment manager, subject to
the terms and conditions hereof, in relation to the Client's
investments and cash which are from time to time placed under the
management of JOHP (the "Portfolio") and JOHP hereby agrees to
manage and administer the Portfolio. The appointment will commence
on the date on which this Agreement is delivered to JOHP by the Client
having been signed first by the Client then by JOHP. The assets
comprising the Portfolio and their opening value are set out in
Schedule 1.
MANAGEMENT OF INVESTMENTS
2. JOHP shall have complete discretion, power and authority to manage the
Portfolio and to make investments and changes in investments on the
Client's behalf and as the Client's agent within the investment policy
agreed between JOHP and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restriction
set out in Part II of Schedule II and to any guidelines, restrictions
and instructions specified in writing from time to time by the Client
or by the Client's duly authorized agent (written notice of whose
authority shall have been received by JOHP). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
-37-
<PAGE>
3. JOHP shall not be obliged to undertake the management of investments the
management of which would in its opinion be onerous to it.
DEALING TERMS
4. Subject as set out in paragraph 9, in effecting transactions for the
Portfolio JOHP shall seek best execution at all times and may (subject
to the investment policy set out in Part I of Schedule II) deal on such
markets or exchanges and with such counterparties as it thinks fit. The
Client agrees that all such transactions will be effected in accordance
with the rules and regulations of the relevant market or exchange and
that JOHP may take all such steps as may be required or permitted by
such rules and regulations and/or by good market practice.
5. The Client's investments or documents of title or certificates
evidencing title to investments or any other property belonging to the
Client will not be lent by JOHP to a third party except as otherwise
agreed between the Client and JOHP in writing.
6. JOHP may supplement the funds in the Portfolio by borrowing on the
Client's behalf but only for the purpose of funding short-term
deficiencies arising in the normal course of JOHP's duties hereunder to
an extent which is not material in the context of the Portfolio taken
as a whole. JOHP will not borrow money on the Client's behalf against
the security of any of the Client's investments, documents of title or
property.
7. JOHP may commit the Client to underwrite any issue or offer for sale
of securities without the Client's prior written consent.
8. JOHP may act as principal in any transaction for the Client provided
that JOHP shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHP may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHP has the right under this Agreement to effect transactions on the
Client's behalf in investments the price of which may be being
stabilised. The attention of the Client is referred to the statement
contained in Schedule II relating to stabilisation. Signature of this
Agreement by or on behalf of the Client shall act as acknowledgment by
the Client of receipt of such statement prior to entry into this
Agreement.
CONFLICTS OF INTEREST
11. Subject to paragraphs 12 and 13, JOHP shall not undertake any
transactions on the Client's behalf in which JOHP has directly or
indirectly a material interest or have any relationship with another
party which may involve a conflict with JOHP's duty to the Client
unless that interest or relationship is disclosed in writing to the
Client.
-38-
<PAGE>
12. The Client's Portfolio may contain securities of which the issue or
offer for sale is underwritten, managed or arranged by an Associate (as
defined in the Rules of IMRO) of JOHP during the preceding twelve
months.
13. The Client understands that JOHP's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHP's directors or staff may from time to time be
directors of companies whose shares are held in the Portfolio.
14. The Client acknowledges that JOHP may acquire or dispose of on the
Client's behalf shares or units in any fund, company, trust or
Collective Investment Scheme (as defined by the Rules of IMRO) under
JOHP's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHP) if JOHP considers such an
investment to be appropriate for inclusion in or exclusion from the
Portfolio.
CUSTODIAL SERVICES
15. (a) Save where the Client has notified JOHP in accordance with
paragraph 15(b), in those cases where the Client is situated
in the United Kingdom registerable investments will be
registered in the name of an Eligible Custodian (as defined in
the Rules of IMRO) situated in the United Kingdom and
nominated by JOHP.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHP,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHP.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHP and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHP. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHP and Client's
documents of title may be held by that Associate at any time
after JOHP shall have given the Client written notice of its
intention to do so. Such notice shall specify the nature of
its association with such Associate.
ACCOUNTS, INTEREST AND DIVIDENDS
16. The following Client accounts, together with such others that may be
required, will be maintained by JOHP.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHP shall not lend the Client's
investments to any third party and shall
-39-
<PAGE>
not borrow money on the Client's behalf against the security
of the Client's investments.
(b) CAPITAL ACCOUNT
All uninvested cash will be held in this account by a bank
chosen by JOHP. The account will be debited with the cost of
purchases on the Client's behalf and with sums due and payable
by the Client to JOHP and will be credited with the net
proceeds of sales on the Client's behalf. Money drawn on
behalf of the Client from the account shall not exceed the
total of money held in the account on behalf of the Client at
that time. Interest will be paid on sums standing to the
credit of the account and held on the Client's behalf at the
prevailing market rate. The interest will be paid quarterly
and will be credited to the Income Account on the Client's
behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHP in writing that the Client wishes cash in
the Portfolio to be held outside the United Kingdom, JOHP will
be (subject to applicable laws and regulations) hold such cash
in a bank account outside the United Kingdom.
17. The Client may at any time instruct JOHP to realize any or all of the
investments in the Portfolio and may withdraw any sum standing to the
credit of the Capital Account and held on the Client's behalf.
18. JOHP shall maintain separate ledger accounts on the Client's behalf.
All debits from and credits to the Investment Account and/or Capital
Account and/or Income Account on the Client's behalf shall be recorded
in the ledger accounts, and statements of
-40-
<PAGE>
account showing all transactions, payments and receipts up to and
including 5th April of each year will be sent to the Client as soon as
reasonably practicable after that date.
COMMUNICATIONS
19. In the interests of proper administration of the Portfolio and for
related investment purposes JOHP, its representatives or employees, may
call upon the Client by telephone, visit or otherwise communicate
orally with the Client without express invitation. The Client's
attention is drawn to the fact that the Client 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 of or
in consequence of such a call.
ADMINISTRATION
20. Contract notes in respect of every purchase and sale on the Client's
behalf will be sent to the Client before the close of business on the
day next following the day on which the transaction was effected.
21. JOHP will on the Client's request forward details of all transactions
on the Client's behalf to the Client's tax advisor without additional
charge.
22. The Client may (upon giving reasonable notice) inspect all copy
contract notes, vouchers and copies of entries in books or electronic
recording media kept by JOHP or to which JOHP has access relating to
the transactions effected by JOHP on the Client's behalf and those
records will be maintained by JOHP or JOHP will ensure that they are
maintained for not less than seven years from the date of the relevant
transaction.
23. All documents will be sent to the Client at the address given above
unless and until otherwise directed in writing. The Client agrees that
it will immediately notify JOHP in writing of any change of address,
and that JOHP will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHP will prepare reviews of the Portfolio incorporating an up-to-date
valuation of each investment comprised in the Portfolio and a statement
of the basis on which it was valued on a six monthly basis or at such
other frequency as may be agreed between JOHP and the Client. Such
reviews shall be prepared as at such half yearly or other dates as
shall be agreed between JOHP and the client from time to time (each
such date being referred to as a "Valuation Date"), and JOHP will send
such reviews to the Client within twenty-five business days of each
Valuation Date.
25. On each Valuation Date cash will be valued at its face value and each
investment will be valued at its middle market price on the relevant
stock exchange at the close of business on such day or (if not a
business day) on the nearest prior business day as is supplied by
"Exshare" or any other suitable information service chosen by JOHP
(which figures shall be binding save for manifest error). For the
purpose of valuing in
-41-
<PAGE>
sterling any foreign currency or any security listed on a foreign stock
exchange the price of which is quoted in currency other than sterling,
the valuation and middle market exchange rates supplied by "Exshare" or
any other suitable information service chosen by JOHP shall be applied.
In the absence of that valuation or exchange rate, the middle market
price as determined by the Daily Official List of The Stock Exchange or
the equivalent list for any relevant stock exchange will be applied. If
none of the foregoing methods of valuation are available, the
investments in question will be valued in such other manner (by JOHP or
such other person selected by JOHP) as shall in JOHP's opinion be fair.
26. JOHP accepts no liability for any period longer than 25 business days
between any Valuation Date and the despatch of a review to the Client
of his Portfolio which has elapsed as result of any act or omission of
any third party.
VOTING AND OTHER RIGHTS
27. JOHP will be entitled at its discretion and without notice to the
Client to procure or to refrain from procuring the exercise of voting
and other rights and privileges attaching to the investments comprised
in the Portfolio and to accede or refrain from acceding to any
compromise or arrangement in relation to any scheme of arrangement or
scheme for reconstruction or amalgamation involving any such
investment. JOHP will not forward to the Client any circulars, notices
or proxy cards received in respect of investments comprised in the
Portfolio.
FEES, COMMISSIONS AND EXPENSES
28. (a) The Client will pay a management fee to JOHP in respect of
the period beginning with first receipt by JOHP of any
investments or money from the Client and ending with a
Valuation Date (as defined in paragraph 24) and each period
thereafter starting with the day after any Valuation Date and
ending on the next Valuation Date (or the Termination Date as
defined in paragraph 39 if sooner).
(b) The management fee shall be calculated in accordance with the
'Scale Rates and Charges' set out in Schedule III.
(c) The management fee shall be payable not later than 14 days
after despatch to the Client of an invoice which shall be sent
to the Client as soon as is reasonably practicable after each
Valuation Date. Unless otherwise instructed the Client's
Capital Account will be debited with the amounts due to JOHP
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHP for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
-42-
<PAGE>
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon
(if applicable). The Client recognizes that JOHP may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHP's
clients, one of whom may be the Client, or from return commissions
which benefit JOHP shall be entitled to retain. JOHP will be free to
accept and retain as an addition to its fees and commissions any other
commissions which it receives in the course of its dealing on the
Client's behalf: all such benefits and receipts shall supplement any
other remuneration receivable by JOHP in connection with transactions
effected by JOHP with or for the Client under this or any other
agreement with the Client and the Client consents to all such benefits
and receipts as are referred to above without prior disclosure of the
same to the Client on a case-by-case basis provided that JOHP
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHP receives such benefits
and commissions, disregarding any benefit which the Client might obtai
directly or indirectly as a result of such arrangements.
31. JOHP shall be entitled to alter the manner of computing or charging its
fees, commissions and expenses or of paying interest on the money held
on the Client's behalf in the Capital Account (including with prejudice
to the generality of the foregoing its scale rates and charges) by
giving one month's prior notice in writing to the Client.
RESPONSIBILITY AND INSURANCE
32. JOHP will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHP or any of its
employees. Subject to the above, JOHP will not be responsible or liable
for any claim, loss, damage, expense or costs arising by reason of any
of the following:
(a) any investment decision taken and acted upon in accordance
with the terms of this Agreement; or
(b) any delay or default in the performance of its obligations
under this Agreement arising in consequence of any event or
circumstance beyond the reasonable control of JOHP; or
(c) any act or omission on the part of any of the banks or nominee
companies controlled by them or other eligible custodians as
referred to in paragraph 15 or any other person to which any
of them shall have delegated its function or on the part of
any other third party whatsoever; or
(d) any consequential loss suffered in consequence of any act or
omission of JOHP or any breach of JOHP of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHP from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred
-43-
<PAGE>
by JOHP arising out of the breach by the Client of any warranty or by
reason of any failure by the Client to comply with and/or perform any
of the terms and conditions contained in this Agreement.
34. Where the Client is a joint account (whether or not a trust account)
JOHP shall unless and until otherwise directed in writing by all the
persons named in the joint account, be entitled to act on the
instructions of any of them and shall not in any whatsoever be liable
to the others for doing so.
35. JOHP has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHP or any dishonesty
of employees of JOHP.
36. Under Section 54 of the Financial Services Act 1986 The Securities and
Investments Board has established a scheme for compensating investors
by which the Client may be entitled to compensation in the event of
JOHP's inability to meet any liabilities to the Client. JOHP will make
available to the Client upon request a statement describing the
Client's rights to compensation under the scheme.
DELEGATION AND USE OF AGENTS
37. JOHP may delegate any of its functions under this Agreement to an
Associate and may provide information about the Client and the
Portfolio to any such Associate but JOHP's liability to the Client for
all matters so delegated shall not be affected thereby. JOHP shall give
to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHP may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHP to perform its services under this Agreement. JOHP
undertakes to act in good faith and with due diligence in the choice
and use of such agents.
TERMINATION OF AGREEMENT
39. This Agreement may be terminated by either party by giving written
notice of termination to the other at any time. Termination shall take
effect on the day upon which the other party actually receives the
notice (the "Termination Date") provided that, where the client is a
joint account, notice of termination by JOHP shall be given to every
person named in the joint account and in such circumstances the
Termination Date shall be deemed to be the day after the date of
posting by first class recorded delivery or other appropriate means to
all persons named in the joint account.
40. Upon the Termination Date, JOHP will complete expeditiously all
transactions in progress at termination but will not execute any
further transactions for the Client. Upon all fees, commissions,
expenses and other sums due to it and any other liabilities for which
it may be or become liable in connection with the management of the
Portfolio being settled or adequately secured to the satisfaction of
JOHP, JOHP will ensure that all investments and cash balances held on
the Client's behalf will, after any outstanding security registration,
stock exchange settlements and other administrative
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matters have been completed and as soon as reasonably practicable, be
transferred to the Client or dealt with in accordance with the Client's
instructions, in all cases at the cost of the Client.
41. Termination will not affect accrued rights, existing commitments or any
contractual provision intended to survive termination and will be
without penalty or other additional payment except that JOHP may charge
the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHP necessarily incurs in
terminating this Agreement; and
(c) any losses necessarily realized in settling or concluding
outstanding obligations.
42. The death, bankruptcy or other incapacity or, in the case of a body
corporate, the cessation of business of the Client or a petition being
presented or a meeting being convened to consider a resolution for the
liquidation of the Client shall not of itself terminate JOHP's
appointment; but JOHP may at its discretion treat its receipt of actual
notice of any such events as if it were a written notice of termination
from the Client.
43. If the Client is a joint account the Client's obligations under this
Agreement shall be joint and several. On the death of any of the
persons constituting the Client (being survived by any such other
person), the Agreement shall not terminate and, except in the case of
trustees, the interest of the deceased in the Portfolio shall
automatically enure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHP.
CLIENT WARRANTIES
44. The Client warrants that the Client is the beneficial owner (or the
duly authorized agent of the beneficial owner) of the whole of the
Portfolio free from all liens, charges, encumbrances and restrictions
on transfer except insofar as advised by the Client to JOHP, and will
so remain during the currency of this Agreement.
45. The Client warrants that the Client is empowered to enter into this
Agreement without the consent or authority of any other party and in
the case of a Client being a body corporate the Client warrants that by
entering into this Agreement it is not nor will it be in breach of its
Memorandum or Articles of Association or any other relevant document.
GENERAL
46. Terms and expressions defined in the rules of IMRO for the time being
in force shall where the context so admits bear the same meaning in
this Agreement.
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47. The Clause headings in this Agreement are included for ease of
reference only and shall not affect its interpretation.
48. The Schedules to this Agreement are an integral part of it.
49. If the Client is an individual this Agreement shall be binding on his
legal personal representatives.
50. This Agreement is personal to the parties hereto and shall not be
capable of assignment.
51. Subject to clause 31, no change, alteration or modification to this
Agreement or the Schedules hereto shall be made unless in writing and
signed by the parties hereto.
52. Notice required or authorized to be served hereunder must be addressed
to the address of the recipient stated above or to such other address
as may have been notified in writing by either party hereto to the
other as its address for the service of notices. In the case of notice
served by the Client from outside the United Kingdom and of notice
served upon the Client at an address outside the United Kingdom, the
notice shall be sufficiently served if served by pre-paid letter, cable
or telex. In the case of notice service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHP verbally or in writing about
any service JOHP has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHP's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint.
The Client has the right to refer any complaint to IMRO if the Client
is not satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHP.
54. Each party to this Agreement shall respect and protect the
confidentiality of information acquired in consequence of it and shall
not disclose such information to any third party save in the course of
giving effect to this Agreement or as may be required by law, or where
requested by regulatory authorities, or to their professional advisors
where reasonably necessary for the performance of their professional
services.
55. This Agreement is subject to English law and the parties hereto hereby
submit to the jurisdiction of the English Courts in respect of it.
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SCHEDULE I
THE PORTFOLIO
Valuation and composition of Portfolio
(see attached letter/opening valuation - where applicable)
SCHEDULE II
INVESTMENT POLICY, GUIDELINES AND RESTRICTIONS
PART I - Investment Policy including basis
of measurement of performance
The investment objectives are to maintain a maximum total return commensurate
with safety and the protection of the underlying value of the capital of the
fund.
The performance will be measured against the F.T. All Share Index, any other
appropriate Index or measure of performance agreed upon by JOHP and the Client.
PART II - Guidelines and Restrictions
1. There will be no restrictions placed on the types of investment in
which the money comprised in the Portfolio will be invested provided
that the services to be provided by JOHP will not include advising on
or effecting Contingent Liability Transactions, nor will they, without
the express authority of the Client, relate to options, futures or
contracts for differences (or to any right or interest in such
investments).
2. The contents of the Portfolio may be invested in any market save for
the following:
There shall be no restriction on the amount of monies or proportion of
the Portfolio invested in any one investment or type of investment
permitted hereunder provided that, subject to the provisions relating
to overdraft contained in paragraph 6 of this Agreement, under no
circumstances will JOHP make investments on behalf of the Client to a
value in excess of the aggregate of the value of the funds and
securities held by JOHP on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
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PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHP provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
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As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
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SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
1% per annum on portfolios of up to (pound)2,500,000
Large Portfolios (Over (pound)2,500,000) - by negotiation
<TABLE>
<CAPTION>
<S> <C>
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to(pound)10,000 0.5% on transactions up to(pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
</TABLE>
(Minimum commissions (pound)30 per contract)
All transactions are subject to a handling charge of (pound)12.50 per
transaction in the case of UK registered securities
((pound)20 for non-UK registered securities)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
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FOR J O HAMBRO & PARTNERS LIMITED
20/1/96 Date /s/ Christopher Mills
----------------------
FOR THE CLIENT* For and on behalf of
SEAWAY LIMITED
29th Feb., 1996 Date /s/ A.J. Kanoo
- ----------------------------------------- ----------------------
Director
____________________________ /s/
Regulus Limited
Secretary
- ----------------------------
*The Client should sign here as follows. [Seal of SEAWAY LIMITED]
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHP have a certified true copy of a Board resolution confirming the
appointment of JOHP as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHP have a copy of
the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
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CLIENT AGREEMENT
LORD STEVENS OF LUDGATE
PENSION FUND
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<PAGE>
J O HAMBRO & PARTNERS LIMITED
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE DAY OF
19
BETWEEN:
(1) J O HAMBRO & PARTNERS LIMITED ("JOHP") a member of the Investment
Management Regulatory Organisation Limited ("IMRO") and regulated in
the conduct of investment business by it, whose registered office is at
10 Park Place, London SW1A, 1LP; and
(2) Lord Stevens of Ludgate Pension Scheme (portfolio name)
---------------------------------------------------------------------
(hereafter known as the "Client")
of
c/o Provident Life Association Ltd., Provident Way,
Basingstoke, Hamps RG21 2SZ (address)
NOW IT IS HEREBY AGREED as follows:
APPOINTMENT AND STATUS OF CLIENT
1. The Client, a Private Customer as defined in the Rules of IMRO, hereby
appoints JOHP to act as discretionary investment manager, subject to
the terms and conditions hereof, in relation to the Client's
investments and cash which are from time to time placed under the
management of JOHP (the "Portfolio") and JOHP hereby agrees to
manage and administer the Portfolio. The appointment will commence
on the date on which this Agreement is delivered to JOHP by the Client
having been signed first by the Client then by JOHP. The assets
comprising the Portfolio and their opening value are set out in
Schedule 1.
MANAGEMENT OF INVESTMENTS
2. JOHP shall have complete discretion, power and authority to manage the
Portfolio and to make investments and changes in investments on the
Client's behalf and as the Client's agent within the investment policy
agreed between JOHP and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions
set out in Part II of Schedule II and to any guidelines, restrictions
and instructions specified in writing from time to time by the Client
or by the Client's duly authorised agent (written notice of whose
authority shall have been received by JOHP.) The Client's attention
is specifically drawn to the warnings set out in Part III of
Schedule II.
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<PAGE>
3. JOHP shall not be obliged to undertake the management of investments
the management of which would in its opinion be onerous to it.
DEALING TERMS
4. Subject as set out in paragraph 9, in effecting transactions for the
Portfolio JOHP shall seek best execution at all times and may (subject
to the investment policy set out in Part I of Schedule II) deal on such
markets or exchanges and with such counterparties as it thinks fit. The
Client agrees that all such transactions will be effected in accordance
with the rules and regulations of the relevant market or exchange and
that JOHP may take all such steps as may be required or permitted by
such rules and regulations and/or by good market practice.
5. The Client's investments or documents of title or certificates
evidencing title to investments or any other property belonging to the
Client will not be lent by JOHP to a third party except as otherwise
agreed between the Client and JOHP in writing.
6. JOHP may supplement the funds in the Portfolio by borrowing on the
Client's behalf but only for the purpose of funding short-term
deficiencies arising in the normal course of JOHP's duties hereunder to
an extent which is not material in the context of the Portfolio taken
as a whole. JOHP will not borrow money on the Client's behalf against
the security of any of the Client's investments, documents of title or
property.
7. JOHP may commit the Client to underwrite any issue or offer for sale of
securities without the Client's prior written consent.
8. JOHP may act as principal in any transaction for the Client provided
that JOHP shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHP may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHP has the right under this Agreement to effect transactions on the
Client's behalf in investments the price of which may be being
stabilised. The attention of the Client is referred to the statement
contained in Schedule II relating to stabilisation. Signature of this
Agreement by or on behalf of the Client shall act as acknowledgment by
the Client of receipt of such statement prior to entry into this
Agreement.
CONFLICTS OF INTEREST
11. Subject to paragraphs 12 and 13, JOHP shall not undertake any
transactions on the Client's behalf in which JOHP has directly or
indirectly a material interest or have any relationship with another
party which may involve a conflict with JOHP's duty to the Client
unless that interest or relationship is disclosed in writing to the
Client.
12. The Client's Portfolio may contain securities of which the issue or
offer for sale is underwritten, managed or arranged by an Associate (as
defined in the Rules of IMRO) of JOHP during the preceding twelve
months.
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13. The Client understands that JOHP's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHP's directors or staff may from time to time be
directors of companies whose shares are held in the Portfolio.
14. The Client acknowledges that JOHP may acquire or dispose of on the
Client's behalf shares or units in any fund, company, trust or
Collective Investment Scheme (as defined by the Rules of IMRO) under
JOHP's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHP) if JOHP considers such an
investment to be appropriate for inclusion in or exclusion from the
Portfolio.
CUSTODIAL SERVICES
15. (a) Save where the Client has notified JOHP in accordance with
paragraph 15(b), in those cases where the Client is situated
in the United Kingdom registerable investments will be
registered in the name of an Eligible Custodian (as defined in
the Rules of IMRO) situated in the United Kingdom and
nominated by JOHP.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHP,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHP.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHP and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHP. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHP and Client's
documents of title may be held by that Associate at any time
after JOHP shall have given the Client written notice of its
intention to do so. Such notice shall specify the nature of
its association with such Associate.
ACCOUNTS, INTEREST AND DIVIDENDS
16. The following Client accounts, together with such others that may be
required, will be maintained by JOHP.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHP shall not lend the Client's
investments to any third party and shall not borrow money on
the Client's behalf against the security of the Client's
investments.
(b) CAPITAL ACCOUNT
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All uninvested cash will be held in this account by a bank
chosen by JOHP. The account will be debited with the cost of
purchases on the Client's behalf and with sums due and payable
by the Client to JOHP and will be credited with the net
proceeds of sales on the Client's behalf. Money drawn on
behalf of the Client from the account shall not exceed the
total of money held in the account on behalf of the Client at
that time. Interest will be paid on sums standing to the
credit of the account and held on the Client's behalf at the
prevailing market rate. The interest will be paid quarterly
and will be credited to the Income Account on the Client's
behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(d) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHP in writing that the Client wishes cash in
the Portfolio to be held outside the United Kingdom, JOHP will
be (subject to applicable laws and regulations) hold such cash
in a bank account outside the United Kingdom.
17. The Client may at any time instruct JOHP to realize any or all of the
investments in the Portfolio and may withdraw any sum standing to the
credit of the Capital Account and held on the Client's behalf.
18. JOHP shall maintain separate ledger accounts on the Client's behalf.
All debits from and credits to the Investment Account and/or Capital
Account and/or Income Account on the Client's behalf shall be recorded
in the ledger accounts, and statements of account showing all
transactions, payments and receipts up to and including 5th April of
each year will be sent to the Client as soon as reasonably practicable
after that date.
COMMUNICATIONS
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19. In the interests of proper administration of the Portfolio and for
related investment purposes JOHP, its representatives or employees, may
call upon the Client by telephone, visit or otherwise communicate
orally with the Client without express invitation. The Client's
attention is drawn to the fact that the Client 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 of or
in consequence of such a call.
ADMINISTRATION
20. Contract notes in respect of every purchase and sale on the Client's
behalf will be sent to the Client before the close of business on the
day next following the day on which the transaction was effected.
21. JOHP will on the Client's request forward details of all transactions
on the Client's behalf to the Client's tax advisor without additional
charge.
22. The Client may (upon giving reasonable notice) inspect all copy
contract notes, vouchers and copies of entries in books or electronic
recording media kept by JOHP or to which JOHP has access relating to
the transactions effected by JOHP on the Client's behalf and those
records will be maintained by JOHP or JOHP will ensure that they are
maintained for not less than seven years from the date of the relevant
transaction.
23. All documents will be sent to the Client at the address given above
unless and until otherwise directed in writing. The Client agrees that
it will immediately notify JOHP in writing of any changes of address,
and that JOHP will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHP will prepare reviews of the Portfolio incorporating an up-to-date
valuation of each investment comprised in the Portfolio and a statement
of the basis on which it was valued on a six monthly basis or at such
other frequency as may be agreed between JOHP and the Client. Such
reviews shall be prepared as at such half yearly or other dates as
shall be agreed between JOHP and the Client from time to time (each
such date being referred to as a "Valuation Date"), and JOHP will send
such reviews to the Client within twenty-five business days of each
Valuation Date
25. On each Valuation Date cash will be valued at its face value and each
investment will be valued at its middle market price on the relevant
stock exchange at the close of business on such day or (if not a
business day) on the nearest prior business day as is supplied by
"Exshare" or any other suitable information service chosen by JOHP
(which figures shall be binding save for manifest error). For the
purpose of valuing in sterling any foreign currency or any security
listed on a foreign stock exchange the price of which is quoted in
currency other than sterling, the valuation and middle market exchange
rates supplied by "Exshare" or any other suitable information service
chosen by JOHP shall be applied. In the absence of that valuation or
exchange rate, the middle market price as determined by the Daily
Official List of The Stock
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Exchange or the equivalent list for any relevant stock exchange will be
applied. If none of the foregoing methods of valuation are available,
the investments in question will be valued in such other manner (by
JOHP or such other person selected by JOHP) as shall in JOHP's opinion
be fair.
26. JOHP accepts no liability for any period longer than 25 business days
between any Valuation Date and the despatch of a review to the Client
of his Portfolio which has elapsed as result of any act or omission of
any third party.
VOTING AND OTHER RIGHTS
27. JOHP will be entitled at its discretion and without notice to the
Client to procure or to refrain from procuring the exercise of voting
and other rights and privileges attaching to the investments comprised
in the Portfolio and to accede or refrain from acceding to any
compromise or arrangement in relation to any scheme of arrangement or
scheme for reconstruction or amalgamation involving any such
investment. JOHP will not forward to the Client any circulars, notices
or proxy cards received in respect to investments comprised in the
Portfolio.
FEES, COMMISSIONS AND EXPENSES
28. (a) The Client will pay a management fee to JOHP in respect of
the period beginning with first receipt by JOHP of any
investments or money from the Client and ending with a
Valuation Date (as defined in paragraph 24) and each period
thereafter starting with the day after any Valuation Date and
ending on the next Valuation Date (or the Termination Date as
defined in paragraph 39 if sooner).
(b) The management fee shall be calculated in accordance with the
'Scale Rates and Charges' set out in Schedule III.
(c) The management fee shall be payable not later than 14 days
after despatch to the Client of an invoice which shall be sent
to the Client as soon as is reasonably practicable after each
Valuation Date. Unless otherwise instructed the Client's
Capital Account will be debited with the amounts due to JOHP
on the 14th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHP for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together will all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHP may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHP's
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clients, one of whom may be the Client, or from return commissions
which benefit JOHP shall be entitled to retain. JOHP will be free to
accept and retain as an addition to its fees and commissions any other
commissions which it receives in the course of its dealing on the
Client's behalf: all such benefits and receipts shall supplement any
other remuneration receivable by JOHP in connection with transactions
effected by JOHP with or for the Client under this or any other
agreement with the Client and the Client consents to all such benefits
and receipts as are referred to above without prior disclosure of the
same to the Client on a case-by-case basis provided that JOHP
undertakes to secure for the Client best execution of all transactions
effected with or through a party from whom JOHP receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHP shall be entitled to alter the manner of computing or charging its
fees, commissions and expenses or of paying interest on the money held
on the Client's behalf in the Capital Account (including with prejudice
to the generality of the foregoing its scale rates and charges) by
giving one month's prior notice in writing to the Client.
RESPONSIBILITY AND INSURANCE
32. JOHP will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHP or any of its
employees. Subject to the above, JOHP will not be responsible or liable
for any claim, loss, damage, expense or costs arising by reason of any
of the following:
(a) any investment decision taken and acted upon in accordance
with the terms of this Agreement; or
(b) any delay or default in the performance of its obligations
under this Agreement arising in consequence of any event or
circumstance beyond the reasonable control of JOHP; or
(c) any act or omission on the part of any of the banks or nominee
companies controlled by them or other eligible custodians as
referred to in paragraph 15 or any other person to which any
of them shall have delegated its function or on the part of
any other third party whatsoever; or
(d) any consequential loss suffered in consequence of any act or
omission of JOHP or any breach of JOHP of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHP from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHP arising out of the breach by the
Client of any warranty or by reason of any failure by the Client to
comply with and/or perform any of the terms and conditions in this
Agreement.
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34. Where the Client is a joint account (whether or not a trust account)
JOHP shall unless and until otherwise directed in writing by all the
persons named in the joint account, be entitled to act on the
instructions of any of them and shall not in any whatsoever be liable
to the others for doing so.
35. JOHP has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHP or any dishonesty
of employees of JOHP.
36. Under Section 54 of the Financial Services Act 1986 The Securities and
Investments Board has established a scheme for compensating investors
by which the Client may be entitled to compensation in the event of
JOHP's inability to meet any liabilities to the Client. JOHP will make
available to the Client upon request a statement describing the
Client's rights to compensation under the scheme.
DELEGATION AND USE OF AGENTS
37. JOHP my delegate any of its functions under this Agreement to an
Associate and may provide information about the Client and the
Portfolio to any such Associate but JOHP's liability to the Client for
all matters so delegated shall not be affected thereby. JOHP shall give
to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHP may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHP to perform its services under this Agreement. JOHP
undertakes to act in good faith and with due diligence in the choice
and use of such agents.
TERMINATION OF AGREEMENT
39. This Agreement may be terminated by either party by giving written
notice of termination to the other at any time. Termination shall take
effect on the day upon which the other party actually receives the
notice (the "Termination Date") provided that, where the Client is a
joint account, notice of termination by JOHP shall be given to every
person named in the joint account and in such circumstances the
Termination Date shall be deemed to be the day after the date of
posting by first class recorded delivery or other appropriate means to
all persons named in the joint account.
40. Upon the Termination Date, JOHP will complete expeditiously all
transactions in progress at termination but will not execute any
further transactions for the Client. Upon all fees, commissions,
expenses and other sums due to it and any other liabilities
for which it may be or become liable in connection with the management
of the Portfolio being settled or adequately secured to the
satisfaction of JOHP, JOHP will ensure that all investments and cash
balances held on the Client's behalf will, after any outstanding
security registration, stock exchange settlements and other
administrative matters have been completed and as soon as reasonably
practicable, be transferred to the Client or dealt with in accordance
with the Client's instructions, in all cases at the cost of the Client.
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41. Termination will not affect accrued rights, existing commitments or any
contractual provision intended to survive termination and will be
without penalty or other additional payment except that JOHP may charge
the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHP necessarily incurs in
terminating this Agreement; and
(c) any losses necessarily realized in settling or concluding
outstanding obligations.
42. The death, bankruptcy or other incapacity or, in the case of a body
corporate, the cessation of business of the Client or a petition being
presented or a meeting being convened to consider a resolution for the
liquidation of the Client shall not of itself terminate JOHP's
appointment; but JOHP may at its discretion treat its receipt of actual
notice of any such events as if it were a written notice of termination
from the Client.
43. If the Client is a joint account the Client's obligations under this
Agreement shall be joint and several. On the death of any of the
persons constituting the Client (being survived by any such other
person), the Agreement shall not terminate and, except in the case of
trustees, the interest of the deceased in the Portfolio shall
automatically enure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHP.
CLIENT WARRANTIES
44. The Client warrants that the Client is the beneficial owner (or the
duly authorized agent of the beneficial owner) of the whole of the
Portfolio free from all liens, charges, encumbrances and restrictions
on transfer except insofar as advised by the Client to JOHP, and will
so remain during the currency of this Agreement.
45. The Client warrants that the Client is empowered to enter into this
Agreement without the consent or authority of any other party and in
the case of a Client being a body corporate the Client warrants that by
entering into this Agreement it is not nor will it be in breach of its
Memorandum or Articles of Association or any other relevant document.
GENERAL
46. Terms and expressions defined in the rules of IMRO for the time being
in force shall where the context so admits bear the same meaning in
this Agreement.
47. The Clause headings in this Agreement are included for ease of
reference only and shall not affect its interpretation.
48. The Schedules to this Agreement are an integral part of it.
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49. If the Client is an individual this Agreement shall be binding on his
legal personal representatives.
50. This Agreement is personal to the parties hereto and shall not be
capable of assignment.
51. Subject to clause 31, no change, alteration or modification to this
Agreement or the Schedules hereto shall be made unless in writing and
signed by the parties hereto.
52. Notice required or authorised to be served hereunder must be addressed
to the address of the recipient stated above or to such other address
as may have been notified in writing by either party hereto to the
other as its address for the service of notices. In the case of notice
served by the client from outside the United Kingdom and of notice
served upon the Client at an address outside the United Kingdom, the
notice shall be sufficiently served if served by pre-paid letter, cable
or telex. In the case of notice served by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the client makes a complaint to JOHP verbally or in writing about
any service JOHP has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHP's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of his investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The
Client has the right to refer any complaint to IMRO if the Client is
not satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHP.
54. Each party to this Agreement shall respect and protect the
confidentiality of information acquired in consequence of it and shall
not disclose such information to any third party save in the course of
giving effect to this Agreement or as may be required by law, or where
requested by regulatory authorities, or to their professional advisors
where reasonably necessary for the performance of their professional
services.
55. This Agreement is subject to English law and the parties hereto hereby
submit to the jurisdiction of the English Courts in respect of it.
SCHEDULE I
THE PORTFOLIO
Valuation and composition of Portfolio
(see attached letter/opening valuation - where applicable)
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SCHEDULE II
INVESTMENT POLICY, GUIDELINES AND RESTRICTIONS
PART I - Investment Policy including basis
of measurement of performance
The investment objectives are to maintain a maximum total return commensurate
with safety and the protection of the underlying value of the capital of the
fund.
The performance will be measured against the F.T. All Share Index, any other
appropriate Index or measure of performance agreed upon by JOHP and the Client.
PART II - Guidelines and Restrictions
1. There will be no restrictions placed on the types of investment in
which the money comprised in the Portfolio will be invested provided
that the services to be provided by JOHP will not include advising on
or effecting Contingent Liability Transactions, nor will they, without
the express prior authority of the Client, relate to options, futures
or contracts for differences (or to any right or interest in such
investments).
2. The contents of the Portfolio may be invested in any market save for
the following.
There shall be no restriction on the amount of monies or proportion of
the Portfolio invested in any one investment or type of investment
permitted hereunder provided that, subject to the provisions relating
to overdraft contained in paragraph 6 of this Agreement, under no
circumstances will JOHP make investment on behalf of the Client to a
value in excess of the aggregate of the value of the funds and
securities held by JOHP on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments denominated in foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHP provides services under this Agreement relating
to any investment denominated in a foreign currency, a movement in exchange
rates may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
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Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities or, if so, whether you wish to authorize us generally to effect
transaction in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction in
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normal the
issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilised does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interest in the new issue or
interested in purchasing at the price at which transactions are taking place".
SCHEDULE III
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Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
1% per annum on portfolios of up to (pound)2,500,000
Large Portfolios (Over (pound)2,500,000) - by negotiation
<TABLE>
<CAPTION>
<S> <C>
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to(pound)10,000 0.5% on transactions up to(pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
</TABLE>
(Minimum commissions (pound)30 per contract)
All transactions are subject to a handling charge of (pound)12.50 per
transaction in the case of UK registered securities
((pound)20 for non-UK registered securities)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rate where applicable
FOR J O HAMBRO & PARTNERS LIMITED
23rd Jan. 1996 Date /s/ J.D. Hambro
FOR THE CLIENT*
9/2/96 Date
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/s/
/s/
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS.
The individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorised signatory should sign and insert the date. Please
let JOHP have a certified true copy of a Board resolution confirming the
appointment of JOHP as investment manager and authorizing the signature of the
Agreement. Pleas provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHP have a copy of
the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
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CLIENT AGREEMENT
EVESWISE RETIREMENT FUND
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J O HAMBRO & PARTNERS LIMITED
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 28TH DAY OF FEB., 1997.
BETWEEN:
(1) J O HAMBRO & PARTNERS LIMITED ("JOHP") a member of the Investment
Management Regulatory Organization Limited ("IMRO") and regulated in
the conduct of investment business by it, whose registered office is at
10 Park Place, London SW1A 1LP; and
(2) EVESWISE RETIREMENT FUND (portfolio name)
(hereafter known as the "Client")
of
10 PARK PLACE
LONDON SWIA 1LP
(address)
NOW IT IS HEREBY AGREED as follows:
APPOINTMENT AND STATUS OF CLIENT
3. The Client, a Private Customer as defined in the Rules of IMRO, hereby
appoints JOHP to act as discretionary investment manager, subject to
the terms and conditions hereof, in relation to the Client's
investments and cash which are from time to time placed under the
management of JOHP (the "Portfolio") and JOHP hereby agrees to
manage and administer the Portfolio. The appointment will commence on
the date on which this Agreement is delivered to JOHP by the Client
having been signed first by the Client then by JOHP. The assets
comprising the Portfolio and their opening value are set out in
Schedule 1.
MANAGEMENT OF INVESTMENTS
4. JOHP shall have complete discretion, power and authority to manage the
Portfolio and to make investments and changes in investments on the
Client's behalf and as the Client's agent within the investment policy
agreed between JOHP and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions
set out in Part II of Schedule II and to any guidelines, restrictions
and instructions specified in writing from time to time by the Client
or by the Client's duly authorized agent (written notice of whose
authority shall have been received by JOHP). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
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5. JOHP shall not be obliged to undertake the management of investments
the management of which would in its opinion be onerous to it.
DEALING TERMS
6. Subject as set out in paragraph 9, in effecting transactions for the
Portfolio JOHP shall seek best execution at all times and may (subject
to the investment policy set out in Part I of Schedule II) deal on such
markets or exchanges and with such counterparties as it thinks fit. The
Client agrees that all such transactions will be effected in accordance
with the rules and regulations of the relevant market or exchange and
that JOHP may take all such steps as may be required or permitted by
such rules and regulations and/or by good market practice.
7. The Client's investments or documents of title or certificates
evidencing title to investments or any other property belonging to the
Client will not be lent by JOHP to a third party except as otherwise
agreed between the Client and JOHP in writing.
8. JOHP may supplement the funds in the Portfolio by borrowing on the
Client's behalf but only for the purpose of funding short-term
deficiencies arising in the normal course of JOHP's duties hereunder to
an extent which is not material in the context of the Portfolio taken
as a whole. JOHP will not borrow money on the Client's behalf against
the security of any of the Client's investments, documents of title or
property.
9. JOHP may commit the Client to underwrite any issue or offer for sale
of securities without the Client's prior written consent.
10. JOHP may act as principal in any transaction for the Client provided
that JOHP shall secure for the Client best execution of such
transaction.
11. Subject to the IMRO Rules, JOHP may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
12. JOHP has the right under this Agreement to effect transactions on the
Client's behalf in investments the price of which may be being
stabilised. The attention of the Client is referred to the statement
contained in Schedule II relating to stabilisation. Signature of this
Agreement by or on behalf of the Client shall act as acknowledgment by
the Client of receipt of such statement prior to entry into this
Agreement.
CONFLICTS OF INTEREST
13. Subject to paragraphs 12 and 13, JOHP shall not undertake any
transactions on the Client's behalf in which JOHP has directly or
indirectly a material interest or have any relationship with another
party which may involve a conflict with JOHP's duty to the Client
unless that interest or relationship is disclosed in writing to the
Client.
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14. The Client's Portfolio may contain securities of which the issue or
offer for sale is underwritten, managed or arranged by an Associate (as
defined in the Rules of IMRO) of JOHP during the preceding twelve
months.
15. The Client understands that JOHP's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHP's directors or staff may from time to time be
directors of companies whose shares are held in the Portfolio.
16. The Client acknowledges that JOHP may acquire or dispose of on the
Client's behalf shares or units in any fund, company, trust or
Collective Investment Scheme (as defined by the Rules of IMRO) under
JOHP's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHP) if JOHP considers such an
investment to be appropriate for inclusion in or exclusion from the
Portfolio.
CUSTODIAL SERVICES
17. (a) Save where the Client has notified JOHP in accordance with
paragraph 15(b), in those cases where the Client is situated
in the United Kingdom registerable investments will be
registered in the name of an Eligible Custodian (as defined in
the Rules of IMRO) situated in the United Kingdom and
nominated by JOHP.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHP,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHP.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHP and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHP. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHP and Client's
documents of title may be held by that Associate at any time
after JOHP shall have given the Client written notice of its
intention to do so. Such notice shall specify the nature of
its association with such Associate.
ACCOUNTS, INTEREST AND DIVIDENDS
18. The following Client accounts, together with such others that may be
required, will be maintained by JOHP.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHP shall not lend the Client's
investments to any third party and shall
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not borrow money on the Client's behalf against the security
of the Client's investments.
(b) CAPITAL ACCOUNT
All uninvested cash will be held in this account by a bank
chosen by JOHP. The account will be debited with the cost of
purchases on the Client's behalf and with sums due and payable
by the Client to JOHP and will be credited with the net
proceeds of sales on the Client's behalf. Money drawn on
behalf of the Client from the account shall not exceed the
total of money held in the account on behalf of the Client at
that time. Interest will be paid on sums standing to the
credit of the account and held on the Client's behalf at the
prevailing market rate. The interest will be paid quarterly
and will be credited to the Income Account on the Client's
behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHP in writing that the Client wishes cash in
the Portfolio to be held outside the United Kingdom, JOHP will
be (subject to applicable laws and regulations) hold such cash
in a bank account outside the United Kingdom.
19. The Client may at any time instruct JOHP to realize any or all of the
investments in the Portfolio and may withdraw any sum standing to the
credit of the Capital Account and held on the Client's behalf.
20. JOHP shall maintain separate ledger accounts on the Client's behalf.
All debits from and credits to the Investment Account and/or Capital
Account and/or Income Account on the Client's behalf shall be recorded
in the ledger accounts, and statements of
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account showing all transactions, payments and receipts up to and
including 5th April of each year will be sent to the Client as soon as
reasonably practicable after that date.
COMMUNICATIONS
21. In the interests of proper administration of the Portfolio and for
related investment purposes JOHP, its representatives or employees, may
call upon the Client by telephone, visit or otherwise communicate
orally with the Client without express invitation. The Client's
attention is drawn to the fact that the Client 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 of or
in consequence of such a call.
ADMINISTRATION
22. Contract notes in respect of every purchase and sale on the Client's
behalf will be sent to the Client before the close of business on the
day next following the day on which the transaction was effected.
23. JOHP will on the Client's request forward details of all transactions
on the Client's behalf to the Client's tax advisor without additional
charge.
24. The Client may (upon giving reasonable notice) inspect all copy
contract notes, vouchers and copies of entries in books or electronic
recording media kept by JOHP or to which JOHP has access relating to
the transactions effected by JOHP on the Client's behalf and those
records will be maintained by JOHP or JOHP will ensure that they are
maintained for not less than seven years from the date of the relevant
transaction.
25. All documents will be sent to the Client at the address given above
unless and until otherwise directed in writing. The Client agrees that
it will immediately notify JOHP in writing of any change of address,
and that JOHP will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
26. JOHP will prepare reviews of the Portfolio incorporating an up-to-date
valuation of each investment comprised in the Portfolio and a statement
of the basis on which it was valued on a six monthly basis or at such
other frequency as may be agreed between JOHP and the Client. Such
reviews shall be prepared as at such half yearly or other dates as
shall be agreed between JOHP and the client from time to time (each
such date being referred to as a "Valuation Date"), and JOHP will send
such reviews to the Client within twenty-five business days of each
Valuation Date.
27. On each Valuation Date cash will be valued at its face value and each
investment will be valued at its middle market price on the relevant
stock exchange at the close of business on such day or (if not a
business day) on the nearest prior business day as is supplied by
"Exshare" or any other suitable information service chosen by JOHP
(which figures shall be binding save for manifest error). For the
purpose of valuing in
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sterling any foreign currency or any security listed on a foreign stock
exchange the price of which is quoted in currency other than sterling,
the valuation and middle market exchange rates supplied by "Exshare" or
any other suitable information service chosen by JOHP shall be applied.
In the absence of that valuation or exchange rate, the middle market
price as determined by the Daily Official List of The Stock Exchange or
the equivalent list for any relevant stock exchange will be applied. If
none of the foregoing methods of valuation are available, the
investments in question will be valued in such other manner (by JOHP or
such other person selected by JOHP) as shall in JOHP's opinion be fair.
28. JOHP accepts no liability for any period longer than 25 business days
between any Valuation Date and the despatch of a review to the Client
of his Portfolio which has elapsed as result of any act or omission of
any third party.
VOTING AND OTHER RIGHTS
29. JOHP will be entitled at its discretion and without notice to the
Client to procure or to refrain from procuring the exercise of voting
and other rights and privileges attaching to the investments comprised
in the Portfolio and to accede or refrain from acceding to any
compromise or arrangement in relation to any scheme of arrangement or
scheme for reconstruction or amalgamation involving any such
investment. JOHP will not forward to the Client any circulars, notices
or proxy cards received in respect of investments comprised in the
Portfolio.
FEES, COMMISSIONS AND EXPENSES
30. (a) The Client will pay a management fee to JOHP in respect of
the period beginning with first receipt by JOHP of any
investments or money from the Client and ending with a
Valuation Date (as defined in paragraph 24) and each period
thereafter starting with the day after any Valuation Date and
ending on the next Valuation Date (or the Termination Date as
defined in paragraph 39 if sooner).
(b) The management fee shall be calculated in accordance with the
'Scale Rates and Charges' set out in Schedule III.
(c) The management fee shall be payable not later than 14 days
after despatch to the Client of an invoice which shall be sent
to the Client as soon as is reasonably practicable after each
Valuation Date. Unless otherwise instructed the Client's
Capital Account will be debited with the amounts due to JOHP
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHP for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
31. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
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32. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon
(if applicable). The Client recognizes that JOHP may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHP's
clients, one of whom may be the Client, or from return commissions
which benefit JOHP shall be entitled to retain. JOHP will be free to
accept and retain as an addition to its fees and commissions any other
commissions which it receives in the course of its dealing on the
Client's behalf: all such benefits and receipts shall supplement any
other remuneration receivable by JOHP in connection with transactions
effected by JOHP with or for the Client under this or any other
agreement with the Client and the Client consents to all such benefit
and receipts as are referred to above without prior disclosure of the
same to the Client on a case-by-case basis provided that JOHP
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHP receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
33. JOHP shall be entitled to alter the manner of computing or charging its
fees, commissions and expenses or of paying interest on the money held
on the Client's behalf in the Capital Account (including with prejudice
to the generality of the foregoing its scale rates and charges) by
giving one month's prior notice in writing to the Client.
RESPONSIBILITY AND INSURANCE
34. JOHP will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHP or any of its
employees. Subject to the above, JOHP will not be responsible or liable
for any claim, loss, damage, expense or costs arising by reason of any
of the following:
(a) any investment decision taken and acted upon in accordance
with the terms of this Agreement; or
(b) any delay or default in the performance of its obligations
under this Agreement arising in consequence of any event or
circumstance beyond the reasonable control of JOHP; or
(c) any act or omission on the part of any of the banks or nominee
companies controlled by them or other eligible custodians as
referred to in paragraph 15 or any other person to which any
of them shall have delegated its function or on the part of
any other third party whatsoever; or
(d) any consequential loss suffered in consequence of any act or
omission of JOHP or any breach of JOHP of any term of this
Agreement.
35. The Client agrees to indemnify and keep indemnified JOHP from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred
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by JOHP arising out of the breach by the Client of any warranty or by
reason of any failure by the Client to comply with and/or perform any
of the terms and conditions contained in this Agreement.
36. Where the Client is a joint account (whether or not a trust account)
JOHP shall unless and until otherwise directed in writing by all the
persons named in the joint account, be entitled to act on the
instructions of any of them and shall not in any whatsoever be liable
to the others for doing so.
37. JOHP has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHP or any dishonesty
of employees of JOHP.
38. Under Section 54 of the Financial Services Act 1986 The Securities and
Investments Board has established a scheme for compensating investors
by which the Client may be entitled to compensation in the event of
JOHP's inability to meet any liabilities to the Client. JOHP will make
available to the Client upon request a statement describing the
Client's rights to compensation under the scheme.
DELEGATION AND USE OF AGENTS
39. JOHP may delegate any of its functions under this Agreement to an
Associate and may provide information about the Client and the
Portfolio to any such Associate but JOHP's liability to the Client for
all matters so delegated shall not be affected thereby. JOHP shall give
to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
40. JOHP may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHP to perform its services under this Agreement. JOHP
undertakes to act in good faith and with due diligence in the choice
and use of such agents.
TERMINATION OF AGREEMENT
41. This Agreement may be terminated by either party by giving written
notice of termination to the other at any time. Termination shall take
effect on the day upon which the other party actually receives the
notice (the "Termination Date") provided that, where the client is a
joint account, notice of termination by JOHP shall be given to every
person named in the joint account and in such circumstances the
Termination Date shall be deemed to be the day after the date of
posting by first class recorded delivery or other appropriate means to
all persons named in the joint account.
42. Upon the Termination Date, JOHP will complete expeditiously all
transactions in progress at termination but will not execute any
further transactions for the Client. Upon all fees, commissions,
expenses and other sums due to it and any other liabilities for which
it may be or become liable in connection with the management of the
Portfolio being settled or adequately secured to the satisfaction of
JOHP, JOHP will ensure that all investments and cash balances held on
the Client's behalf will, after any outstanding security registration,
stock exchange settlements and other administrative
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matters have been completed and as soon as reasonably practicable, be
transferred to the Client or dealt with in accordance with the Client's
instructions, in all cases at the cost of the Client.
43. Termination will not affect accrued rights, existing commitments or any
contractual provision intended to survive termination and will be
without penalty or other additional payment except that JOHP may charge
the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHP necessarily incurs in
terminating this Agreement; and
(c) any losses necessarily realized in settling or concluding
outstanding obligations.
44. The death, bankruptcy or other incapacity or, in the case of a body
corporate, the cessation of business of the Client or a petition being
presented or a meeting being convened to consider a resolution for the
liquidation of the Client shall not of itself terminate JOHP's
appointment; but JOHP may at its discretion treat its receipt of actual
notice of any such events as if it were a written notice of termination
from the Client.
45. If the Client is a joint account the Client's obligations under this
Agreement shall be joint and several. On the death of any of the
persons constituting the Client (being survived by any such other
person), the Agreement shall not terminate and, except in the case of
trustees, the interest of the deceased in the Portfolio shall
automatically enure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHP.
CLIENT WARRANTIES
46. The Client warrants that the Client is the beneficial owner (or the
duly authorized agent of the beneficial owner) of the whole of the
Portfolio free from all liens, charges, encumbrances and restrictions
on transfer except insofar as advised by the Client to JOHP, and will
so remain during the currency of this Agreement.
47. The Client warrants that the Client is empowered to enter into this
Agreement without the consent or authority of any other party and in
the case of a Client being a body corporate the Client warrants that by
entering into this Agreement it is not nor will it be in breach of its
Memorandum or Articles of Association or any other relevant document.
GENERAL
48. Terms and expressions defined in the rules of IMRO for the time being
in force shall where the context so admits bear the same meaning in
this Agreement.
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49. The Clause headings in this Agreement are included for ease of
reference only and shall not affect its interpretation.
50. The Schedules to this Agreement are an integral part of it.
51. If the Client is an individual this Agreement shall be binding on his
legal personal representatives.
52. This Agreement is personal to the parties hereto and shall not be
capable of assignment.
53. Subject to clause 31, no change, alteration or modification to this
Agreement or the Schedules hereto shall be made unless in writing and
signed by the parties hereto.
54. Notice required or authorized to be served hereunder must be addressed
to the address of the recipient stated above or to such other address
as may have been notified in writing by either party hereto to the
other as its address for the service of notices. In the case of
notice served by the Client from outside the United Kingdom and of
notice served upon the Client at an address outside the United Kingdom,
the notice shall be sufficiently served if served by pre-paid letter,
cable or telex. In the case of notice service by the Client from
within the United Kingdom and of notice served upon the Client at an
address within the United Kingdom the notice shall be sufficiently
served if served by pre-paid letter.
55. If the Client makes a complaint to JOHP verbally or in writing about
any service JOHP has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHP's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The
Client has the right to refer any complaint to IMRO if the Client is
not satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHP.
56. Each party to this Agreement shall respect and protect the
confidentiality of information acquired in consequence of it and shall
not disclose such information to any third party save in the course of
giving effect to this Agreement or as may be required by law, or where
requested by regulatory authorities, or to their professional advisors
where reasonably necessary for the performance of their professional
services.
57. This Agreement is subject to English law and the parties hereto hereby
submit to the jurisdiction of the English Courts in respect of it.
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SCHEDULE I
THE PORTFOLIO
Valuation and composition of Portfolio
(see attached letter/opening valuation - where applicable)
SCHEDULE II
INVESTMENT POLICY, GUIDELINES AND RESTRICTIONS
PART I - Investment Policy including basis
of measurement of performance
The investment objectives are to maintain a maximum total return commensurate
with safety and the protection of the underlying value of the capital of the
fund.
The performance will be measured against the F.T. All Share Index, any other
appropriate Index or measure of performance agreed upon by JOHP and the Client.
PART II - Guidelines and Restrictions
1. There will be no restrictions placed on the types of investment in
which the money comprised in the Portfolio will be invested provided
that the services to be provided by JOHP will not include advising on
or effecting Contingent Liability Transactions, nor will they, without
the express authority of the Client, relate to options, futures or
contracts for differences (or to any right or interest in such
investments).
2. The contents of the Portfolio may be invested in any market save for
the following:
There shall be no restriction on the amount of monies or proportion of
the Portfolio invested in any one investment or type of investment
permitted hereunder provided that, subject to the provisions relating
to overdraft contained in paragraph 6 of this Agreement, under no
circumstances will JOHP make investments on behalf of the Client to a
value in excess of the aggregate of the value of the funds and
securities held by JOHP on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
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PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHP provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
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As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
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SCHEDULE III
<TABLE>
<CAPTION>
<S> <C>
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to(pound)10,000 0.5% on transactions up to(pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
</TABLE>
(Minimum commissions (pound)30 per contract)
All transactions are subject to a handling charge of (pound)12.50 per
transaction in the case of UK registered securities
((pound)20 for non-UK registered securities)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
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FOR J O HAMBRO & PARTNERS LIMITED
28th Feb., 1997 Date /s/ Christopher Mills
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FOR THE CLIENT* For and on behalf of
EVESWISE RETIREMENT FUND
28th Feb., 1997 Date /s/ Christopher Mills
- ----------------------------------------- -------------------------
for Eveswise Retirement Fund
- ----------------------------
- ----------------------------
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHP have a certified true copy of a Board resolution confirming the
appointment of JOHP as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHP have a copy of
the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
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