UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
FIGGIE INTERNATIONAL INC.
----------------------------------------------------------------
(Name of issuer)
Class A Common Stock, par value $.01 per share
----------------------------------------------------------------
(Title of class of securities)
316828508
-----------------------------
(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)
July 21, 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.
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 1 of 198 Pages
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 2 of 198 Pages
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
England
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY ---------------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 736,100
REPORTING ---------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
---------------------------------------------------------
10. SHARED DISPOSITIVE POWER
736,100
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
736,100
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IA, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 3 of 198 Pages
- --------------------------------------------------------------------------------
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
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 321,500
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
321,500
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
321,500
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 4 of 198 Pages
- --------------------------------------------------------------------------------
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
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 321,500
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
321,500
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
321,500
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 5 of 198 Pages
- --------------------------------------------------------------------------------
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
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 736,100
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
736,100
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
736,100
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 6 of 198 Pages
- --------------------------------------------------------------------------------
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
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 736,100
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
736,100
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
736,100
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
HC, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 7 of 198 Pages
- --------------------------------------------------------------------------------
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
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 736,100
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
736,100
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
736,100
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
HC, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 8 of 198 Pages
- --------------------------------------------------------------------------------
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
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 200,000
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
200,000
- --------------------------------------------------------------------------------
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)
1.5%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 9 of 198 Pages
- --------------------------------------------------------------------------------
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Oryx International Growth Fund 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
Guernsey (Channel Islands)
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 150,000
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
150,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
150,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.1%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- --------------------------------------------------------------------------------
CUSIP No. 316828508 Page 10 of 198 Pages
- --------------------------------------------------------------------------------
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Consulta (Channel Islands) 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
Guernsey (Channel Islands)
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH 150,000
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
150,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
150,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.1
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IA, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
STATEMENT ON SCHEDULE 13D
ITEM 1. SECURITY AND ISSUER
This Statement on Schedule 13D relates to the Class A Common Stock, par
value $0.10 per share (the "Common Stock"), of Figgie International Inc., a
Delaware corporation (the "Company"), which has its principal executive offices
at 4420 Sherwin Road, Willoughby, Ohio 44094.
ITEM 2. IDENTITY AND BACKGROUND.
2 (a-c, f).
I. Filing Parties:
This Statement is filed on behalf of the following nine persons, who
are collectively referred to as the "Filing Parties":
1. 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.
2. 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.
3. 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 as
well as private clients.
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 Oryx, and
as co-investment adviser to NASCIT and American Opportunity Trust.
5. 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 Mills to NASCIT.
6. North Atlantic Smaller Companies Investment Trust plc ("NASCIT"),
formerly named Consolidated Venture Trust plc, is a corporation
organized under the laws of England
Page 11 of 198 Pages
<PAGE>
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.
7. 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.
8. Oryx International Growth Fund Limited ("Oryx") is a corporation
organized under the laws of the Island of Guernsey with its principal
office and business at Bermuda House, St. Julian's Avenue, St. Peter
Port, Guernsey. Oryx is a closed-end investment company. J O Hambro &
Partners and Consulta serve as investment advisers to Oryx.
9. Consulta (Channel Islands) Limited ("Consulta") is a corporation
organized under the laws of the Island of Guernsey with its principal
office and business at Bermuda House, St. Julian's Avenue, St. Peter
Port, Guernsey. Consulta is principally engaged in the business of
investment management and advising and serving as investment manager of
Oryx.
II. Control Relationships:
J O Hambro & Partners is a majority-owned subsidiary of J O Hambro
Asset Management, which is a wholly-owned subsidiary of J O Hambro & Company.
Christopher Mills owns 99% of the equity of GFS, and serves as a
director of J O Hambro & Partners and Oryx and as executive director of NASCIT
and American Opportunity Trust.
Consulta is a wholly-owned subsidiary of Consulta Limited, which is a
corporation organized under the laws of England with its principal office and
business at 20 St. James's Street, London SW1A 1ES England. Consulta Limited is
principally engaged in the business of investment management and advising.
III. Executive Officers and Directors:
In accordance with the provisions of General Instruction C to Schedule
13D, information concerning the executive officers and directors of the Filing
Parties is included in Schedule A hereto and is incorporated by reference
herein.
(d) Criminal Proceedings
During the last five years, neither the Filing Parties (or a
controlling entity thereof) nor any executive officer or director of any of the
Filing Parties (or a controlling entity thereof) has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
Page 12 of 198 Pages
<PAGE>
(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.
The Filing Parties used their working capital funds to purchase the
shares of Common Stock of the Company (the "Shares") to which this statement
relates.
The amount of funds used to date to acquire the Shares is approximately
$9,006,966 (exclusive of brokerage fees and commissions).
ITEM 4. PURPOSE OF TRANSACTION.
The Shares held directly or indirectly by the Filing Parties were
acquired 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 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, as amended; or (j) any action similar to those
enumerated above.
Page 13 of 198 Pages
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(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>
Number of
Number of Shares: Number of Shares:
Filing Aggregate Shares: Sole Shared Sole or Shared
Party Number of Power to Power to Power to Approximate
- ----- Shares: Vote Vote Dispose Percentage*
------- ---- ---- ------------- -----------
<S> <C> <C> <C> <C> <C>
J O Hambro 736,100 0 736,100 736,100 5.4%
& Company
J O Hambro Asset 736,100 0 736,100 736,100 5.4%
Management
J O Hambro 736,100 0 736,100 736,100 5.4%
& Partners
Christopher H.B. Mills 736,100 0 736,100 736,100 5.4%
GFS 321,500 0 321,500 321,500 2.2%
NASCIT 321,500 0 321,500 321,500 2.2%
American Opportunity Trust 200,000 0 200,000 200,000 1.5%
Oryx 150,000 0 150,000 150,000 1.1%
Consulta 150,000 0 150,000 150,000 1.1%
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Based on 13,708,925 shares of Class A Common Stock, par value $.10
per share outstanding as of July 21, 1997, which is based on information
reported in the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997.
Page 14 of 198 Pages
<PAGE>
(c) In the 60 days prior to the date of the filing of this Statement,
the Filing Parties effected no transactions in the Common Stock other than those
set forth in the following table:
No. of Price
Date Filing Party Shares (US$) Broker
- ---- ------------ ------ ----- ------
21/07/97 NASCIT 35,000 $14.1563 Legg Mason
21/07/97 Oryx 25,000 $14.1563 Legg Mason
29/08/97 NASCIT 6,500 $13.7500 Legg Mason
02/09/97 NASCIT 15,000 $13.7500 Legg Mason
All of the above transactions were effected in the open market and were
purchases.
(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
beneficially owned by J O Hambro & Partners. The shareholders of NASCIT,
American Opportunity Trust and Oryx have an economic interest in the dividends
from, and the proceeds of sales of, Common Stock beneficially owned by NASCIT,
American Opportunity Trust and Oryx, respectively.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
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 Mills and an agreement entered into between NASCIT and J O
Hambro & Partners, each dated as of January 7, 1993, respectively.
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 Oryx, Consulta has the right to transfer and
vote the shares of Common Stock of the Company pursuant to an agreement dated as
of February 16, 1995 between Oryx and Consulta. As investment adviser to Oryx, J
O Hambro & Partners has the right to transfer the shares of Common Stock of the
Company pursuant to an agreement dated as of February 16, 1995 between J O
Hambro & Partners and Consulta.
As investment manager for private clients Sannafi Limited, Seaway
Limited, Peak Investments, Lord Stevens of Ludgate Pension Fund, Mishal Kanoo,
Mr. & Mrs. Jan Gilbert and The Superannuation Fund of Wigan Richardson
International Limited, J O Hambro & Partners has 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.
Page 15 of 198 Pages
<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following documents are filed herewith:
(a) Secondment Services Agreement dated as of January 7, 1993
among NASCIT, GFS and Christopher Harwood Bernard 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 January 25, 1996
between J O Hambro & Partners and Peak Investments.
(e) Investment Management Agreement dated as of February 9, 1996
between J O Hambro & Partners and Lord Stevens of Ludgate
Pension Fund.
(f) Investment Management Agreement dated as of February 16, 1995
between Consulta and J O Hambro & Partners.
(g) Investment Management Agreement dated as of February 16, 1995
between Oryx and Consulta.
(h) Administration, Management and Custody Management Agreement
dated as of January 7, 1993 between J O Hambro & Partners and
American Opportunity Trust.
(i) Investment Management Agreement dated as of June 3, 1996
between J O Hambro & Partners and Mishal Kanoo.
(j) Investment Management Agreement dated as of October 28, 1996
between J O Hambro & Partners and Mr. & Mrs. Jan Gilbert.
(k) Investment Management Agreement dated as of February 26, 1997
between J O Hambro & Partners and the Superannuation Fund of
Wigan Richardson International Limited.
(l) Joint Filing Agreement dated as of September 9, 1997 among
NASCIT, GFS, J O Hambro & Partners, J O Hambro Asset
Management, J O Hambro & Company, American Opportunity Trust,
Oryx, Consulta and Christopher Harwood Bernard Mills.
Page 16 of 198 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: 9 September 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 Joint Filing Agreement
filed herewith.
Page 17 of 198 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 Limited1
Director, J O Hambro & Company
Name: James Daryl Hambro
Managing Director)
Citizenship: British
Business Address: J O Hambro & Company Limited
- -------------------
1 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.
Page 18 of 198 Pages
<PAGE>
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro & Company
Managing Director, J O Hambro & Partners
Director, J O Hambro Asset Management
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
Page 19 of 198 Pages
<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
Page 20 of 198 Pages
<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
Name: James Daryl Hambro
(Director)
Citizenship: British
Business Address: J O Hambro & Partners Limited
10 Park Place
London SW1A 1LP
England
Page 21 of 198 Pages
<PAGE>
Principal Occupation: Managing Director, J O Hambro & Partners
Managing Director, J O Hambro & Company
Director, J O Hambro Asset Management Limited
Page 22 of 198 Pages
<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
Director, J O Hambro Asset Management
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
Principal Occupation: Executive Director, NASCIT
Page 23 of 198 Pages
<PAGE>
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
Name: Malcolm Robert King
(Director)
Citizenship: British
Business Address: J O Hambro & Partners Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Director, J O Hambro & Partners
Page 24 of 198 Pages
<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
Page 25 of 198 Pages
<PAGE>
Name: Robert D. le P. Power
(Director)
Citizenship: British
Business Address: SouthCoast Capital Corporation2
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.3
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 Limited4
Buchanan House
3 St. James's Square
London SW1Y 4JU
England
Principal Occupation: Director, Buchanan Partners Limited
- ------------------
2 SouthCoast Capital Corporation principally engages in the brokerage
business.
3 Bear Stearns principally engages in the brokerage business.
4 Buchanan Partners Limited principally engages in the investment
management business.
Page 26 of 198 Pages
<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.
Page 27 of 198 Pages
<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 Limited5
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 Company6
90 Ferris Hill Road
New Canaan, Connecticut 06840
USA
Principal Occupation: President, Gildea Management Company
- ---------------
5 Covey Advertising Limited is principally engaged in the advertising
business.
6 Gildea Management Company is principally engaged in the investment
management business.
Page 28 of 198 Pages
<PAGE>
Name The Hon. James J. Nelson
(Director)
Citizenship: British
Business Address: Foreign & Colonial Ventures7
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.8
7 West Nile Street
Glasgow G2 2PX
Scotland
Principal Occupation: Director, Murray Johnstone Ltd.
Name: Philip Ehrmann
(Director)
Citizenship: British
Business Address: Gartmore Investment Management Ltd.9
Gartmore House
16 - 18 Monument Street
London EC3R 8AJ
England
- ---------------
7 Foreign & Colonial Ventures is principally engaged in the investment
management business.
8 Murray Johnstone Ltd. is principally engaged in the investment
management business.
9 Gartmore Investment Management Limited is principally engaged in the
investment management business.
Page 29 of 198 Pages
<PAGE>
Principal Occupation: Investment Manager, Gartmore
Investment Management Ltd.
Page 30 of 198 Pages
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of Oryx International Growth Fund Limited
("Oryx") as of the date hereof.
Name: Nigel Kenneth Cayzer
(Chairman)
Citizenship: British
Business Address: 14S-149 Borough High Street
London SE1 1NP
England
Principal Occupation: Chairman, Oriel Group plc10
Name: His Excellency Salim Hassan Macki
(Director)
Citizenship: Omani
Business Address: P.O. Box 4160
Postal Code 112
Ruwi
Sultanate of Oman
Principal Occupation: Head of Economic & Technical Dept., Ministry
of Foreign Affairs, Oman
Name: Patrick John McAfee
(Director)
Citizenship: British
Business Address: Morgan Grenfell11
23 Great Winchester Street
London EC2P 2AX
England
Principal Occupation: Company Director
Name: Christopher Harwood Bernard Mills
- -------------
10 Oriel Group plc is a holding company for specialist insurance brokers.
11 Morgan Grenfell is a merchant bank.
Page 31 of 198 Pages
<PAGE>
(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: Harald Lungershausen
(Director)
Citizenship: German
Business Address: Toblerstrasse 99
8044 Zurich
Switzerland
Principal Occupation: Company Director
Name: Mohamed Hassan Ghurlam Habib
(Director)
Citizenship: Omani
Business Address: Oman National Insurance Company12
PO Box 2254
Postal Code 112
Ruwi
Sultanate of Oman
Principal Occupation: Chief Executive, Oman National Insurance
Company, SAOG
Name: Rupert Arthur Rees Evans
(Director)
Citizenship: British
- -------------
12 Oman National Insurance Company is principally engaged in the insurance
business.
Page 32 of 198 Pages
<PAGE>
Business Address: Ozanne van Leuven Perrot & Evans13
PO Box 186
1 Le Marchant Street
St. Peter Port
Guernsey
Channel Islands
Principal Occupation: Guernsey Advocate
Partner, Ozanne van Leuven Perrot & Evans
Name: Hussan Al Nowais
Citizenship: United Arab Emirates
Business Address: Emirate Holdings
P.O. Box 984
Abu Dhabi
United Arab Emirates
Principal Occupation: Chairman and Managing Director, Emirate
Holdings
- ------------
13 Ozanne van Leuven Perrot & Evans is a Law Firm.
Page 33 of 198 Pages
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of Consulta (Channel Islands) Limited
("Consulta") as of the date hereof.
Name: Gary Michael Brass
(Director)
Citizenship: British
Business Address: 20 St. James's Street
London SW1A 1ES
England
Principal Occupation: Managing Director, Consulta
Name: Jeremy Caplan
(Director)
Citizenship: British
Business Address: P.O. Box 72
44 Esplanade
St Helier
Jersey
Principal Occupation: English Solicitor
Name: Peter Heaps
(Director)
Citizenship: British
Business Address: Management International (Guernsey)
Limited14
Bermuda House
St Julian's Avenue
St Peter Port
Guernsey
Principal Occupation: Managing Director
Management International (Guernsey) Limited
- --------------
14 Management International (Guernsey) Limited is principally engaged in
the investment management business.
Page 34 of 198 Pages
<PAGE>
Name: Rupert Arthur Rees Evans
(Director)
Citizenship: British
Business Address: P.O. Box 186
1 Le Marchant Street
St Peter Port
Guernsey
Principal Occupation: Guernsey Advocate
Partner, Ozanne van Leuven
Perrot & Evans
Page 35 of 198 Pages
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of Consulta Limited, the parent of Consulta
(Channel Islands) Limited.
Name: Harald Alejandro Lamotte
(Director)
Citizenship: British
Business Address: 20 St. James's Street
London SW1A 1ES
England
Principal Occupation: Investment Fund Manager,
Consulta Limited
Name: Gary Michael Brass
(Director)
Citizenship: British
Business Address: 20 St. James's Street
London SW1A 1ES
England
Principal Occupation: Investment Fund Manager,
Consulta Limited
Name: Nigel Douglas Pilkington
(Director)
Citizenship: British
Business Address: 20 St. James's Street
London SW1A 1ES
England
Principal Occupation: Investment Fund Manager,
Consulta Limited
Name: Susan Diana Frances Johns
(Director)
Citizenship: British
Page 36 of 198 Pages
<PAGE>
Business Address: 20 St. James's Street
London SW1A 1ES
England
Principal Occupation: Investment Fund Manager,
Consulta Limited
Name: Thierry Verhaeghe de Naeyer
(Director)
Citizenship: Belgian
Business Address: 20 St. James's Street
London SW1A 1ES
England
Principal Occupation: Investment Fund Manager,
Consulta Limited
Page 37 of 198 Pages
<PAGE>
Exhibit Index
Document Page
- -------- ----
The following documents are filed herewith:
(a) Secondment Services Agreement dated as of January 7, 1993
among NASCIT, GFS and Christopher Harwood Bernard 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 January 25, 1996
between J O Hambro & Partners and Peak Investments.
(e) Investment Management Agreement dated as of February 9, 1996
between J O Hambro & Partners and Lord Stevens of Ludgate
Pension Fund.
(f) Investment Management Agreement dated as of February 16, 1995
between Consulta and J O Hambro & Partners.
(g) Investment Management Agreement dated as of February 16, 1995
between Oryx and Consulta.
(h) Administration, Management and Custody Agreement dated as of
January 7, 1993 between J O Hambro & Partners and American
Opportunity Trust.
(i) Investment Management Agreement dated as of June 3, 1996
between J O Hambro & Partners and Mishal Kanoo.
(j) Investment Management Agreement dated as of October 28, 1996
between J O Hambro & Partners and Mr. & Mrs. Jan Gilbert.
(k) Investment Management Agreement dated as of February 26, 1997
between J O Hambro & Partners and the Superannuation Fund of
Wigan Richardson International Limited.
(l) Joint Filing Agreement dated as of September 9, 1997 among
NASCIT, GFS, J O Hambro & Partners, J O Hambro Asset
Management, J O Hambro & Company, American Opportunity Trust,
Oryx, Consulta and Christopher Harwood Bernard Mills.
Page 38 of 198 Pages
EXHIBIT (a)
SECONDMENT SERVICES AGREEMENT
AMONG
NASCIT, GFS AND
CHRISTOPHER MILLS
Page 39 of 198 Pages
<PAGE>
DATED 7th January, 1993
CONSOLIDATED VENTURE TRUST PLC
and
GROWTH INVESTMENT MANAGEMENT LIMITED
and
CHRISTOPHER HARWOOD BERNARD MILLS
----------------------------------
SECONDMENT SERVICES AGREEMENT
----------------------------------
Allen & Overy
London
THIS AGREEMENT is made on 7th January, 1993.
Page 40 of 198 Pages
<PAGE>
BETWEEN:
(1) CONSOLIDATED VENTURE TRUST PLC of 11 Devonshire Square, London EC2M 4YR
(the "Company");
(2) GROWTH INVESTMENT MANAGEMENT LIMITED of 10 Clivedon Place, London SW1W
6LA ("GIM"); and
(3) CHRISTOPHER HARWOOD BERNARD MILLS of 10 Clivedon Place, London SW1W 6LA
(the "Executive").
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
(a) In this Agreement:
"Administration, Management and Custody Agreement"
means an administration, management and custody agreement made on or
about the same date as this Agreement between the Company and JO Hambro
& Partners Limited;
"Associated Company" means:
i. a company which is not a subsidiary of the
Company but whose issued equity share
capital (as defined in section 744 of the
Companies Act 1985) is owned as to at least
20 per cent. by the Company or one of its
Subsidiary Companies; and
ii. a Subsidiary Company of a company within (a)
above;
"Board of Directors"
means the board of directors of the Company or a committee of the board
of directors of the Company;
"the Company"
includes each of its branches if any;
"Group"
means the Company, and its Subsidiary Companies and Associated
Companies for the time being and "Group Company" means any one of them;
Page 41 of 198 Pages
<PAGE>
"Investments"
includes any asset, right or interest falling within Part I of Schedule
1 of the Financial Services Act 1986 and any other asset, right or
interest in respect of property of any kind wherever situate whether or
not producing income;
"Shareholders' Funds"
means the amount of the nominal capital of the Company for the time
being issued and paid up or credited as paid up, the amount repayable
by the Company in respect of any borrowings repayable more than three
years after initially made (but excluding convertible debt) and the
amounts standing to the credit of the consolidated capital and revenue
reserves (including without limitation share premium account, capital
redemption reserve and profit and loss account) of the Company and its
Subsidiary Companies properly reflected in an audited balance sheet of
the Company prepared in accordance with recognised accounting
principles but after making such adjustments as may be necessary to
reflect:
(a) the Board of Directors' valuation of all unquoted investments
in accordance with a statement of value prepared for and
approved by the Board of Directors in accordance with
procedures and on a basis reviewed by the Company's auditors;
and
(b) the payment of any dividend or the making of any other
distribution to shareholders of the Company.
"Subsidiary Company" means a subsidiary as defined by section 736 of
the Companies Act 1985; and
"Working Day" means a day other than a Saturday, Sunday or bank holiday
or other public holiday in England.
(b) References to persons include bodies corporate and
unincorporated associations and references to companies
include any bodies corporate.
(c) Any reference to a statutory provision includes any statutory
modification or re-enactment of it for the time being in
force.
(d) Subclauses (1) to (3) above apply unless the contrary
intention appears.
(e) The headings in this Agreement do not affect its construction.
(f) References to amounts payable shall be exclusive of value
added tax thereon so that value added tax shall be payable in
addition if and to the extent chargeable.
2. Services
Page 42 of 198 Pages
<PAGE>
(a) GIM shall provide the services of the Executive to the Company
as described and on the terms set out in this Agreement ("the
Services"). The parties intend the Services to be provided by
secondment of the Executive from GIM to the Company.
(b) GIM shall employ the Executive for the purposes of enabling it
to provide the Services.
(c) The provision of the Services by GIM shall be deemed to take
effect from the date of execution of this Agreement ("the
Commencement Date").
(d) GIM and the Executive warrant to the Company that by entering
into this Agreement and performing the Services they will not
be in breach of any contract or other obligation binding on
them.
3. Services of the Executive
(a) GIM shall, and shall procure that the Executive shall, use
their best endeavours to protect and further the interests of
the Company giving the full benefit of the Executive's
knowledge and expertise.
(b) GIM shall procure that the Executive shall serve as chief
executive and director of the Company, subject to the Company
appointing the Executive as such.
(c) The Executive shall perform the functions from time to
time assigned to or vested in him by the Board of Directors
and in particular he shall be responsible (subject to such
authorisation procedures as the Board of Directors may specify
and except to the extent that the Board shall not require the
services of the Executive in respect of all or part of the
Investments of the Company) for:
i. keeping under review the investments from
time to time held by the Company;
ii. deciding upon purchases and sales and other
transactions in respect of investments and
subscriptions to issues of investments,
including underwriting commitments on behalf
of the Company and otherwise determining
when the Company should invest, realise and
re-invest its assets and exercise all rights
attaching to its assets;
iii. searching out and evaluating investment
opportunities for the Company;
Page 43 of 198 Pages
<PAGE>
iv. analysing the progress of companies in which
the Company has invested;
v. submitting to the Board of Directors such
reports and information regarding
investments as the Board of Directors shall
reasonably require; and
vi. recommending to the Board of Directors any
future developments or changes to the
investment policy of the Company.
(d) The Executive shall faithfully serve the Company, and GIM
shall procure that the Executive shall devote 50 per cent. of
his time during normal business hours to the provision of the
services and at such additional times as are necessary for the
proper fulfilment of those services, but the Executive shall
not be required to provide such services at such times as he
is on holiday (as provided for in Clause 7), nor at such times
(being not more than 90 Working Days in any period of 12
consecutive months) when the Executive is incapacitated by
reason of illness or injury.
(e) GIM shall, and shall procure that the Executive shall, accept
appointments to such offices and enter into such agreements as
the Company shall deem reasonably necessary for the proper
provision of the Services.
(f) GIM shall, and shall procure that the Executive shall,
disclose forthwith to the Board of Directors any conflict of
interest which may arise in connection with the performance of
the Services as a result of any other present or future
appointment, employment or interest of GIM or the Executive
(other than that which concerns a Group Company).
(g) The Executive shall provide the Services at such place or
places as the Board of Directors may reasonably require.
5. Fee
(1) The Company shall pay to GIM a fee to be agreed from time to time ("the
Fee") but so that the maximum fee payable under this sub-clause
(exclusive of Value Added Tax) when aggregated with the Management Fee
(exclusive of Value Added Tax) payable under the Administration,
Management and Custody Agreement (or any administration, management and
custody agreement with whomsoever made superseding that agreement)
shall not in any financial period of the Company exceed one per cent.
of Shareholders' Funds of the Company and its Subsidiary Companies on
the last day of the preceding financial period of the Company.
(2) For the avoidance of doubt, the Company shall not be obliged to provide
the Executive with, or reimburse GIM for the cost of providing the
Executive with medical insurance, life assurance, pension benefits,
accident insurance, permanent health assurance or other benefits except
as expressly provided for in this Agreement.
(3) The Fee shall accrue from day to day and be payable quarterly in
advance on 31st January, 30th April, 31st July and 31st October in each
year. The first payment shall
Page 44 of 198 Pages
<PAGE>
be a pro rata part of the quarterly fee for the period from the date of
this Agreement to the next quarter date. GIM shall reimburse the
Company for a pro rata part of any quarterly fee paid in advance in
respect of any period after termination of this Agreement.
(4) The Fee shall be exclusive of any fees receivable by the Executive as a
director of any Group Company.
(5) In addition to the Fee the Company shall pay to GIM a performance fee
in the amount and payable in the manner set out in the Schedule to this
Agreement ("the Performance Fee").
(6) The Company shall pay to the Executive(pound)1 per annum (if demanded)
as consideration for his obligations under this Agreement.
6. Expenses
(1) In addition to the Fee and Performance Fee the Company shall reimburse
GIM (on production of such vouchers or other evidence as the Company
may require) the amount of all travelling and other expenses properly
and reasonably incurred by the Executive in the provision of the
Services.
(2) The Company shall provide the Executive with reasonably suitable office
accommodation and secretarial assistance at the offices of the Company
or such Group Company as may be appropriate so as to enable the
Executive properly to provide the Services but nothing in this
Agreement shall be construed or have effect as constituting any
relationship of landlord or tenant between the Company and GIM or the
Executive and any use of such office accommodation by GIM or the
Executive shall be as bare licensee of the Company.
7. Holidays
(a) The Company acknowledges that the Executive is entitled to a
maximum of 30 Working Days' holiday in every calendar year
under his service agreement with GIM.
(b) GIM and the Executive agree that the Executive will take his
holidays at such times as are convenient to the Company.
8. Confidential Information
(a) GIM and the Executive acknowledge that to enable them to
provide the Services and to discharge their responsibilities
under this Agreement the Company, and the Group, will provide
them with information relating to the Group of a highly
confidential nature (any and all information relating to the
Company, the Group, and each Group Company, their respective
businesses, activities or customers, including but without
limitation all and any analyses, compilations,
Page 45 of 198 Pages
<PAGE>
forecasts, studies or other documents, is referred to in this
Agreement as "Information").
(b) GIM and the Executive agree that they will adopt all such
procedures as the Company may require and that they will keep
confidential all Information and shall not, without the prior
written consent of the Board of Directors (save as required by
law) disclose the Information in whole or in part other than
to the Board of Directors and to the Company's professional
advisers. GIM and the Executive shall not use the Information
other than in connection with the provision of the Services.
Notwithstanding the foregoing, GIM and the Executive agree not
to disclose the Information (save as required by law) to any
person except to the extent necessary to discharge their
responsibilities under this Agreement.
(c) Any document, including without limitation notes, memoranda,
diaries, correspondence, computer disks or copies thereof
created by GIM or the Executive in providing the Services
shall be and remain the property of the Company or such Group
Company as appropriate and the Company or such Group Company
shall be the absolute beneficial owner of the copyright in any
such document.
(d) GIM and the Executive shall at any time during the continuance
of this Agreement if so required by the Company or any Group
Company and in the event of the termination of this Agreement
(whether lawfully or otherwise) surrender to the Company or
such Group Company all original and copy documents in their
possession custody or control belonging to the Company or
Group Company or relating to the business of the Company or
any Group Company together with any other property belonging
to the Company or any Group Company.
(e) The obligations of GIM and the Executive under this Agreement
apply to all and any Information whether the Information was
in or comes into their possession prior to or following this
Agreement and such obligations shall be continuing obligations
throughout the continuance of this Agreement and at all times
following its termination.
(f) GIM and the Executive agree to observe the laws and
regulations which may apply in the jurisdictions where the
Company and the Group Companies are located.
(g) GIM and the Executive understand and agree that any breach of
their obligations under this Clause 8 will cause the Company
irreparable injury and that monetary damages will not be an
adequate remedy for any such breach. In the event of any
breach or threatened breach by GIM or the Executive, the
Company shall be entitled to injunctive relief in any court of
competent jurisdiction restraining GIM or the Executive from
such breach.
9. Gratuities and Codes of Conduct
Page 46 of 198 Pages
<PAGE>
(a) GIM and the Executive shall not directly or indirectly accept
any commission, rebate or other financial benefit from any
person who has or is likely to have a business relationship
with any Group Company without the consent of the Board of
Directors.
(b) GIM and the Executive shall comply with all codes of conduct
from time to time adopted by the Company, and with all
applicable rules and regulations of the London Stock Exchange
and any other relevant regulatory authority including (without
limitation) the Model Code for Securities Transactions by
Directors of Listed Companies.
10. Termination of Appointment
(a) This Agreement shall be for a period of 12 months from the
Commencement Date and shall continue for successive periods of
12 months provided that GIM or the Company may terminate this
Agreement at any time by giving to the other of them at least
12 months' notice in writing expiring at any time (whether or
not on the anniversary of this Agreement).
(b) If:
i. the Executive ceases for any reason to be an employee
of GIM;
ii. the Executive becomes of unsound mind or is, or may
be, suffering from mental disorder and either:
(i) he is admitted to hospital for treatment under the
Mental Health Act 1983; or
(ii) an order is made by any competent court for his
detention or for the appointment of a receiver,
curator bonis or other person to exercise powers with
respect to his property or affairs;
iii. the Executive is unable properly to
perform his duties under his service
agreement with GIM by reason of
ill-health, accident or otherwise for
a period or periods aggregating at
least 180 Working Days in any period
of 12 consecutive months;
iv. GIM or the Executive fails or neglects
efficiently and diligently to
discharge its duties, or GIM or the
Executive is guilty of any breach of
their obligations under this Agreement
or any other agreement with a Group
Company (including any consent granted
under any of them);
Page 47 of 198 Pages
<PAGE>
v. GIM or the Executive is guilty of
misconduct or suffers any matter which
(by reason of its effect on the
Executive's reputation or otherwise)
affects or is likely to affect
prejudicially the interests of the
Company or the Group, or the Executive
is convicted of an arrestable offence
(other than a road traffic offence for
which a non-custodial penalty is
imposed);
vi. the Executive becomes bankrupt or
makes any arrangement or composition
with his creditors (other than as a
result of losses relating to his
underwriting affairs in the Lloyds
insurance market);
vii. GIM becomes unable to pay its debts as
they fall due or makes any arrangement
or composition with its creditors or
an order is made or any effective
resolution is passed for winding-up
GIM; or
viii. the Executive is disqualified from
being a director of any company by
reason of an order made by any
competent court
the Company may by written notice to GIM terminate this Agreement with
immediate effect but:
(i) any such termination shall be without prejudice to any other
rights of the Company; and
(ii) a notice under sub-clause (c) may be given by the Company to
GIM only within 90 days after the end of any period or periods
of disability referred to in that sub-clause.
(c) On the termination of this Agreement in any way (whether
lawfully or otherwise) the Executive shall immediately resign
all offices held by him in any Group Company (without
prejudice to the rights of any party arising out of this
Agreement or the termination of this Agreement) and if he
fails to do so the Company is irrevocably authorised to
appoint some person in his name and on his behalf to do all
such things and execute all such documents as may be
necessary, or incidental to, to give effect to his
resignation.
11. Executive not an employee of the Company nor carrying on separate
investment business
(a) Nothing contained in this Agreement shall be construed or have
effect as constituting any relationship of employer and
employee between the Company
Page 48 of 198 Pages
<PAGE>
and the Executive save that, for the purposes of Clause 8
only, the Executive agrees to be subject to the same status as
the employees of the Company.
(b) The Executive shall at all times be an employee of GIM.
(c) GIM shall be responsible for the payment of any wages,
Employers' National Insurance and any other contributions
required by law to be paid by it as employer in relation to
the Executive and shall make all appropriate deductions from
the Executive's wages in respect of Income Tax (PAYE) and
Employers' National Insurance contributions and shall
indemnify the Company in respect thereof.
(d) Nothing contained in this Agreement shall be construed or have
effect as either the Executive or GIM carrying on investment
business within the meaning of the Financial Services Act
1986, in particular in relation to the functions described in
Clause 3(3) of this Agreement. The intent of the parties is
that GIM will provide the services of the Executive but
neither GIM nor the Executive shall be treated as providing
independent investment management or advisory services to the
Company.
12. Guarantee
(a) The Executive hereby unconditionally guarantees and undertakes
to the Company that GIM shall duly and punctually observe and
perform all the undertakings, covenants and obligations
whatsoever of GIM under this Agreement to the intent that if
GIM shall fail for whatever reason so to observe and perform
any of such undertakings, covenants and obligations the
Executive shall be liable to perform the same in all respects
as if the Executive were principally bound thereby.
(b) No time or other indulgence given by the Company to GIM nor
any neglect failure or forbearance on the part of the Company
to enforce the performance or observance of any of GIM's
undertakings, covenants and obligations under this Agreement
shall in any way release or affect the liability of the
Executive hereunder.
13. Indemnity
The Company shall, insofar as it is permitted by any applicable law,
indemnify GIM and the Executive against any costs, claims or
liabilities incurred as a result of the Executive being a director or
an officer of any Group Company or his being held out to any person as
a director or officer of any such company.
14. General
(a) Neither GIM nor the Executive shall assign or otherwise
transfer any of its or his rights nor sub-contract or
otherwise transfer any of its or his obligations under this
Agreement. If the Company transfers the whole or a substantial
part
Page 49 of 198 Pages
<PAGE>
of its undertaking and property to another company as part of
a reconstruction or amalgamation, the Company may by written
notice to GIM transfer all its rights and obligations under
this Agreement to that other company.
(b) This Agreement shall be governed by and construed in
accordance with English law. The parties irrevocably submit to
the jurisdiction of the English courts.
15. Notices
Any notice to be served under this Agreement may, in the case of the
Company be delivered or sent by first class post to the Company at its
registered office for the time being and, and in the case of GIM or the
Executive, may be delivered to the Executive or sent by first class
post to the Executive's usual or last known place of residence. Notices
served by first class post shall be deemed duly served twenty-four
hours after posting and proof of posting shall be proof of delivery.
IN WITNESS of which each of the parties has executed this Agreement on the date
first mentioned on page 1.
Page 50 of 198 Pages
<PAGE>
SCHEDULE
The Performance Fee
The Performance Fee referred to in Clause 5(5) of the Agreement shall be
calculated and payable as follows:
1. As further consideration for the performance of the Services, GIM shall
be entitled to receive on 1st July in each year a Performance Fee which
shall be calculated as the amount equivalent to a percentum of Funds
(as calculated below) of the Company as at 31st March each year (an in
respect of any period, to which this Agreement applies, of less or more
than twelve months the Performance Fee shall be decreased or (as the
case may be) increased in proportion to the amount by which the period
in question is less than 365 days or exceeds 365 days, as the case may
be).
2. In the event of any change in the financial year end of the Company
from 31st January in any year, the period covered by this Schedule
shall be altered so that any current period the subject of this
Schedule shall expire on the date falling two calendar months after the
date of the new financial year end of the Company and so that:
(a) any such new period covered by this Schedule shall always
commence on the date falling two calendar months and one day
after the expiry of the financial period of the Company;
(b) payment pursuant to paragraph 1 above shall be made on the
date falling six calendar months and one day after the new
financial year end date of the Company;
(c) all references to 31st March in this Schedule shall then be
deemed to apply to the date falling two months after the new
financial year end of the Company; and
(d) in the event of any further change in the financial year end
of the Company the provisions of this sentence shall apply
"mutatis mutandis".
3. In addition, if the appointment of GIM under this Agreement terminates
otherwise than on 31st March (or such date on which the relevant twelve
month period ends) GIM shall be entitled to a proportionate part of the
fee which would have been payable to it if the appointment had been
effective during the whole of the twelve month period in question.
4. Such percentum will be calculated from the fraction arising in
accordance with the following formula:
(A - 1) x 0.1
Page 51 of 198 Pages
<PAGE>
(B )
Where
A - Funds at 31st March in any calendar year ("Relevant Year Date")
-------------------------------------------------------------------
Funds at 31st March in the immediately preceding calendar year
("Preceding Year Date")
the Standard & Poors' rate of exchange of
Composite Index at US$ per (pound)1 at the
B - the Relevant Year End Preceding Year Date
------------------------- ----------------------
x
the Standard & Poors' rate of exchange of
Composite Index at US$ per(pound)1 at the
the Preceding Year Date Relevant Year Date
Provided always that the percentum shall not be less than nil and not
greater than 0.5 per cent.
5. In the event of the issue of new shares, debentures or other loan
capital by the Company for value or in the event of any shares,
debentures or other loan capital of the Company being repaid during the
relevant period, item A shall be adjusted as the Board of Directors may
determine and the Company's auditors shall confirm as fair and
reasonable.
6. In the event of any dispute between GIM and the Board of Directors as
to the value to be attributed to the Investments or any of them
pursuant to these provisions the value shall be determined by the
auditors of the Company acting as experts and not as arbitrators and
their valuation shall be final and binding upon the parties and the
provisions of paragraph 7 below shall apply to the calculation of the
Performance Fee.
7. For the purposes of this Schedule the expression "Funds" shall mean the
amount of the nominal capital of the Company for the time being issued
and paid up or credited as paid up and the amounts standing to the
credit of the consolidated capital and revenue reserves (including
without limitation share premium account, capital redemption reserve
fund and profit and loss account) of the Company and its subsidiaries
at the dat on which the calculation is required to be made based on the
last audited balance sheet of the Company but after making such
adjustments as may be necessary to reflect:
(a) realised profits or losses arising in respect of the period
from the date of the last audited balance sheet to the date of
the calculation;
Page 52 of 198 Pages
<PAGE>
(b) the Board of Directors' valuation of all unquoted investments
on such date of calculation in accordance with a statement of
value prepared for and approved by the Board of Directors in
accordance with procedures and on a basis reviewed by the
Company's auditors;
(c) the payment of any dividend or the making of any other
distribution to shareholders of the Company.
8. Subject to the provisions of this Schedule the Performance Fee shall be
paid on 1st July in respect of the twelve month period commencing on
1st April in the preceding calendar year and ending on 31st March in
the current calendar year.
Page 53 of 198 Pages
<PAGE>
SIGNED by H. Gittes ) /s/ H. Gittes
on behalf of CONSOLIDATED )
VENTURE TRUST PLC )
in the presence of: )
SIGNED by C.H.B. Mills ) /s/ Christopher Mills
on behalf of GROWTH INVESTMENT )
MANAGEMENT LIMITED )
in the presence of: )
SIGNED by CHRISTOPHER HARWOOD ) /s/ Christopher Mills
BERNARD MILLS )
in the presence of: )
Page 54 of 198 Pages
EXHIBIT (b)
ADMINISTRATION, MANAGEMENT
AND CUSTODY AGREEMENT
BETWEEN
NASCIT AND J O HAMBRO & PARTNERS
Page 55 of 198 Pages
<PAGE>
DATED 7th January 1993
CONSOLIDATED VENTURE TRUST PLC
and
J O HAMBRO & PARTNERS LIMITED
-------------------------------------------------------------
ADMINISTRATION, MANAGEMENT AND CUSTODY AGREEMENT
--------------------------------------------------------------
Allen & Overy
London
Page 56 of 198 Pages
<PAGE>
THIS AGREEMENT is made on 7th January 1993 BETWEEN:
(1) CONSOLIDATED VENTURE TRUST PLC of 11 Devonshire Square, London EC2M 4YR
(the "Company"); and -------
(2) J O HAMBRO & PARTNERS LIMITED of 30 Queen Anne's Gate, London SW1H 9AL
(the "Manager"). -------
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
(1) In this Agreement:
"Board"
means the Board of Directors of the Company, or a committee thereof or
(where the context so admits) a Director of the Company, duly
authorised;
"IMRO"
means the Investment Management Regulatory Organisation Limited or its
successors from time to time;
"IMRO Rules"
means the rules of IMRO from time to time applicable;
"Investments"
includes any asset, right or interest falling within any paragraph in
Part I of Schedule I to the Financial Services Act 1986 and any other
asset, right or interest in respect of property of any kind and,
without prejudice to the foregoing, wherever situate and whether or not
producing income;
"Portfolio"
means the Investments from time to time owned by the Company;
"Secondment Services Agreement"
means an Agreement made on or about the same date as this agreement
between the Company, Growth Investment Management Limited ("GIM") and
Christopher Harwood Bernard Mills;
"Stock Exchange"
Page 57 of 198 Pages
<PAGE>
means The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited;
"subsidiary"
shall have the meaning ascribed thereto by Section 736 of the Companies
Act 1985.
(2) References to persons include bodies corporate and unincorporated
associations and references to companies include any bodies corporate.
(3) Any reference to a statutory provision includes any statutory
modification or re-enactment of it for the time being in force.
(4) Subclauses (1) to (3) above apply unless the contrary intention
appears.
(5) The headings in this Agreement do not affect its construction.
(6) References to amounts payable by the Company shall be exclusive of
value added tax thereon so that value added tax shall be payable in
addition if and to the extent chargeable.
2. Appointment
The Company hereby appoints the Manager to be the investment manager
and administrator of the Company to provide the services and facilities
mentioned below with effect from the date of execution of this
Agreement, such appointment to continue (unless previously terminated
under Clause 11 below) until terminated by either party upon the expiry
of not less than 12 months' written notice given to the other.
3. Investment Management
(1) The Manager shall undertake with regard to such Investments as may from
time to time be notified to and agreed with the Manager (the "Relevant
Investments"), the duties normally performed by investment managers,
subject to the policy directions and overall guidelines from time to
time notified to the Manager by the Board, and in particular but
without in any way prejudicing the generality of the foregoing shall on
behalf of the Company:
(a) keep under constant review the Relevant Investments from time
to time held by the Company;
(b) be entitled (at its absolute discretion and without obtaining
the prior written permission of the Company) to withdraw
deposits, to effect purchases and sales and other transactions
in respect of Relevant Investments and subscriptions to issues
of Relevant Investments, to enter into underwriting
commitments in relation to Relevant Investments on behalf of
the Company and otherwise to invest, realise and re-invest the
Portfolio in relation to Relevant Investments and
Page 58 of 198 Pages
<PAGE>
exercise all rights attaching to Relevant Investments
comprised therein and in each such case to charge the amounts
payable to the Portfolio;
(c) search out and evaluate investment opportunities in Relevant
Investments for the Company;
(d) analyse the progress of companies in which the Company has
made Relevant Investments;
(e) submit to the Board such reports and information regarding
Relevant Investments as the Board shall reasonably require;
and
(f) recommend to the Board any future developments or changes to
the investment policy of the Company which the Manager may
consider to be advisable.
(2) The Board shall procure that Christopher Mills consults with the
Manager prior to making investment decisions on behalf of the Company
relating to unlisted investments. If the Manager objects to any such
investment decision by Christopher Mills it may notify the Board and
the Board shall use reasonable endeavours to convene a Board Meeting to
consider the matter prior to the proposed investment decision being
implemented.
4. Administration and other facilities
The Manager shall provide the Company with the following services and
facilities:
(a) office facilities at 30 Queen Anne's Gate, London SW1H 9AL or
such other office as may be agreed by the Company with the
Manager and such office shall be used as the registered and
principal office of the Company and there shall be available
there a suitable room (upon the giving of not less than five
days' prior notice or such shorter notice as may be agreed
from time to time) for the holding of meetings of the Board
but nothing in this Agreement shall be construed, or have
effect as constituting the relationship of landlord and tenant
between the Manager and the Company and the Company shall be a
bare licensee of the Manager;
(b) all financial, accountancy, secretarial, clerical and other
administrative services of any kind necessary for the conduct
of the affairs of the Company;
(c) keeping on behalf of the Company such books, records and
statements to give a complete record of all transactions
carried out by the Company in relation to the investment,
realisation and re-investment of the Portfolio and such other
books, records and statements as may be required to give a
complete record of all other transactions carried out by the
Company and as will enable the Company to publish yearly and
half-yearly the report and accounts of the Company as required
by the regulations of The Stock Exchange;
Page 59 of 198 Pages
<PAGE>
(d) acting as Secretary to the Company, attending all meetings of
the Board and performing all the duties reasonably expected of
a Company Secretary including liaison with The Stock Exchange,
preparation and delivery of returns of The Registrar of
Companies and the maintenance of all statutory books other
than the register of members;
(e) all necessary equipment and personnel with a proper and
adequate standard of proficiency and experience to enable the
Manager to carry out its functions under this Agreement; and
(f) the Manager shall permit such of its employees (if any) as the
Company may reasonably request to be Directors of the Company.
5. Ancillary Powers of Manager
The Manager may on behalf of the Company in respect of Relevant
Investments:
(a) issue orders and instructions to the Company's bankers and
custodians with respect to the disposition of securities and
moneys of the Company provided always that any such
disposition shall at all times be subject to and effected in
accordance with the arrangements for the time being in force
between the Company and its bankers and custodians;
(b) exercise any voting rights attached to the securities included
in the Investments in pursuance of the policy agreed and
established by the Board from time to time; and
(c) issue instructions to and consult the auditors and legal
advisers of the Company regarding any matter or thing relating
to Investments including (where the Board thinks fit)
institution of legal proceedings.
6. Further obligations of the Manager
(1) The Manager shall, and shall procure that its representatives,
employees and delegates shall, obey and comply with all lawful orders
and directions in relation to the Manager's obligations under this
Agreement given to it or them from time to time by the Board and shall
observe and comply with the Memorandum and Articles of Association of
the Company as from time to time amended and with all resolutions of
the Board or the Company of which they are informed.
(2) In particular, all activities engaged in by the Manager or any
representative, employee or delegate of the Manager on behalf of the
Company shall at all times be subject to the overall control of and
review by the Board and without limiting the generality of the
foregoing the Board shall set out the investment policy of the Company
specifying the manner in which it wishes the Manager to give effect to
such policies.
(3) The Board shall instruct the Manager as to the exercise of the voting
rights attached to the securities in the Portfolio and may:
Page 60 of 198 Pages
<PAGE>
(a) prohibit the Manager from investing for the account of the
Company in any particular security or class of securities;
(b) require the Manager to sell any security or class of
securities or (subject to the availability of funds) to
purchase any security or class of securities; and
(c) withdraw any part of the assets of the Company from the
management of the Manager (but without thereby reducing the
fee payable to the Manager under this Agreement) for any
reason whatsoever.
7. Custody
(1) Unless it receives contrary instructions from the Company, the
Manager shall make arrangements for the safekeeping of all
cash, securities or other assets in the Portfolio for the
account of the Company in accordance with this Clause 7
provided that the obligations of the Manager under this Clause
7 shall not apply in relation to any cash or other assets of
the Company until the cash or assets concerned have been made
available to the Manager following execution of this
Agreement. Insofar as the Manager holds assets comprised in
the Portfolio (or documents of title relating to such assets),
it shall do so separately from its own assets and on trust for
the Company.
(2) The Manager shall arrange for (i) any uninvested cash to be held in the
Company's name in one or more accounts with Bank of Scotland or other
first class banks approved by the Company and (ii) all securities to be
held in custody accounts in the Company's name at Bank of Scotland or
other reputable custodians approved by the Company.
(3) The Manager shall make arrangements for:
(a) the collection of all income and principal with respect to the
Portfolio and credit cash receipts to the bank accounts
referred to above;
(b) the exchange of securities where the exchange is purely
ministerial (including the exchange of temporary securities
for those in definitive form and the exchange of warrants for,
or other documents of entitlement to securities for, the
securities themselves);
(c) the surrender of securities at maturity or when called for
redemption against payment therefor.
(4) The Manager shall notify any bank or custodian holding property
comprised in the Portfolio that it is not the Manager's property.
(5) The Manager shall have no right of lien or set-off or any right of
retention with respect to any Investments held in the Portfolio.
Page 61 of 198 Pages
<PAGE>
(6) All proxies or similar requests for consent and all notices (other than
of a routine or immaterial nature) received by the manager relating to
securities held in the Portfolio are to be forwarded to the Company or
are to be dealt with in accordance with instructions given by the
Company from time to time.
8. Management charge and expenses
(1) The Company shall pay to the Manager in respect of each financial
period of the Company a fee for its services the amount of which shall
be equal to the difference between (a) 1% of Shareholders Funds (as
defined in the Secondment Services Agreement in its original form) of
the Company and its subsidiaries on the last day of the preceding
financial period of the Company and (b) the amount of the Fee payable
to GIM pursuant to Clause 5(1) of the Secondment Services Agreement in
respect of that financial period provided that the amount of the fee
payable to the Manager pursuant to this sub-clause in respect of any
financial period of the Company shall not be less than (pound)75,000.
(2) In addition, the Company shall pay to the Manager a transaction fee
of(pound)200 per transaction effected for the Portfolio by the Manager,
as evidenced by a contract note.
(3) The Company shall bear the expenses of any kind incurred by or on
behalf of the Manager in the carrying out of its duties and the
provision of services and facilities hereunder, save for telex,
telephone and other routine communication charges and the costs of
providing normal office accommodation and secretarial and clerical
staff for the normal performance of those duties.
(4) The fee payable pursuant to sub-clause (1) of this Clause 8 shall be
paid to the Manager by the Company (unless otherwise agreed) in
quarterly instalments in arrears on 30th April, 31st July, 31st October
and 31st January in each year (in this sub-clause referred to as
"Payment Dates") but if the amount of the fee in respect of any
financial period is not ascertained by 30th April in that financial
period, the Company shall pay to the Manager (pound)18,750 on each of
the Payment Dates and upon the amount of the fee being ascertained the
Company shall pay any further amount due to the Manager in equal
instalments on the Payment Dates provided that any instalment in
respect of a Payment Date that has already passed shall be immediately
payable to the Manager (and a pro rata fee shall be payable for any
part of a quarter for which this Agreement is in force).
(5) The Manager shall also be entitled to additional fees, calculated on a
time basis, for services provided in connection with any transactions
involving the Company and/or any of its subsidiaries outside the
ordinary course of business including in particular any issue of
shares, debentures or other securities or any reorganisation,
redemption, consolidation, sub-division or other alteration of capital
or any takeover, acquisition or disposal of or by the Company and/or
any of its subsidiaries.
(6) An amount equal to any amount payable to the Manager pursuant to this
Clause shall be paid by the Company to the Manager promptly after
delivery to the Company by the Manager of an invoice giving reasonable
details in respect thereof. Notwithstanding the foregoing, the Manager
shall be entitled, without delivery of an invoice as
Page 62 of 198 Pages
<PAGE>
aforesaid, to charge any such amount to the Portfolio subject to
notifying the Company in writing of the amount thereof promptly
thereafter.
9. Subsidiaries
If the Company has at any time one or more subsidiaries then, unless
otherwise directed by the Board, the Manager shall in addition provide
the same services to such subsidiaries as it provides hereunder to the
Company.
10. Freedom to act
The services of the Manager to the Company under this Agreement shall
not be exclusive and the Manager shall be free to render similar
services to others and nothing in this Agreement shall preclude the
Manager from having dealings with or on behalf of the Company either on
its own account or on account of its clients or others or make it
accountable to the Company in respect of any product or commission from
any such dealings.
11. Termination
(1) If:
(a) either party shall commit any substantial or continuing
material breach of this Agreement and (where such breach is
capable of remedy) fail to remedy such a breach within thirty
days of being given written notice of it by the other party;
or
(b) either party shall have a receiver or administrator appointed
over the whole or any party of their assets or a resolution is
passed or an order made for the winding-up of such party other
than as mentioned in sub-clause (2) below;
the other party shall be entitled to terminate the appointment under
this Agreement forthwith by giving written notice of termination to
such party.
(2) On termination of the appointment of the Manager, the Manager shall be
entitled to receive all fees and other money accrued due up to the date
of such termination but shall not be entitled to compensation in
respect of termination (except where such appointment is terminated by
the Manager in accordance with sub-clause (1)(a) of this Clause or by
the Company in breach of Clause 2) and the Manager shall deliver to the
Company or as it shall direct, all books of account, records,
registers, correspondence, documents and assets belonging to the
Company or any subsidiary in possession of or under the control of the
Manager and take all necessary steps to vest in the Company any assets
previously held in the name of or to the order of the Manager on behalf
of the Company or any subsidiary.
(3) The Manager shall also be entitled to terminate its appointment on
giving four months' notice to the Company if either the Board fails to
procure that Christopher Mills consults with the Manager in accordance
with Clause 3(2) or if the Manager has
Page 63 of 198 Pages
<PAGE>
objected to an investment proposed by Christopher Mills and has given
notice to the Board under Clause 3(2), but the Board has approved the
proposal.
12. Confidentiality and records
(1) Neither party shall during the continuance of this Agreement or after
its termination disclose to any person, firm or company whatsoever
(except with the authority of the other party or unless ordered to do
so by The Stock Exchange, the Panel on Takeovers and Mergers or by a
regulatory body or court of competent jurisdiction) any information
relating to the business, Portfolio, finances or other matters of a
confidential nature of the other party of which it may in the course of
its duties under this Agreement or otherwise become possessed and each
party shall use all reasonable endeavours to prevent any such
disclosure.
(2) All books, statistical records, accounts, contract notes,
correspondence and other documents relating to the business and affairs
of the Company shall be the exclusive property of the Company and the
Manager shall when reasonably requested produce the same to the Company
or its employees, agents or auditors together with any information
within the knowledge of the Manager in relation thereto.
13. Reports and valuations
(1) The Manager shall provide the Company with regular monthly statements
and valuations in respect of the Portfolio as at dates selected by the
Company provided that the Company shall supply valuations to the
Manager in respect of unlisted investments (not being Relevant
Investments). The valuations provided by the manager shall be in
accordance with procedures and on a basis reviewed by the Company's
auditors and as required by law or the regulations of The Stock
Exchange. The reference currency will be pounds sterling for such
documents.
(2) Statements of the contents of the Portfolio prepared in accordance with
the IMRO Rules will be provided on a quarterly basis in respect of
quarterly periods of account.
14. Notices
Any notice to be given under this Agreement may be served personally or
by post at the registered office of the party to be served and in the
case of service of first class post shall be deemed duly served
twenty-four hours after posting and proof of posting shall be proof of
delivery.
15. Liability and Indemnity
(1) Subject to the terms of this Agreement, the Manager shall be under no
liability to the Company for any loss, costs or damages which may arise
in connection with the conduct of its duties hereunder or the custody
of the Investments or for any depreciation in the value of any
Investments or their safe custody unless due to wilful default or
negligence on its part.
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(2) The Company shall indemnify the Manager and keep it indemnified against
any costs, claims, demands or proceedings made by any person and in any
way arising from its appointment hereunder unless due to wilful default
or negligence on its part. The Manager agrees promptly to inform the
Company in writing of any event which comes to its notice as a result
of which the Company might become liable to indemnify the Manager under
this Clause.
16. Assignment
Neither party hereto shall be entitled to assign or otherwise part with
any interest in this Agreement unless the prior written consent of the
other has been obtained except that, if either party transfers the
whole or a substantial part of its undertaking and property to another
company as part of a reconstruction or amalgamation, that party may by
written notice to the other transfer all its rights and obligations
under this Agreement to that other company.
17. Governing law
This Agreement is governed by and shall be construed in accordance with
the laws of England to the jurisdiction of whose Courts the parties
irrevocably submit.
IN WITNESS of which each of the parties has executed this Agreement on the date
first mentioned on page 1.
SIGNED by H. Gittes )
) /s/ H. Gittes
on behalf of CONSOLIDATED )
VENTURE TRUST PLC in the )
presence of: )
SINGED by R.C.O. Hellyer )
) /s/ R.C.O. Hellyer
on behalf of J O HAMBRO & )
PARTNERS LIMITED )
in the presence of: )
Page 65 of 198 Pages
EXHIBIT (c)
CLIENT AGREEMENT
SEAWAY LIMITED
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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 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 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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<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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<PAGE>
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.
(1) 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.
(2) CAPITAL ACCOUNT
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<PAGE>
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.
(3) 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.
(4) 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 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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<PAGE>
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 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
Page 71 of 198 Pages
<PAGE>
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.
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
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<PAGE>
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 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:
(1) any investment decision taken and acted upon in accordance with the
terms of this Agreement; or
(2) 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
(3) 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
(4) 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 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.
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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 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:
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<PAGE>
(1) 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;
(2) any additional expenses which JOHP necessarily incurs in terminating
this Agreement; and
(3) 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.
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.
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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".
Page 79 of 198 Pages
<PAGE>
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
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to(pound)10,000 0.5% on transactions up to(pound)
10,000 10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
(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
Page 80 of 198 Pages
<PAGE>
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.
Page 81 of 198 Pages
EXHIBIT (d)
CLIENT AGREEMENT
PEAK INVESTMENTS
Page 82 of 198 Pages
<PAGE>
JO HAMBRO & PARTNERS LIMITED
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE DAY OF
19
BETWEEN:
(1) JO 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) Peak Investments (portfolio name)
--------------------------------------------------
(hereafter known as the "Client")
of 3 Chester Street, London SWIX 7BB
------------------------------------------------
------------------------------------------------ (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 1 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.
Page 83 of 198 Pages
<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
stabilized. The attention of the Client is referred to the statement
contained in Schedule II relating to stabilization. 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.
Page 84 of 198 Pages
<PAGE>
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
Page 85 of 198 Pages
<PAGE>
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 realise 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
Page 86 of 198 Pages
<PAGE>
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
Page 87 of 198 Pages
<PAGE>
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 a 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 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 with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognises that JOHP may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHP's
Page 88 of 198 Pages
<PAGE>
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 contained in
this Agreement.
Page 89 of 198 Pages
<PAGE>
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 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.
Page 90 of 198 Pages
<PAGE>
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 realised 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 authorised 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.
Page 91 of 198 Pages
<PAGE>
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.
Page 92 of 198 Pages
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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 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 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.
PART III - Risk Warnings and Risk Disclosure Statement
Page 93 of 198 Pages
<PAGE>
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 favourable or unfavourable 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, unfavourable as well as favourable, 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 authorise 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.
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
Page 94 of 198 Pages
<PAGE>
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 stabilise (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 interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
Page 95 of 198 Pages
<PAGE>
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
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to(pound) 0.5% on transactions up to(pound)
10,000 10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
(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
Page 96 of 198 Pages
<PAGE>
FOR JO HAMBRO & PARTNERS LIMITED
23rd Jan. 1996 /s/ J.D. Hambro
-----------------------------------
FOR THE CLIENT*
25 Jan. 1996 Date
- ------------------------------------------ -----------------------------------
/s/Barbara Thomas
- ------------------------------------------
/s/Allen Thomas
- ------------------------------------------
*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 authorising 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 OF 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.
Page 97 of 198 Pages
EXHIBIT (e)
CLIENT AGREEMENT
LORD STEVENS OF LUDGATE
PENSION FUND
Page 98 of 198 Pages
<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.
Page 99 of 198 Pages
<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.
Page 100 of 198 Pages
<PAGE>
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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<PAGE>
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
Page 102 of 198 Pages
<PAGE>
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
Page 103 of 198 Pages
<PAGE>
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
Page 104 of 198 Pages
<PAGE>
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.
Page 105 of 198 Pages
<PAGE>
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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<PAGE>
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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<PAGE>
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.
Page 108 of 198 Pages
<PAGE>
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 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.
Page 109 of 198 Pages
<PAGE>
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
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.
Page 110 of 198 Pages
<PAGE>
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
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
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to 0.5% on transactions up to
(pound)10,000 (pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
(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
Page 111 of 198 Pages
<PAGE>
FOR J O HAMBRO & PARTNERS LIMITED
23rd Jan. 1996 Date /s/ J.D. Hambro
- ------------------------------------- -----------------------------
FOR THE CLIENT*
9/2/96 Date
- ------------------------------------- -----------------------------
/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.
Page 112 of 198 Pages
EXHIBIT (f)
INVESTMENT MANAGEMENT AGREEMENT
CONSULTA LIMITED
Page 113 of 198 Pages
<PAGE>
[J O Hambro & Partners Letterhead]
Our ref: LAK/19064
Consulta (Channel Islands) Limited
P.O. Box 208
Bermuda House
St. Julian's Avenue
St. Peter Port
Guernsey
Channel Islands
16th February, 1995
Dear Sirs,
Appointment as Investment Adviser
- ---------------------------------
You, the directors of Consulta (Channel Islands) Limited (the "Manager") wish to
appoint us, J O Hambro & Partners Limited, as your investment adviser for Oryx
International Growth Fund Limited (the "Fund") and we are willing to act as an
investment adviser to the Fund and you on the terms set out below.
Terms used and defined in the placing memorandum dated 16th February 1995 (the
"Placing Memorandum") will have the same meanings in this letter.
You will have overall responsibility for the investment of the Fund subject to
the overall investment policy agreed by the directors of the Fund and any
instructions given by them from time to time. Our role will be to provide the
Fund and you with specialist investment advice, research and assistance
principally on the United Kingdom and European markets (though not excluding
limited investments in other parts of the world) and medium and small companies
trading on those markets (in particular, those which are under-valued and have
strong growth potential) and to make investment recommendations and to give
general advice whenever called upon so to do in relation to the development and
regulation of the investment policy of the Fund.
In addition, we will be expected to:
(i) advise the Fund and you concerning the action which it appears
to us that the Fund should take in order to carry into effect
its investment policy and objectives;
(ii) keep under surveillance and review and generally analyze the
performance of the Fund's investments;
(iii) give all such assistance to the Administrator as the
Administrator may reasonably require for the purpose of making
valuations of the Fund's investments in
Page 114 of 198 Pages
<PAGE>
accordance with the Articles of Association of the Fund and
Placing Memorandum as you and the Fund may from time to time
reasonable require; and
(iv) prepare such material on the economy, industry, securities
markets and medium and smaller companies of the United
Kingdom, Europe and, in limited circumstances, other areas of
the world as the directors of the Fund may request whenever
they reasonably require such material.
Our services hereunder are not to be deemed exclusive and we shall be free to
render similar services to others so long as our services hereunder are not
impaired thereby. However, in providing such services we will at all times
comply with the terms of the Placing Memorandum, in particular the sections
headed "Conflicts of Interest" on page 13 and the descriptions of our
appointment and this agreement.
In consideration for the services to be provided by us hereunder, we are to
receive an annual fee from you at the rate of 1.25 per cent. on the first
(pound)15,000,000 and 1 per cent. of any excess, in each case of the Net Asset
Value of the Fund (as defined in the Articles of Association of the Fund). Such
fee shall accrue daily, shall be calculated by reference to the Net Asset Value
of the Fund on the last Business Day of each month and shall be paid monthly in
arrears to such bank account as we notify you for the purpose. We will also be
reimbursed for our reasonable out-of-pocket expenses incurred in attending
meetings of the directors of the Fund where required by the directors and in
traveling in connection with our role as investment adviser and the provision of
services hereunder, but all our other expenses will be borne by us.
Our appointment shall become effective upon the allotment of the Shares and the
delivery of the Warrants and Convertible Stock of the Fund pursuant to the
proposed placing of the Units in the Fund by S.G. Warburg Securities Ltd and
shall be for an initial term of two years. The appointment shall continue and
remain in full force and effect thereafter unless and until terminated by either
of us giving the other not less than twelve months' written notice of
termination or on the insolvency of either of us or in the event of a material
breach of the provisions hereof which breach continues for 30 days after receipt
of notice to remedy it.
However, you will have the right to give four months' notice of termination of
our appointment (a) if Christopher Mills dies or leaves our employment of (b)
if, for whatever reason, either Christopher Mills does not provide investment
advice to the Fund or we do not provide the services outlined in this
appointment letter for a period of more than 21 days without your prior written
consent.
We will, however, have the opportunity to suggest an alternative investment
adviser if Christopher Mills dies or leaves our employment and you will put the
alternative to the directors of the Fund for their consideration within seven
days of the receipt by you of the name we suggest provided that the alternative
suggestion is made within three months of you giving us notice of termination of
our appointment.
Any notice required to be given hereunder may be served by being left at or sent
by recorded delivery to the registered office for the time being of the party on
which it is served and any notice given by post shall be deemed to be have been
served at the expiration of 72 hours after it is posted, and in proving such
service it will be sufficient to prove that the envelope containing the notice
was properly addressed and sent by recorded delivery.
Page 115 of 198 Pages
<PAGE>
We acknowledge that we will not have any authority to enter into a transaction
for the purchase or sale of any investment by the Fund without the prior consent
of the directors of the Fund or a duly authorized committee thereof if the
consideration is in excess of (pound)100,000 or, (in the case of a purchase),
the investment is intended to be held for more than five years. Such consent
shall not, however, be required where the investment concerned involves either
an increase or decrease in the level of an investment in the securities of any
particular issuer already held in the Fund's portfolio.
This letter shall be governed and construed in accordance with English law.
Please confirm our appointment as Investment Adviser on the above terms by
signing and returning the enclosed copy of this letter.
Yours faithfully,
/s/ R.C.O. Hellyer
Director
J O Hambro & Partners Limited
To J O Hambro & Partners Limited
We write to confirm and to accept your appointment as Investment Adviser on the
terms set out in the letter of 16th February 1995 of which this is a copy.
For and on behalf of Consulta (Channel Islands) Limited
By: J.C. Wilcockson
Director /s/ J.C. Wilcockson
Date: 16th February 1995
Page 116 of 198 Pages
EXHIBIT (g)
INVESTMENT MANAGEMENT AGREEMENT
BETWEEN
ORYX INTERNATIONAL GROWTH FUND LIMITED
AND CONSULTA LIMITED
Page 117 of 198 Pages
<PAGE>
MANAGEMENT AGREEMENT
--------------------
THIS AGREEMENT is made the 16th day of February 1995
PARTIES:
(1) ORYX INTERNATIONAL GROWTH FUND LIMITED a Company incorporated
with limited liability under the laws of the Island of
Guernsey whose registered office is at Bermuda House, St.
Julian's Avenue, St. Peter Port, Guernsey (the "Fund"); and
(2) CONSULTA (CHANNEL ISLANDS) LIMITED a Company incorporated with
limited liability under the laws of the Island of Guernsey
whose registered office is at Bermuda House aforesaid (the
"Manager").
WHEREAS:
(A) The Fund was incorporated on 2nd December, 1994 in Guernsey as
a closed-ended investment company with the objective of
achieving long term capital appreciation inter alia through
investments in equity and debt securities of small and medium
companies.
(B) The Fund wishes to appoint the Manager to provide management
services to the Fund and its subsidiaries (if any) on the
terms and conditions hereinafter contained.
NOW IT IS HEREBY AGREED as follows:
3. INTERPRETATION
(a) In this Agreement the following words and expressions
shall, where not inconsistent with the context, have the
following meanings respectively:
"Administrator" means Management International (Guernsey)
Limited whose registered office is at Bermuda House aforesaid
(or such other administrator as the Fund shall from time to
time appoint)
"Administration Agreement" means the Agreement of even date
herewith between the Administrator and the Fund, relating to
the administration of the Fund, including any amendment
thereto and any agreement supplementary to or replacing the
same
"Articles" means the Articles of Association of the Fund as
from time to time in force
"Associated Person" means in relation to a company (i) any
person or company beneficially owning, directly or indirectly,
20 per cent or more of the ordinary share capital of that
company or able to exercise, directly or indirectly, 20 per
cent
Page 118 of 198 Pages
<PAGE>
or more of the total votes in that company, (ii) any
person controlled by a person who meets one or both of the
descriptions given in (i) above, (iii) any company 20 per
cent, or more or whose ordinary share capital is beneficially
owned, directly or indirectly, by that company or (iv) any
director or officer of that company or of any Associated
Person of that company, as defined in items (i), (ii) and
(iii) above
"Auditors" means the auditors for the time being of the Fund
"Authorised Signatory" means any person for the time and from
time to time authorised by the Board to give notices and
instructions to the Manager pursuant to this Agreement and in
respect of whom the Manager shall have received a specimen
signature authenticated by a director of the Fund
"Board" means the Board of Directors of the Fund
"Business Day" means a day on which the Stock Exchange is open
for business
"Convertible Stock" means the Zero Coupon Convertible
Unsecured Loan Stock 2005 of the Fund
"Custodian" means Bank of Bermuda (Guernsey) Limited whose
registered office is at Bermuda House aforesaid (or such other
custodian as the Fund shall from time to time appoint)
"Custodian Agreement" means the agreement of even date
herewith between the Custodian and the Fund, relating to the
custody of the Fund's investments, including any amendment
thereto and any agreement supplementary to or replacing the
same
"Investment" means any investment or other asset of any
description
"Manager Group Member" means any holding company from time to
time of the Manager and any subsidiary of any such holding
company
"Net Asset Value" means the net asset value of the Fund
determined in accordance with the Articles
"Placing" means the placing of Shares, Warrants and
Convertible Stock with investors on the basis of the Placing
Memorandum
"Placing Memorandum" means the placing Memorandum relating to
the Fund to be dated 16th February 1995 and to be issued in
connection with the Placing
"Shareholders" means the holders of the Shares
"Shares" means the Ordinary Shares of the Fund
"Stock Exchange" means the International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited
Page 119 of 198 Pages
<PAGE>
"Stockholders" means the holder of the Convertible Stock
"subsidiary and holding company" means a subsidiary and a
holding company respectively within the meaning of Section 736
of the Companies Act 1985 of England and Wales
"Warrantholders" means the holders of the warrants
"Warrants" means warrants to subscribe for Shares
(b) Unless the context otherwise requires words and
expressions contained in this Agreement shall bear the
same meaning as in the Articles PROVIDED THAT any
alteration or amendment of the Articles shall not be
effective for the purposes of this Agreement unless the
Manager (to the extent that its rights or duties
hereunder are effected by such alteration or amendment)
shall have been notified thereof by the Fund in writing.
(c) References in this Agreement to statutory or regulatory
provisions shall be construed as references to those
provisions as respectively now amended or as
consolidated or re-enacted from time to time.
(d) The headings in this Agreement shall not affect its
interpretation.
4. COMMENCEMENT AND APPOINTMENT
(a) The Fund appoints the Manager to be, and the Manager
agrees to act as, manager of the Fund and its
subsidiaries (if any) with effect from the Effective
Date (as defined in Clause 2.2 below), on the terms and
conditions set out in this Agreement
(b) This Agreement shall be conditional in all respects upon
the closing of the Placing in accordance with the
Placing Memorandum not later than 1st March, 1995 (the
date upon which the said condition is fulfilled being
herein referred to as the "Effective Date").
(c) In the event of the above condition not being fulfilled
this Agreement shall (save as provided in Clause 16)
have no further effect nor liabilities as the parties
hereunder shall cease and determine.
5. DUTIES AS MANAGER
(a) During the continuance of its appointment as manager,
the Manager shall have the duties and obligations
normally assumed by a manager and in particular, but
without prejudice to the generality of the foregoing,
shall:
i. manage the investment and reinvestment of the
assets of the Fund with a view to achieving the
investment objectives of the Fund as from time to
time determined by resolution of the Board and
advised to the Manager in writing;
Page 120 of 198 Pages
<PAGE>
ii. negotiate and supervise borrowings of the Fund
within such limits as the Board may from time to
time specify;
iii. seek out and evaluate investment opportunities
for investment by the Fund including employing
such staff in Guernsey or elsewhere, establishing
such offices, making such company visits and
obtaining such information as, in each case, may
prove necessary or desirable from time to time;
iv. analyse the performance of Investments and advise
the Fund in relation to investment trends, market
movements, political and economic conditions and
all other matters likely or which might
reasonably be considered to affect the investment
policy of the Fund and consult with such
investment advisers as may be appointed by the
Fund from time to time;
v. provide the Board with such information, and make
such recommendations to the Board, concerning the
Investments as it may from time to time request
and not less frequently than once every quarter
provide a written report giving details of all
cash balances held for the Fund, full particulars
of all transactions in respect of Investments
made by the Manager since or not detailed in the
last report and a summary of all other
Investments of the Fund;
vi. at the Board's request provide a representative
to attend meetings of the Board in connection
with any of its duties specified above;
vii. provide to the Administrator all such information
in relation to the Fund as it may reasonably
require to carry out its duties under the
Administration Agreement and use its reasonable
endeavours to procure compliance by the Fund with
its obligations under such agreement;
viii. provide to the Custodian all such information
concerning the Investments as it may from time
reasonably require in order to carry out its
duties under the Custodian Agreement and use its
reasonable endeavours to procure compliance by
the Fund with its obligations under such
agreement; and
ix. perform such other duties as may be reasonably
necessary or incidental to the above or as may be
agreed between the Fund and the Manager.
(b) The Manager shall, unless otherwise agreed by the Board,
account and pay to the Fund all transaction fees,
commissions, refunds of commission and interest received
by the Manager or any Manager Group Member in connection
with its duties under this Agreement or in it, or any of
its delegates, acting for the account of the Fund
PROVIDED THAT the Manager shall have no such obligation
in relation to any fees or
Page 121 of 198 Pages
<PAGE>
commission paid to it in connection with the Placing or
in connection with any subsequent issue of Shares or
other securities issued by the Fund.
(c) All books, statistical records, accounts, contract
notes, correspondence and other documents relating to
the business and affairs of the Fund held by the Manager
shall be the exclusive property of the Fund and the
Manager shall when requested produce the same to the
Fund or its agents together with any information within
the knowledge of the Manager in relation thereto. The
Manager shall not at any time be entitled to a lien on
any such books, records, accounts, notes, correspondence
or documents.
(d) In performing its duties under this Agreement the
Manager shall:
i. use its best judgement efforts and facilities and
shall at all times and in all respects well and
faithfully serve the interests of the Fund;
ii. comply and (insofar as it is practicable to do
so) ensure that the Fund complies with the laws
of the island of Guernsey, the Articles and with
all applicable rules and requirements of the
Stock Exchange, with all statements concerning
the Manager or the Fund or (but subject to clause
6) the investment policy of the Fund contained in
the Placing Memorandum and with any other
applicable laws and regulations in force from
time to time; and
iii. not knowingly do or commit or permit to be done
or committed any act, matter or think which would
or might be reasonably considered likely to
prejudice or to bring into disrepute in any
manner the business or reputation of the Fund or
any member of the Board.
6. POWERS OF THE MANAGER
(a) The Manager shall (subject as provided herein) have and
is hereby granted the authority, power and right for the
account and in the name of the Fund:
i. to subscribe, purchase, sell, convert, redeem,
place on and withdraw from deposit or otherwise
deal in (as the case may be) Investments cash or
other assets of the Fund;
ii. to enter into, make, vary and perform all
contracts, agreements and other undertakings as
may in the reasonable opinion of the Manager be
necessary or advisable or incidental to the
carrying out of the objectives of this Agreement;
iii. to commit the Fund to any obligation to
underwrite any issue or offer for sale of
securities;
iv. to apply for such permits, consents or
authorities, as may be necessary or desirable to
enable any Investment to be made, acquired or
disposed of, from any governmental or other
authority in the name of an on behalf of the
Fund;
Page 122 of 198 Pages
<PAGE>
v. to cause such moneys to be retained as cash on
behalf of the Fund or placed on deposit in each
case in the name of the Fund for such periods in
such currency or currencies with the Custodian or
for the account of the Custodian with such other
bank or other persons and in such country as may,
in the reasonable opinion of the Manager and with
the agreement of the Custodian, be desirable;
vi. to the extent necessary to enable it properly to
exercise its rights and to carry out its duties
under this Agreement to act for and on the Fund's
behalf in the same manner and with the same force
and effect as the Fund might or could do; and
vii. generally to have and to exercise all such powers
as may be necessary or reasonably incidental to
the performance of its duties hereunder.
(b) The Manager shall, subject always to the other
provisions of this Agreement and subject always to the
provisions of the Articles, have authority to borrow
from time to time by way of overdraft on the Fund's
accounts. Save as aforesaid the Manager may not commit
the Fund to supplement the funds managed by the Manager
by borrowing except with the consent of, and within the
limits specified by, the Board.
(c) Subject as provided herein, the authorities herein
contained are continuing ones and shall remain in full
force and effect until revoked by resolution of the
Board or termination of this Agreement as hereinafter
provided, but such revocation shall not affect any
liability in any way resulting from transactions
initiated prior to such revocation.
7. HOLDING OF THE INVESTMENTS
(a) The Manager shall forthwith on receipt pay to or deposit
with or to the order of the Custodian all monies
received on behalf of the Fund and shall procure that
all Investments shall be registered in the name of the
Fund or its nominee (in each case for the account of the
Fund), or in such other manner as the Custodian may
approve in order to comply with any applicable laws of
Guernsey or elsewhere.
(b) The Manager shall arrange such safekeeping and banking
facilities with the Custodian on behalf of the Fund as
may be approved by the Fund.
8. RESTRICTIONS ON THE MANAGER
(a) All activities engaged in by the Manager under this
Agreement shall at all times be subject to the control
of and review by the Board, and the Manager shall
observe and comply with all resolutions of the Board of
which it has notice and other lawful orders and
directions given to it from time to time by the Board.
Without prejudice to the generality of the foregoing,
the Manager shall not enter into any transaction for the
purchase
Page 123 of 198 Pages
<PAGE>
or sale of an Investment without the prior consent of
the Board or a duly authorised committee thereof where
the consideration is in excess of (pound)100,000 or, (in
the case of a purchase) the Investment is intended to be
held for more than 5 years. Such consent shall not,
however, be required where the investment concerned
involves either an increase or decrease in the level of
an investment in the securities of any particular
issuer, already held in the Fund's portfolio.
(b) Without prejudice to the generality of Clause 6.1, the
Board may from time to time:
i. prohibit the Manager from making particular
Investments or classes of Investment or from
making deposits with any particular person, firm
or company, or any class of the same or in any
particular geographical area;
ii. require the Manager, to the extent practicable,
to sell any Investment or class of Investments or
(subject to the availability of funds) to
purchase any Investment or class of Investments
or to make deposits with any particular person,
firm or company;
iii. define the investment policy of the Fund and
specify the manner in which the Manager shall
give effect to such policy; and
iv. require the Manager to submit for approval by the
Board the investment policy which the Manager is
implementing or is recommending for
implementation by the Fund;
and the Manager shall and shall procure that any person, firm or
company to whom it delegates an of its functions under this Agreement
shall give effect to all such decisions.
(c) Unless expressly provided or authorised whether under
this Agreement or otherwise, the Manager shall have no
authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
9. FEE
(a) The Fund shall pay to the Manager an annual fee in
respect of its duties hereunder equal to the sum of
(pound)20,000 plus 1.25 percent on the first
(pound)15,000,000 and 1.00 percent on the excess of the
Net Asset Value of the Company during the continuance of
this Agreement which shall be charged to capital and/or
revenue in such proportions as the Board shall from time
to time consider to be appropriate after consultation
with the Manager and the Auditors. Such fee shall accrue
daily, be calculated on the last business day of each
calendar month based on the Net Asset Value at that date
and be payable in arrears within 14 days after the end
of each calendar month.
(b) The fee payable in respect of the period from the
Effective Date to the end of the current calendar month
(the "First Month") shall be calculated by dividing the
figure specified in Clause 7.1 by the total number of
days in
Page 124 of 198 Pages
<PAGE>
the First Month and multiplying it by the number of days
which elapse between the Effective Date and the end of
the First Month inclusive.
(c) If this Agreement is terminated otherwise than at the
end of any calendar month for the purpose of calculating
the fee payable in respect of the period from the
beginning of the then current calendar month (the
"Partial Month") to the date of termination the figure
specified in Clause 7.1 shall be divided by the total
number of days in the Partial Month and shall be
multiplied by the number of days which elapse between
the beginning of the Partial Month and the date of
termination.
10. EXPENSES
(a) Unless otherwise agreed between the Fund and the
Manager, the Fund shall pay or procure payment of the
following expenses:
i. all reasonable audit and taxation fees of the
Fund and legal expenses properly incurred by the
Fund or the Manager in connection with the
corporate existence of the Fund or arising out of
the relationship of the Fund with its
Shareholders, Warrantholders and Stockholders
(including, without limitation, the registration
of transfers of Shares, Warrants and Convertible
Stock and circulars and notices to Shareholders,
Warrantholders and Stockholders) and third
parties and all other reasonable professional and
other charges in respect of services rendered to
the Fund properly in connection with the matters
aforesaid;
ii. all reasonable legal and other professional fees
and other expenses properly incurred in
connection with the corporate and financial
structure of the Fund and the admission of the
Shares, Warrants, Convertible Stock or any other
share or loan capital of the Fund to listing on
the Stock Exchange or on any other stock
exchange;
iii. all reasonable expenses properly incurred in and
incidental to producing, printing and posting or
otherwise despatching the annual accounts and
interim statement of the Fund together with any
report or documents to be annexed thereto, the
cost of publication of the Net Asset Value of and
any other communications by the Fund to its
Shareholders and Warrantholders;
iv. all reasonable expenses of every nature of or
incidental to deposits or loans made by or on
behalf of the Fund;
v. any stamp and other duties, taxes, Governmental
charges, brokerage, insurance, transfer fees,
registration fees and other charges payable in
respect of the acquisition or realisation of any
Investment;
vi. interest on and charges and expenses of
arranging, and arising out of, all proper
borrowings made by or on behalf of the Fund;
Page 125 of 198 Pages
<PAGE>
vii. all taxes and corporate fees payable by the Fund
to any governmental or other authority or agency
in any jurisdiction;
viii. the fees and expenses of the Administrator and
Custodian in accordance with the Administration
Agreement and the Custodian Agreement;
ix. the reasonable fees and expenses of any
investment or other consultants or advisers whom
the Board may from time to time determine should
be employed by the Fund;
x. any reasonable fees or charges made by lawyers,
accountants or other professional advisers (but
not, for the avoidance of doubt any advisers
appointed pursuant to Clause 10) employed by or
on behalf of the Manager in connection with the
investigation of potential investments for the
Fund or the implementation of such Investments;
xi. any promotional expenses properly incurred by the
Fund;
xii. the fees and expenses of Directors of the Fund;
and
xiii. any other fees or charges expressly approved by
the Board.
(b) Save as expressly provided by Clause 8.1 or elsewhere in
this Agreement, the Manager will perform its duties
hereunder at its own expense and shall be responsible
for the fees and expenses (to the extent not otherwise
payable by the Fund under Clause 8.1) of any persons
appointed pursuant to Clause 10. In particular, but
without limiting the generality of the foregoing, the
Manager shall provide at its own expense:
i. such staff as may be necessary for the due
performance of its duties hereunder;
ii. such office and other accommodation as may be
necessary for the due performance of its duties
hereunder; and
iii. all postage, telephone, travel, entertainment and
other expenses incurred by the Manager in the
performance of its duties hereunder, save that
the Fund shall reimburse the Manager for any
travel expenses incurred at the express request
of the Fund and PROVIDED THAT where the Board
require more than one representative of the
Manager to attend any board or other meeting of
the Fund, the reasonable travel and other
out-of-pocket expenses of that additional
representative shall be borne by the Fund.
11. NON-EXCLUSIVITY
Page 126 of 198 Pages
<PAGE>
The Manager and any Manager Group Member may act as manager or
investment adviser for any company, corporation or body of
persons on such terms as may be arranged with such company,
corporation or body of persons and may retain for its own use
and benefit fees or other moneys payable thereby provided that
the Manager and any Manager Group Member so acting shall
ensure that the performance of its duties will not thereby be
impaired. In the event that information which is privileged or
confidential comes to the knowledge of the Manager, the
Manager shall not be under any duty to use or to attempt to
use such information on the Fund's behalf.
12. POWER TO DELEGATE
The Manager shall have full power to appoint, at its own
expense, one or more advisers approved by the Board as may be
relevant to advise it in connection with the performance of
its duties hereunder and, with the approval of the Board, may
delegate any of its functions hereunder to any such adviser
PROVIDED THAT the Manager shall ensure that each of the such
persons complies with the provisions of this Agreement, so far
as applicable, and such other rules to which the Manager is
subject and the Manager shall remain liable for any act or
omission of any such person as if such act or omission were
its own.
13. INTERESTS AND THE COMPANY
(a) Nothing herein contained shall prevent the Manager or
any Associated Person of the Manager from:
i. becoming the owner of any Shares, Warrants,
Convertible Stock or other loan capital in the
Fund and holding, disposing of or otherwise
dealing with the same with the same rights which
it would have held if the Manager were not a
party to this Agreement;
ii. buying, holding and dealing upon its own account
in Investments which are the same or similar to
Investments held by or for the account of the
Fund PROVIDED THAT neither the Manager nor any
Associated Person of the Manager shall deal with
the Fund as a beneficial owner on the sale or
purchase of investments to or from the Fund
except on a basis approved by the Directors from
time to time, or without the consent of the
Directors otherwise deal with the Fund as
principal;
iii. dealing with the Fund as agent PROVIDED THAT any
such dealings are on terms no less favourable to
the Fund than could reasonably have been obtained
had the dealings been effected with an
independent third party and the Manager or any
Associated Person of the Manager may (in such
circumstances) charge and retain a commission or
fee in respect of any such dealings;
iv. contracting or entering into any financial,
banking or other transaction with the Fund
(subject as provided in paragraphs (c) and (d)
above) or any Shareholder, Warrantholder or
Stockholder of the
Page 127 of 198 Pages
<PAGE>
Fund or any body, any of whose securities are
held by or for the account of the Fund, or from
being interested in any such contract or
transaction and the Manager shall not be called
upon to account in respect of any such contract
or transaction by virtue only of the relationship
between the parties concerned, subject always to
the Manager's duties hereunder.
(b) For the purpose of this Clause 11 the expression "the
Fund" shall include the subsidiaries of the Fund for the
time being (if any).
14. LIABILITY OF THE MANAGER
(a) The Manager shall not be under any liability on account
of anything done or suffered to be done by the Manager
in good faith in accordance with any specific written
request of the Fund or any of its duly authorised
agent(s) or delegate(s). Whenever pursuant to any
provision of this Agreement any notice, instruction or
other communication is to be given by the Fund or any of
its duly authorized agent(s) or delegate(s), the Manager
may accept as sufficient evidence thereof a document
signed by or purporting to be signed by an Authorized
Signatory.
(b) The Manager agrees to use its best efforts, skill and
judgment and all due care in performing its duties and
obligations and exercising its rights and authorities
hereunder and shall indemnify and keep indemnified the
Fund against all liabilities, losses, costs, expenses,
claims, proceedings and demands which the Fund may
suffer or incur as a result of any breach by the Manager
of the terms hereof (including, without limitation, as a
result of the Manager acting outside the scope of the
authority granted to it by the Fund hereunder or in
breach of any limitations thereon from to time imposed
by the Board) or otherwise arising out of the
performance or non-performance of its duties,
obligations, rights and authorities hereunder, PROVIDED
THAT the Manager shall not be liable to the Fund for any
decline in the value of the assets of the Fund or any
part thereof to the extent that such decline results
from the Manager's implementation of any express
direction of the Board or from any investment decision
made by the Manager in good faith unless such decision
was reckless, negligent or otherwise in wilful breach of
any duty owed by the Manager to the Fund.
(c) The Manager shall be entitled to obtain legal advice
from its lawyers for the time being if it reasonably
considers that such advice is necessary or desirable for
the proper performance of its duties under this
Agreement and, if the Fund shall give its express
written approval to the obtaining of any such advice or
opinion, the Fund shall pay or procure payment of the
reasonable expenses thereof. Any reasonable action or
omission taken or suffered by the Manager in good faith
in reliance on or in accordance with such advice or
opinion shall be full protection and justification to it
with respect to the action or omission so taken or
suffered.
(d) The Fund hereby undertakes to hold harmless and
indemnify the Manager or procure the Manager to be held
harmless and indemnified against all
Page 128 of 198 Pages
<PAGE>
actions, proceedings, claims and costs, demands and
expenses incidental thereto which may be brought
against, suffered or incurred by the Manager by reason
of the proper performance of its duties in accordance
with the terms of this Agreement in each case including
all reasonable legal, professional and other expenses
properly incurred in connection therewith (including any
such actions, proceedings and claims as shall arise as a
result of loss, delay, misdelivery or error in
transmission of any cable, telex, telefax, telegraphic
or other communication), except such as shall arise from
its bad faith, wilful breach of duty under this
Agreement or reckless or negligent act or omission on
its part.
(e) Without prejudice to the generality of the preceding
provisions of this Clause, the Manager will not be
responsible for any loss suffered by the Fund as a
result of any default by:
i. the Custodian or the Administrator; or
ii. any bank or other financial institution holding
money pursuant to Clause 5 of this Agreement; or
iii. any counterparty or other person with whom the
Manager arranges or enters any transaction for
the Fund pursuant to this Agreement (but the
Manager shall use all reasonable endeavours at
the expense and written request of the Fund
diligently to pursue remedies against any such
counterparty),
unless such default is the direct result of the Manager's wilful default
or negligence.
(f) The Manager shall not be required to take any legal
action in connection with the performance of its duties
under this Agreement or on half of the Fund unless fully
indemnified to its reasonable satisfaction for losses
costs and liabilities which may be incurred or suffered
by it. The Fund shall be entitled to require the
Manager, in taking any action of whatsoever nature
hereunder, to act in accordance with any reasonable
direction of the Fund (including directions as to
compromise or settlement) in connection with any claim
against the Manager for which the Fund may ultimately be
liable, but if, in the reasonable opinion of the
Manager, acting in accordance with such directions might
make the Manager liable for the payment of money or
liable in any other way, the Manager shall be and be
kept indemnified in any reasonable amount and form
satisfactory to the Manager as a prerequisite to taking
such action.
15. VOTING RIGHTS OF INVESTMENTS
(a) All rights of voting conferred by Investments held under
this Agreement shall be exercised or not in such manner
as the Manager may reasonably determine PROVIDED THAT if
the Fund shall instruct the Manager as to the exercise
of voting rights in respect of such Investments the
Manager shall give effect to such instructions.
Page 129 of 198 Pages
<PAGE>
(b) If the Manager shall have been expressly notified in
writing by the Board of any interest of any member of
the Board in any Investment, the Manager shall seek the
instructions of the Board prior to the exercise any
rights of voting thereon and the Fund undertakes to
procure that each member of the Board forthwith notifies
the Manager of any change in any interest notified to
the Manager pursuant to this subclause.
(c) The Fund shall from time to time upon written request
from the Manager execute and deliver or cause to be
executed and delivered to the Manager or its nominee(s)
such powers of attorney or proxies as may reasonably be
required authorising such attorneys or proxies to vote,
consent or otherwise act in accordance with this
Agreement in respect of all or any part of the
Investments of the Fund.
(d) The term "rights of voting" and the word "vote" as used
in this clause shall include a vote at a meeting and any
consent to or approval of any arrangement, scheme or
resolution or any alteration in or abandonment of any
right attaching to any part of the assets of the
relevant company and the right to requisition or convene
any meeting or to give notice of any resolution or to
circulate any statement.
16. NO ASSIGNMENT
This Agreement is personal to the parties hereto and the
Manager may not sub-contract the performance of any of its
obligations hereunder except as specifically provided herein
nor shall either party be entitled to assign the whole or any
part of its rights hereunder.
17. TERMINATION
(a) This Agreement shall, subject to hereinafter provided,
continue in force for a period of two years and
thereafter until determined by the Fund or the Manager
giving to the other party hereto not less than twelve
months notice in writing expiring at any time PROVIDED
THAT this Agreement may be determined by the Fund or as
the case may be the Manager (the "First Party")
forthwith if the other party (the "Second Party") to
this Agreement:
i. shall commit any breach of its obligations under
this Agreement and shall fail to make good such
breach within thirty days of receipt of notice
from the First Party requiring it to do so; or
ii. shall pass a resolution for the winding-up of the
Second Party (except a voluntary liquidation for
the purpose of reconstruction or amalgamation
upon terms previously approved in writing by the
First Party) or if any competent Court shall
order a winding-up of the Second Party or if the
Second Party shall be declared "en desastre" or
if a receiver shall be appointed over the whole
of a substantial part of the Second Party's
assets; or
Page 130 of 198 Pages
<PAGE>
iii. the Manager ceases to hold all authorisations,
licences or consents necessary for the conduct of
its business hereunder.
Any termination shall be without prejudice to any
rights of the parties hereto which may have arisen
prior to such termination or as a result thereof.
(b) On termination of its appointment the Manager shall
deliver to the Fund, or as it shall direct, all books of
account, records, registers, correspondence and
documents and assets relating to the affairs of or
belonging to the Fund and in the possession of or under
the control of the Manager and shall take all necessary
steps to vest in the Fund or any new Manager any assets
previously held in the name of or to the order of the
Manager on behalf of the Fund.
18. DISCLOSURE
Subject as provided below, none of the parties hereto shall,
either before or after the termination of this Agreement,
disclose to any person not authorised to receive the same any
confidential information relating to any other party or to the
affairs of such party of which the party disclosing the same
shall become possessed during the period of this Agreement and
each party shall use its best endeavors to prevent any such
disclosure aforesaid, PROVIDED THAT a party to this Agreement
may:
i. disclose such information to any of its
professional advisers;
ii. disclose such information to any adviser
appointed by it for the purpose of giving
investment advice;
iii. disclose such information pursuant to any order
of a Court in the United Kingdom or the Island of
Guernsey or any order of the Stock Exchange or by
any United Kingdom or Guernsey governmental
agency with whose proper instructions the party
in question is bound or accustomed to comply;
iv. disclose such information to the extent that it
is then in the public domain otherwise than by
reason of a breach of this Clause 16;
v. disclose such information as it may reasonable
consider necessary or desirable in connection
with the enforcement of this Agreement or the
preservation or maintenance of its rights
hereunder; and
vi. disclose such information to any permitted
transferee or assignee.
19. ADDITIONAL SERVICES
If the Manager, being willing and having been called upon to
do so by the Board, shall render or perform extra or special
services of any kind to the Fund the Manager shall be entitled
to receive such additional fees therefor as the Board in
consultation with the Manager shall determine.
Page 131 of 198 Pages
<PAGE>
20. MISCELLANEOUS
(a) Any notice required to be given under this Agreement may
be served by being left at, or sent by recorded delivery
to, the registered office for the time being of the
party on which it is to be served, and any notice given
by post shall be deemed to have been served at the
expiration of 72 hours after it is posted, and in
proving such service it shall be sufficient to prove
that the envelope containing the notice was properly
addressed and sent by recorded delivery.
(b) Neither the benefit nor the burden of this Agreement
shall be assigned by either the Fund or the Manager save
with the prior written consent of the other party to
this Agreement.
(c) This Agreement sets forth the entire Agreement and
understanding between the parties hereto as to the
matters set out herein.
21. PROPER LAW
This Agreement shall be governed by and construed in
accordance with the laws of the Island of Guernsey.
AS WITNESS the hands of the duly authorised representatives of the
parties hereto the day and year first before written.
SIGNED by William Simpson
for and on behalf of /s/ William Simpson
ORYX INTERNATIONAL
GROWTH FUND LIMITED
SIGNED by J C Wilcockson
for and on behalf of /s/ J C Wilcockson
CONSULTA (CHANNEL ISLANDS)
LIMITED
Page 132 of 198 Pages
EXHIBIT (h)
ADMINISTRATION, MANAGEMENT
AND CUSTODY AGREEMENT
BETWEEN
AMERICAN OPPORTUNITY TRUST
AND J O HAMBRO & PARTNERS
Page 133 of 198 Pages
<PAGE>
Dated 7th January 1993
LEVERAGED OPPORTUNITY TRUST PLC
and
J O HAMBRO & PARTNERS LIMITED
ADMINISTRATION, MANAGEMENT AND CUSTODY AGREEMENT
Allen & Overy
London
Page 134 of 198 Pages
<PAGE>
THIS AGREEMENT is made on 7th January 1993 BETWEEN:
(1) LEVERAGED OPPORTUNITY TRUST PLC of 11 Devonshire Square,
London EC2M 4YR (the "Company"); and
(2) J O HAMBRO & PARTNERS LIMITED of 30 Queen Anne's Gate, London
SW1H 9AL (the "Manager").
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
(1) In this Agreement:
"Board"
means the Board of Directors of the Company, or a committee
thereof or (where the context so admits) a Director of the
Company, duly authorized;
"IMRO"
means the Investment Management Regulatory Organization
Limited or its successors from time to time;
"IMRO Rules"
means the rules of IMRO from time to time applicable;
"Investments"
includes any asset, right or interest falling within any
paragraph in Part I of Schedule I to the Financial Services
Act 1986 and any other asset, right or interest in respect of
property of any kind and, without prejudice to the foregoing,
wherever situate and whether or not producing income;
"Portfolio"
means the Investments from time to time owned by the Company;
"Stock Exchange"
means The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited;
"subsidiary"
shall have the meaning ascribed thereto by Section 736 of the
Companies Act 1985.
Page 135 of 198 Pages
<PAGE>
(2) References to persons include bodies corporate and
unincorporated associations and references to companies
include any bodies corporate.
(3) Any reference to a statutory provision includes any statutory
modification or re-enactment of it for the time being in
force.
(4) Subclauses (1) to (3) above apply unless the contrary
intention appears.
(5) The headings in this Agreement do not affect its construction.
(6) References to amounts payable by the Company shall be
exclusive of value added tax thereon so that value added tax
shall be payable in addition if and to the extent chargeable.
2. Appointment
The Company hereby appoints the Manager to be the investment
manager and administrator of the Company to provide the
services and facilities mentioned below with effect from the
date of execution of this Agreement, such appointment to
continue (unless previously terminated under Clause 11 below)
until terminated by either party upon the expiry of not less
than two years' written notice given to the other.
3. Investment Management
(1) The Manager shall undertake with regard to such Investments as
may from time to time be notified to and agreed with the
Manager (the "Relevant Investments"), the duties normally
performed by investment managers, subject to the policy
directions and overall guidelines from time to time notified
to the Manager by the Board, and in particular but without in
any way prejudicing the generality of the foregoing shall on
behalf of the Company:
(a) keep under constant review the Relevant Investments
from time to time held by the Company;
(b) be entitled (at its absolute discretion and without
obtaining the prior written permission of the
Company) to withdraw deposits, to effect purchases
and sales and other transactions in respect of
Relevant Investments and subscriptions to issues of
Relevant Investments, to enter into underwriting
commitments in relation to Relevant Investments on
behalf of the Company and otherwise to invest,
realise and re-invest the Portfolio in relation to
Relevant Instruments and exercise all rights
attaching to Relevant Investments comprised therein
and in each such case to charge the amounts payable
to the Portfolio;
(c) search out and evaluate investment opportunities in
Relevant Investments for the Company;
(d) analyse the progress of companies in which the
Company has made Relevant Investments;
Page 136 of 198 Pages
<PAGE>
(e) submit to the Board such reports and information
regarding Relevant Investments as the Board shall
reasonably require; and
(f) recommend to the Board any future developments or
changes to the investment policy of the Company which
the Manager may consider to be advisable.
(2) The Board shall procure that Christopher Mills consults with
the Manager prior to making investment decisions on behalf of
the Company relating to unlisted investments. If the Manager
objects to any such investment decisions proposed by
Christopher Mills it may notify the Board and the Board shall
use reasonable endeavours to convene a Board meeting to
consider the matter prior to the proposed investment decision
being implemented.
4. Administration and other facilities
The Manager shall provide the Company with the following
services and facilities:
(a) office facilities at 30 Queen Anne's Gate, London
SW1H 9AL or such other office as may be agreed by the
Company with the Manager and such office shall be
used as the registered and principal office of the
Company and there shall be available there a suitable
room (upon the giving of not less than five days'
prior notice or such shorter notice as may be agreed
from time to time) for the holding of meetings of the
Board but nothing in this Agreement shall be
construed or have effect as constituting the
relationship of landlord and tenant between the
Manger and the Company and the Company shall be a
bare licensee of the Manager;
(b) all financial, accountancy, secretarial, clerical and
other administrative services of any kind necessary
for the conduct of the affairs of the Company;
(c) keeping on behalf of the Company such books, records
and statements to give a complete record of all
transactions carried out by the Company in relation
to the investment, realisation and re-investment of
the Portfolio and such other books, records and
statements as may be required to give a complete
record of all other transactions carried out by the
Company and as will enable the Company to publish
yearly and half-yearly the report and accounts of the
Company as required by the regulations of The Stock
Exchange;
(d) acting as Secretary to the Company, attending all
meetings of the Board and performing all the duties
reasonably expected of a Company Secretary including
liaison with The Stock Exchange, preparation and
delivery of returns of The Registrar of Companies and
the maintenance of all statutory books other than the
register of members;
Page 137 of 198 Pages
<PAGE>
(e) all necessary equipment and personnel with a proper
and adequate standard of proficiency and experience
to enable the Manger to carry out its functions under
this Agreement; and
(f) the Manager shall permit such of its employees (if
any) as the Company may reasonably request to be
Directors of the Company.
5. Ancillary Powers of Manager
The Manager may on behalf of the Company in respect of
Relevant Investments:
(a) issue orders and instructions to the Company's
bankers and custodians with respect to the
disposition of securities and moneys of the Company
provided always that any such disposition shall at
all times be subject to and effected in accordance
with the arrangements for the time being in force
between the Company and its bankers and custodians;
(b) exercise any voting rights attached to the securities
included in the Investments in pursuance of the
policy agreed and established by the Board from time
to time; and
(c) issue instructions to and consult the auditors and
legal advisers of the Company regarding any matter or
thing relating to Investments including (where the
Board thinks fit) institution of legal proceedings.
6. Further obligations of the Manager
(1) The Manager shall, and shall procure that its representatives,
employees and delegates shall, obey and comply with all lawful
orders and directions in relation to the Manager's obligations
under this Agreement given to it or them from time to time by
the Board and shall observe and comply with the Memorandum and
Articles of Association of the Company as from time to time
amended and with all resolutions of the Board or the Company
of which they are informed.
(2) In particular, all activities engaged in by the Manager or any
representative, employee or delegate of the Manager on behalf
of the Company shall at all times be subject to the overall
control of and review by the Board and without limiting the
generality of the foregoing the Board shall set out the
investment policy of the Company specifying the manner in
which it wishes the Manger to give effect to such policies.
(3) The Board shall instruct the Manager as to the exercise of the
voting rights attached to the securities in the Portfolio and
may:
(a) prohibit the Manager from investing for the account
of the Company in any particular security or class of
securities;
Page 138 of 198 Pages
<PAGE>
(b) require the Manager to sell any security or class of
securities or (subject to the availability of funds)
to purchase any security or class of securities; and
(c) withdraw any part of the assets of the Company from
the management of the Manager (but without thereby
reducing the fee payable to the Manager under this
Agreement) for any reason whatsoever.
7. Custody
(1) Unless it receives contrary instructions from the Company, the
Manager shall make arrangements for the safekeeping of all
cash, securities or other assets in the Portfolio for the
account of the Company in accordance with this Clause 7
provided that the obligations of the Manager under this Clause
7 shall not apply in relation to any cash or other assets of
the Company until the cash or assets concerned have been made
available to the Manager following execution of this
Agreement. Insofar as the Manager holds assets comprised in
the Portfolio (or documents of title relating to such assets),
it shall do so separately from its own assets and on trust for
the Company.
(2) The Manager shall arrange for (i) any uninvested cash to be
held in the Company's name in one or more accounts with Bank
of Scotland or other first class banks approved by the Company
and (ii) all securities to be held in custody accounts in the
Company's name at Bank of Scotland or other reputable
custodians approved by the Company.
(3) The Manager shall make arrangements for:
(a) the collection of all income and principal with
respect to the Portfolio and credit cash receipts to
the bank accounts referred to above;
(b) the exchange of securities where the exchange is
purely ministerial (including the exchange of
temporary securities for those in definitive form and
the exchange of warrants for, or other documents of
entitlement to securities for, the securities
themselves);
(c) the surrender of securities at maturity or when
called for redemption against payment therefor.
(4) The Manager shall notify any bank or custodian holding
property comprised in the Portfolio that it is not the
Manager's property.
(5) The Manager shall have no right of lien or set-off or any
right of retention with respect to any Investments held in the
Portfolio.
(6) All proxies or similar requests for consent and all notices
(other than of a routine or immaterial nature) received by the
Manager relating to securities held in the Portfolio are to be
forwarded to the Company or are to be dealt with in accordance
with instructions given by the Company from time to time.
Page 139 of 198 Pages
<PAGE>
8. Management charge and expenses
(1) The Company shall pay to the Manager as remuneration for the
provision of its services hereunder a fee payable annually in
arrears on 31st December in each year and calculated at the
rate of 0.25 per cent per annum (plus value added tax) by
reference to the Net Asset Value (calculated on a gross assets
basis) as at 30th September, the first such payment, being a
pro rata part of the annual fee, to be made on 31st December
1993 in respect of the period from the date of this Agreement
to 30th September, 1993. On termination of this Agreement a
pro rata fee shall be payable for any part of the year to 30th
September for which this Agreement is in force, payable on the
31st December next following termination.
(2) The Company shall bear the expenses of any kind incurred by or
on behalf of the Manager in the carrying out of its duties and
the provision of services and facilities hereunder, save for
telex, telephone and other routine communication charges and
the costs of providing normal office accommodation and
secretarial and clerical staff for the normal performance of
those duties.
(3) The Manager shall also be entitled to additional fees,
calculated on a time basis, for services provided in
connection with any transactions involving the Company and/or
any of its subsidiaries outside the ordinary course of
business including in particular any issue of shares,
debentures or other securities or any reorganization,
redemption, consolidation, sub-division or other alteration of
capital or any takeover, acquisition or disposal of or by the
Company and/or any of its subsidiaries.
(4) An amount equal to any amount payable to the Manager pursuant
to this Clause shall be paid by the Company to the Manager
promptly after delivery to the Company by the Manager of an
invoice giving reasonable details in respect thereof.
Notwithstanding the foregoing, the Manager shall be entitled,
without delivery of an invoice as aforesaid, to charge any
such amount to the Portfolio subject to notifying the Company
in writing of the amount promptly thereafter.
(5) For the purpose of this Clause 8 "Net Asset Value" shall mean
the amount of the fixed and current tangible assets of the
Company (other than shares in its subsidiaries) and its
subsidiaries after deducting therefrom an amount equal to the
current liabilities and the borrowings or other indebtedness
in the nature of borrowings (except for borrowings repayable
after an initial term of more than three years) of the Company
and its subsidiaries as reasonably determined by the Manager.
9. Subsidiaries
If the Company has at any time one or more subsidiaries then,
unless otherwise directed by the Board, the Manager shall in
addition provide the same services to such subsidiaries as it
provides hereunder to the Company.
10. Freedom to act
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<PAGE>
The services of the Manager to the Company under this
Agreement shall not be exclusive and the Manager shall be free
to render similar services to others and nothing in this
Agreement shall preclude the Manager from having dealings with
or on behalf of the Company either on its own account or on
account of its clients or others or make it accountable to the
Company in respect of any profit or commission from any such
dealings.
11. Termination
(1) If:
(a) either party shall commit any substantial or
continuing material breach of this Agreement and
(where such breach is capable of remedy) fail to
remedy such a breach within thirty days of being
given written notice of it by the other party; or
(b) either party shall have a receiver or administrator
appointed over the whole or any part of their assets
or a resolution is passed or an order made for the
winding-up of such party other than as mentioned in
sub-clause (2) below,
the other party shall be entitled to terminate the appointment
under this Agreement forthwith by giving written notice of
termination to such party.
(2) On termination of the appointment of the Manager, the Manager
shall be entitled to receive all fees and other money accrued
due up to the date of such termination but shall not be
entitled to compensation in respect of termination (except
where such appointment is terminated by the Manager in
accordance with sub-clause (1)(a) of this Clause or by the
Company in breach of Clause 2) and the Manager shall deliver
to the Company or as it shall direct, all books of account,
records, registers, correspondence, documents and assets
belonging to the Company or any subsidiary in possession of or
under the control of the Manager and take all necessary steps
to vest in the Company any assets previously held in the name
of or to the order of the Manager on behalf of the Company or
any subsidiary.
(3) The Manager shall also be entitled to terminate its
appointment on giving four months' notice to the Company if
either the Board fails to procure that Christopher Mills
consults with the Manager in accordance with Clause 3(2) or if
the Manager has objected to an investment proposed by
Christopher Mills and has given notice to the Board under
Clause 3(2), but the Board has approved the proposal.
12. Confidentiality and records
(1) Neither party shall during the continuance of this Agreement
or after its termination disclose to any person, firm or
company whatsoever (except with the authority of the other
party or unless ordered to do so by The Stock Exchange, the
Panel on Takeovers and Mergers or by a regulatory body or
court of competent jurisdiction) any information relating to
the business,
Page 141 of 198 Pages
<PAGE>
Portfolio, finances or other matters of a confidential nature
of the other party of which it may in the course of its duties
under this Agreement or otherwise become possessed and each
party shall use all reasonable endeavors to prevent any such
disclosure. (2) All books, statistical records, accounts,
contract notes, correspondence and other documents relating to
the business and affairs of the Company shall be the exclusive
property of the Company and the Manager shall when reasonably
requested produce the same to the Company or its employees,
agents or auditors together with any information within the
knowledge of the Manager in relation thereto.
13. Reports and valuations
(1) The Manager shall provide the Company with regular monthly
statements and valuations in respect of the Portfolio as at
dates selected by the Company provided that the Company shall
supply valuations to the Manager in respect of unlisted
investments (not being Relevant Investments). The valuations
provided by the Manager shall be in accordance with procedures
and on a basis reviewed by the Company's auditors and as
required by law or the regulations of The Stock Exchange. The
reference currency will be pounds sterling for such documents.
(2) Statements of the contents for the Portfolio prepared in
accordance with the IMRO Rules will be provided on a quarterly
basis in respect of quarterly periods of account.
14. Notices
Any notice to be given under this Agreement may be served
personally or by post at the registered office of the party to
be served and in the case of service of first class post shall
be deemed duly served twenty-four hours after posting and
proof of posting shall be proof of delivery.
15. Liability and Indemnity
(1) Subject to the terms of this Agreement, the Manager shall be
under no liability to the Company for any loss, costs or
damages which may arise in connection with the conduct of its
duties hereunder or the custody of the Investments or for any
depreciation in the value of any Investments or their safe
custody unless due to wilful default or negligence on its
part.
(2) The Company shall indemnify the Manager and keep it
indemnified against any costs, claims, demands or proceedings
made by any person and in any way arising from its appointment
hereunder unless due to wilful default or negligence on its
part. The Manager agrees promptly to inform the Company in
writing of any event which comes to its notice as a result of
which the Company might become liable to indemnify the Manager
under this Clause.
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<PAGE>
16. Assignment
Neither party hereto shall be entitled to assign or otherwise
part with any interest in this Agreement unless the prior
written consent of the other has been obtained except that, if
either party transfers the whole or a substantial part of its
undertaking and property to another company as part of a
reconstruction or amalgamation, that party may by written
notice to the other transfer all its rights and obligations
under this Agreement to that other company.
17. Governing law
This Agreement is governed by and shall be construed in
accordance with the laws of England to the jurisdiction of
whose Courts the parties irrevocably submit.
IN WITNESS of which each of the parties has executed this Agreement on
the date first mentioned on page 1.
SIGNED by J.J. Nelson )
) /s/ James J. Nelson
on behalf of )
LEVERAGED OPPORTUNITY TRUST PLC )
in the presence of: )
SIGNED by R.C.O. Hellyer )
) /s/ R.C.O. Hellyer
on behalf of )
J O HAMBRO & PARTNERS LIMITED )
in the presence of: )
Page 143 of 198 Pages
EXHIBIT (i)
CLIENT AGREEMENT
MISHAL KANOO
PAGE 144 OF 198 PAGES
<PAGE>
JO HAMBRO & PARTNERS LIMITED
----------------------------
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 3RD DAY OF JUNE, 1996
BETWEEN:
(1) JO 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) Mishal Kanoo
---------------------------------------------(portfolio name)
(hereafter known as the "Client")
of Kanoo Group, P.O. Box 290, Dubai, United Arab Emirates
-----------------------------------------------------------
-----------------------------------------------------------
(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 1 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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<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 stabilized. The attention of the Client is referred
to the statement contained in Schedule II relating to
stabilization. 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.
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<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
PAGE 147 OF 198 PAGES
<PAGE>
third party and shall 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.
(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 realise 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,
PAGE 148 OF 198 PAGES
<PAGE>
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
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
PAGE 149 OF 198 PAGES
<PAGE>
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
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 a
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
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.
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<PAGE>
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 with
all expenses including stamp duties, stamp duty reserve tax
and VAT thereon (if applicable). The Client recognises 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
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.
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<PAGE>
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 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
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<PAGE>
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.
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 realised 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 authorised 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
PAGE 153 OF 198 PAGES
<PAGE>
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.
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
PAGE 154 OF 198 PAGES
<PAGE>
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.
PAGE 155 OF 198 PAGES
<PAGE>
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 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
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.
PART III - Risk Warnings and Risk Disclosure Statement
PAGE 156 OF 198 PAGES
<PAGE>
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 favourable or unfavourable 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, unfavourable as well as favourable, 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 authorise 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 stabilise (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 interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
PAGE 158 OF 198 PAGES
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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>
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
<C> <C>
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
PAGE 159 OF 198 PAGES
<PAGE>
FOR JO HAMBRO & PARTNERS LIMITED
/s/ James Hambro 16th May 1996
- ------------------------------------ ----------------------
FOR THE CLIENT*
/s/ Mishal Kanoo Date 3rd June 1996
- ------------------------------------ ----------------------
- ------------------------------------
- ------------------------------------
*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 authorising 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 OF 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.
PAGE 160 OF 198 PAGES
EXHIBIT (j)
CLIENT AGREEMENT
MR. & MRS. JAN GILBERT
PAGE 161 OF 198 PAGES
<PAGE>
JO HAMBRO & PARTNERS LIMITED
----------------------------
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE DAY OF
19
BETWEEN:
(1) JO 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) Mr. and Mrs. Jan G. Gilbert
----------------------------------------------------------(portfolio
name)
(hereafter known as the "Client")
of 7118 W. Isanogel Road
---------------------------------------------------
Muncie, IN 47304 (USA)
---------------------------------------------------
(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 1 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.
3. JOHP shall not be obliged to undertake the management of
investments the management of which would in its opinion be
onerous to it.
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<PAGE>
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 stabilized. The attention of the Client is referred
to the statement contained in Schedule II relating to
stabilization. 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.
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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
PAGE 164 OF 198 PAGES
<PAGE>
third party and shall 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.
(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 realise 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,
PAGE 165 OF 198 PAGES
<PAGE>
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
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
PAGE 166 OF 198 PAGES
<PAGE>
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
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 a
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
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.
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<PAGE>
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 with
all expenses including stamp duties, stamp duty reserve tax
and VAT thereon (if applicable). The Client recognises 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
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.
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<PAGE>
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 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
PAGE 169 OF 198 PAGES
<PAGE>
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.
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 realised 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 authorised 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
PAGE 170 OF 198 PAGES
<PAGE>
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.
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
PAGE 171 OF 198 PAGES
<PAGE>
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.
PAGE 172 OF 198 PAGES
<PAGE>
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 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
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.
PART III - Risk Warnings and Risk Disclosure Statement
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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 favourable or unfavourable 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, unfavourable as well as favourable, 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 authorise 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 stabilise (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 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
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
(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
PAGE 176 OF 198 PAGES
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FOR JO HAMBRO & PARTNERS LIMITED
/s/ Christopher Mills 1/10/96
- ------------------------------------ ------------------
FOR THE CLIENT*
/s/ J. Gilbert 28/10/96
- ------------------------------------ ------------------
/s/ Jan Gilbert
- ------------------------------------ ------------------
- ------------------------------------
*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 authorising 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 OF 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.
PAGE 177 OF 198 PAGES
EXHIBIT (k)
CLIENT AGREEMENT
THE SUPERANNUATION FUND OF WIGAN
RICHARDSON INTERNATIONAL LIMITED
PAGE 178 OF 198 PAGES
<PAGE>
JO HAMBRO & PARTNERS LIMITED
----------------------------
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE DAY OF
19
BETWEEN:
(1) JO 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) The Superannuation Fund of Wigan Richardson International Limited
-----------------------------------------------------------------------
(portfolio name)
(hereafter known as the "Client")
of National Westminster Bank Chambers, Church Road
-------------------------------------------------------------------
Paddock Wood, Tonbridge, Kent, TN12 6EP
-----------------------------------------------------------------------
(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 1 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.
3. JOHP shall not be obliged to undertake the management of
investments the management of which would in its opinion be
onerous to it.
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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 stabilized. The attention of the Client is referred
to the statement contained in Schedule II relating to
stabilization. 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.
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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
PAGE 181 OF 198 PAGES
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third party and shall 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.
(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 realise 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,
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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
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
PAGE 183 OF 198 PAGES
<PAGE>
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
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 a
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
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.
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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 with
all expenses including stamp duties, stamp duty reserve tax
and VAT thereon (if applicable). The Client recognises 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
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.
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<PAGE>
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 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
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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.
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 realised 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 authorised 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
PAGE 187 OF 198 PAGES
<PAGE>
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.
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
PAGE 188 OF 198 PAGES
<PAGE>
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.
PAGE 189 OF 198 PAGES
<PAGE>
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 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
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.
PART III - Risk Warnings and Risk Disclosure Statement
PAGE 190 OF 198 PAGES
<PAGE>
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 favourable or unfavourable 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, unfavourable as well as favourable, 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 authorise 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.
PAGE 191 OF 198 PAGES
<PAGE>
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 stabilise (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 interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
PAGE 192 OF 198 PAGES
<PAGE>
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>
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
<C> <C>
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
PAGE 193 OF 198 PAGES
<PAGE>
FOR JO HAMBRO & PARTNERS LIMITED
26th Feb. 1997 Date /s/ James Hambro
- -------------------------------------------- --------------------------
FOR THE CLIENT*
18 Feb. 1997 /s/ M. Wigan
- -------------------------------------------- --------------------------
/s/ L.G. Kapellar /s/ K.K. Watkiss
- -------------------------------------------- --------------------------
/s/ C.J. Barker
- --------------------------------------------
*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 authorising 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 OF 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.
PAGE 194 OF 198 PAGES
EXHIBIT (l)
JOINT FILING AGREEMENT
PAGE 195 OF 198 PAGES
<PAGE>
JOINT FILING AGREEMENT
The undersigned hereby agree that the Statement on Schedule 13D dated September
9, 1997 with respect to the shares of common stock, Class A $0.10 par value, of
Figgie International Inc. and any further amendments thereto executed by each or
any of us shall be filed on behalf of each of us pursuant to and in accordance
with the provisions of Rule 13d-1(f) under the Securities Exchange Act of 1934,
as amended.
This Agreement may be executed in separate counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
Date: September 9, 1997 AMERICAN OPPORTUNITY TRUST PLC
By: J O Hambro & Partners Limited,
Its investment advisor
By: /s/ R.C.O. Hellyer
---------------------------------
Name: R.C.O. Hellyer
Title: Director
Date: September 9, 1997 NORTH ATLANTIC SMALLER COMPANIES
INVESTMENT TRUST PLC
By: J O Hambro & Partners Limited,
Its investment advisor
By: /s/ R.C.O. Hellyer
---------------------------------
Name: R.C.O. Hellyer
Title: Director
Date: September 9, 1997 J O HAMBRO & PARTNERS LIMITED
By: /s/ R.C.O. Hellyer
---------------------------------
Name: R.C.O. Hellyer
Title: Director
PAGE 196 OF 198 PAGES
<PAGE>
Date: September 9, 1997 J O HAMBRO & COMPANY LIMITED
By: /s/ R.C.O. Hellyer
---------------------------------
Name: R.C.O. Hellyer
Title: Director
Date: September 9, 1997 J O HAMBRO ASSET MANAGEMENT LIMITED
By: /s/ R.C.O. Hellyer
---------------------------------
Name: R.C.O. Hellyer
Title: Director
PAGE 197 OF 198 PAGES
<PAGE>
Date: September 9, 1997 GROWTH FINANCIAL SERVICES LIMITED
(formerly GROWTH INVESTMENT MANAGEMENT LIMITED)
By: /s/ Christopher H. B. Mills
---------------------------------
Name: C. H. B. Mills
Title: Director
Date: September 9, 1997 ORYX INTERNATIONAL GROWTH FUND LIMITED
By: J O Hambro & Partners Limited,
---------------------------------
Its investment advisor
By: /s/ R.C.O. Hellyer
---------------------------------
Name: R.C.O. Hellyer
Title: Director
Date: September 9, 1997 CONSULTA (CHANNEL ISLANDS) LTD
By: /s/ Peter A. Heaps
---------------------------------
Name: Peter A. Heaps
Title: Director
Date: September 9, 1997 CHRISTOPHER MILLS
/s/ Christopher Mills
-------------------------------------
PAGE 198 OF 198 PAGES
