<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
THE INTERLAKE CORPORATION
----------------------------------------------------------------
(Name of issuer)
Common Stock, par value $1.00 per share
----------------------------------------------------------------
(Title of class of securities)
45870210
--------------
(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)
June 13, 1996
------------------------------------------------------
(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 [ ].
Check the following box if a fee is being paid with the statement [X]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Exhibit Index appears on page 41.
Page 1 of 144 Pages
<PAGE>
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 2 of 144 Pages
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 3 of 144 Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. 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 8. SHARED VOTING POWER
OWNED BY 1,457,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,457,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,457,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
HC, CO
- --------------------------------------------------------------------------------
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 4 of 144 Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. 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 8. SHARED VOTING POWER
OWNED BY 1,457,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,457,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,457,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
HC, CO
- --------------------------------------------------------------------------------
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 5 of 144 Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
J O Hambro & Partners Limited
No S.S. or IRS Identification Number
- --------------------------------------------------------------------------------
(a) [ ]
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(b) [X]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
England
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 1,457,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,457,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,457,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IA, CO
- --------------------------------------------------------------------------------
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 6 of 144 Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. 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 8. SHARED VOTING POWER
OWNED BY 1,457,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,457,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,457,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 7 of 144 Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Growth Financial Services Limited
(formerly named Growth Investment Management Limited)
No S.S. or IRS Identification Number
- --------------------------------------------------------------------------------
(a) [ ]
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(b) [X]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
England
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 790,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
790,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
790,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 8 of 144 Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
North Atlantic Smaller Companies Investment Trust plc
(formerly named Consolidated Venture 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 8. SHARED VOTING POWER
OWNED BY 790,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
790,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
790,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- --------------------------------------------------------------------------------
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 9 of 144 Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
American Opportunity Trust plc
(formerly named Leveraged 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 8. SHARED VOTING POWER
OWNED BY 327,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
327,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
327,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- --------------------------------------------------------------------------------
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 10 of 144 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 8. SHARED VOTING POWER
OWNED BY 300,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
300,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
300,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- --------------------------------------------------------------------------------
<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 11 of 144 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 8. SHARED VOTING POWER
OWNED BY 300,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
300,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
300,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IA, CO
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. SECURITY AND ISSUER
This statement relates to the Common Stock, par value $1.00 per share
(the "Common Stock"), of The Interlake Corporation, a Delaware corporation (the
"Company"), which has its principal executive offices at 550 Warrenville Road,
Lisle, Illinois 60532.
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 with its principal office and
business at 10 Park Place, London SW1A 1LP England. NASCIT is a
publicly-held investment trust company. Christopher Harwood Bernard
Mills and J O Hambro & Partners serve as co-investment advisers to
NASCIT.
Page 12 of 144 Pages
<PAGE>
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
business and office 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 P.O. Box 208, Bermuda House, St. Julian's
Avenue, St. Peter Port, Guernsey. Consulta is principally engaged in
the business of investment management and advising and serves as
investment manager for 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.
2(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).
2(e). Civil Securities Law Proceedings
During the last five years, neither the Filing Parties (or a
controlling entity thereof) nor any executive officer or director of any of the
Filing Parties (or a controlling entity thereof) has been a party to a civil
Page 13 of 144 Pages
<PAGE>
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 (the "Shares") of Common Stock of the Company to which this statement
relates.
The amount of funds used to date to acquire the Shares is approximately
$4,270,275.00 (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 14 of 144 Pages
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
5(a-b) The aggregate number and percentage of the outstanding Common
Stock of the Company beneficially owned by each of the Filing Parties is as
follows:
<TABLE>
<CAPTION>
Number of
Number of Number of Shares:
Shares: Shares: Sole
Aggregate Sole Shared or Shared
Filing Number of Power to Power to Power to Approximate
Party Shares: Vote Vote Dispose Percentage*
- ------ --------- --------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
J O Hambro 1,457,000 0 1,457,000 1,457,000 6.3%
& Company
J O Hambro Asset 1,457,000 0 1,457,000 1,457,000 6.3%
Management
J O Hambro 1,457,000 0 1,457,000 1,457,000 6.3%
& Partners
Christopher H.B. 1,457,000 0 1,457,000 1,457,000 6.3%
Mills
GFS 790,000 0 790,000 790,000 3.4%
NASCIT 790,000 0 790,000 790,000 3.4%
American 327,000 0 327,000 327,000 1.4%
Opportunity Trust
Oryx 300,000 0 300,000 300,000 1.3%
Consulta 300,000 0 300,000 300,000 1.3%
- -------------
* Based on 23,112,999 shares of Common Stock, par value $1.00 per share, outstanding as of April 15, 1996, which is
based on information reported in the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996.
</TABLE>
5(c). In the 60 days prior to the date of filing of this Statement, the
Filing Parties effected no transactions in the Common Stock other than those
described in Items 3 and 4 hereof and set forth in the following table:
<TABLE>
<CAPTION>
Price per
No. of Share
Date Filing Party Shares (US$) Broker
- ---- ------------ ------ ---------- ------
<C> <C> <C> <C> <C>
19-Apr-96 American Opportunity Trust 125,000 2.250 South Coast
29-Apr-96 American Opportunity Trust 35,000 2.625 South Coast
01-May-96 American Opportunity Trust 90,000 2.750 South Coast
07-May-96 NASCIT 91,300 2.875 South Coast
13-May-96 NASCIT 119,100 2.875 South Coast
Page 15 of 144 Pages
<PAGE>
14-May.96 NASCIT 100,000 2.875 South Coast
23-May-96 NASCIT 150,000 3.000 Wheat First
23-May-96 American Opportunity Trust 50,000 3.000 Wheat First
30-May-96 Oryx 50,000 3.000 Wheat First
10-Jun-96 Oryx 100,000 3.125 Wheat First
10-Jun-96 J O Hambro & Partners 10,000 3.250 Wheat First
(on behalf of Mishal Kanoo)
12-Jun-96 Oryx 150,000 3.125 Wheat First
13-Jun-96 American Opportunity Trust 27,000 3.000 Wheat First
13-Jun-96 NASCIT 239,600 3.125 Wheat First
13-Jun-96 NASCIT 90,000 3.000 Wheat First
13-Jun-96 J O Hambro & Partners (on behalf 30,000 3.125 Wheat First
of Lord Stevens of Ludgate Pension
Fund)
</TABLE>
All of the above transactions were effected in the open market and were
purchases.
5(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.
5(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.
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.
Page 16 of 144 Pages
<PAGE>
As investment manager for private clients Lord Stevens of Ludgate
Pension Fund and Mishal Kanoo, J O Hambro & Partners has the right to transfer
and vote the shares of Common Stock of the Company pursuant to agreements
entered into with such private clients.
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 9, 1996
between J O Hambro & Partners and Lord Stevens of Ludgate
Pension Fund;
(d) Investment Management Agreement dated as of June 3, 1996
between J O Hambro & Partners and Mishal Kanoo;
(e) Investment Management Agreement dated as of February 16, 1995
between Consulta and J O Hambro & Partners;
(f) Investment Management Agreement dated as of February 16, 1995
between Oryx and Consulta;
(g) Investment Management Agreement dated as of January 7, 1993
between J O Hambro & Partners and American Opportunity Trust;
(h) Joint Filing Agreement dated as of May 3, 1996 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; and
(i) Power of Attorney dated as of February 2, 1993 executed by
Christopher Harwood Bernard Mills.
Page 17 of 144 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: l7th June 1996 J O HAMBRO & PARTNERS LIMITED
By: /s/ R C O Hellyer
-------------------------
Name: R C O Hellyer
Title: Director
Executed on behalf of the parties
hereto pursuant to the filed
herewith Joint Filing Agreement.
<PAGE>
Schedule A
The following table sets forth certain information concerning each of the
directors and executive officers of J O Hambro & Company Limited ("J O Hambro &
Company") as of the date hereof.
Name: Rupert Nicholas Hambro
(Chairman)
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Chairman, J O Hambro & Company
Name: Richard Alexander Hambro
(Director)
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Chairman, J O Hambro Investment
Management Limited(1)
Director, J O Hambro & Company
Name: James Daryl Hambro
(Managing Director)
- ------------
(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>
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro &
Company
Managing Director, J O Hambro &
Partners
Name: Richard David Christopher Brooke
(Director)
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Director, J O Hambro & Company
Chairman, NASCIT
Name: Robert Charles Orlando Hellyer
(Executive Director)
Citizenship: British
Business Address: J O Hambro & Company Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro &
Company
Executive Director, J O Hambro &
Partners
Executive Director, J O Hambro
Investment Management Limited
Executive Director, J O Hambro Asset
Management
<PAGE>
Name: David Frank Chaplin
(Director)
Citizenship: British
Business Address: J O Hambro Investment
Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro
Investment Management Limited
Name: George M. Magan
(Director)
Citizenship: British
Business Address: 32 Queen Anne's Gate
London SW1H 9AB
England
Principal Occupation: Chairman, J O Hambro Magan & Company
Limited(2)
Name: Alton Fernando Irby III
(Director)
Citizenship: USA
Business Address: 32 Queen Anne's Gate
London SW1H 9AB
England
Principal Occupation: Deputy Chairman, J O Hambro Magan &
Company Limited
- ------------
(2) J O Hambro Magan & Company Limited is principally engaged in the
corporate finance business.
<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
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of J O Hambro & Partners Limited ("J O Hambro &
Partners") as of the date hereof.
Name: James Daryl Hambro
(Managing Director)
Citizenship: British
Business Address: J O Hambro & Partners Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro &
Partners
Managing Director, J O Hambro &
Company
Name: Robert Charles Orlando Hellyer
(Executive Director)
Citizenship: British
Business Address: J O Hambro & Partners Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro &
Partners
Executive Director, J O Hambro
Asset Management
Executive Director, J O Hambro
Investment Management Limited
Executive Director, J O Hambro &
Company
Name: Christopher Harwood Bernard Mills
(Director)
Citizenship: British
Business Address: 10 Park Place
<PAGE>
London SW1A 1LP
England
Principal Occupation: Executive Director, NASCIT
Executive Director, American
Opportunity Trust
Director, J O Hambro & Partners
Director, Oryx
Name: Claudia Margaret Cecil Perkins
(Director)
Citizenship: British
Business Address: J O Hambro & Partners Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Director, J O Hambro & Partners
<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
<PAGE>
USA
Principal Occupation: Director, NASCIT
Name: Robert D. le P. Power
(Director)
Citizenship: British
Business Address: SouthCoast Capital Corporation(3)
575 Lexington Avenue
Th 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.(4)
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
- --------
(3) SouthCoast Capital Corporation principally engages in the brokerage
business.
(4) Bear Stearns Co. Inc. principally engages in the brokerage
business.
<PAGE>
Businets Address: Buchanan Partners Limited(5)
Buchanan House
3 St James's Square
London SW1Y 4JU
England
Principal Occupation: Director, Buchanan Partners Limited
- ------------
(5) Buchanan Partners Limited principally engages in the investment
management business.
<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>
The following table set forth certain information concerning each of the
directors and executive officers of American Opportunity Trust plc ("American
Opportunity Trust") as of the date hereof.
Name: R. Alexander Hammond-Chambers
(Chairman)
Citizenship: British
Business Address: Covey Advertising Limited
1 Fountainhall Road
Edinburgh EH9 2NL
Principal Occupation: Director, Covey Advertising
Limited(6)
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
- --------
(6) Covey Advertising Limited is principally engaged in the advertising
business.
<PAGE>
Business Address: Gildea Management Company(7)
90 Ferris Hill Road
New Canaan, Connecticut 06840
USA
Principal Occupation: President, Gildea Management Company
Name The Hon. James J. Nelson
(Director)
Citizenship: British
Business Address: Foreign & Colonial Ventures(8)
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.(9)
7 West Nile Street
Glasgow G2 2PX
Scotland
Principal Occupation: Director, Murray Johnstone Ltd.
- --------
(7) Management Company is principally engaged in the investment
management business.
(8) Foreign & Colonial Ventures is principally engaged in the
investment management business.
(9) is principally engaged in the investment management business.
<PAGE>
Name: Philip Ehrmann
(Director)
Citizenship: British
Business Address: Gartmore Investment Management
Ltd.(10)
Gartmore House
16 - 18 Monument Street
London EC3R 8AJ
England
Principal Occupation: Investment Manager, Gartmore
Investment Management Ltd.
- --------
(10) Investment Management Limited is principally engaged in the
investment management business.
<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 plc(11)
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 Grenfell(12)
23 Great Winchester Street
London EC2P 2AX
England
- --------
(11) Oriel Group plc is a holding company for specialist insurance
brokers.
(12) Morgan Grenfell is a merchant bank.
<PAGE>
Principal Occupation: Company Director
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: 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 Company(13)
PO Box 2254
Postal Code 112
Ruwi
Sultanate of Oman
- --------
(13) Oman National Insurance Company is principally engaged in the
insurance business.
<PAGE>
Principal Occupation: Chief Executive, Oman National
Insurance
Company, SAOG
Name: Rupert Arthur Rees Evans
(Director)
Citizenship: British
Business Address: Ozanne van Leuven Perrot & Evans(14)
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
- --------
(14) Ozanne van Leuven Perrot & Evans is a law firm.
<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)
Limited(15)
Bermuda House
St Julian's Avenue
St Peter Port
- --------
(15) Management International (Guernsey) Limited is principally
engaged in the investment management business.
<PAGE>
Guernsey
Principal Occupation: Managing Director
Management International
(Guernsey) Limited
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>
The following table sets forth certain information concerning each of the
directors and executive officers of Consulta 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
<PAGE>
Name: Susan Diana Frances Johns
(Director)
Citizenship: British
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>
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 9, 1996
between J O Hambro & Partners and Lord Stevens of Ludgate
Pension Fund;
(d) Investment Management Agreement dated as of June 3, 1996
between J O Hambro & Partners and Mishal Kanoo;
(e) Investment Management Agreement dated as of February 16,
1995 between Consulta and J O Hambro & Partners;
(f) Investment Management Agreement dated as of February 16,
1995 between Oryx and Consulta;
(g) Investment Management Agreement dated as of January 7, 1993
between J O Hambro & Partners and American Opportunity
Trust;
(h) Joint Filing Agreement dated as of May 3, 1996 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; and
(i) Power of Attorney dated as of February 2, 1993 executed by
Christopher Harwood Barnard Mills.
<PAGE>
EXHIBIT 99.(a)
DATED 7th January, 1993
-----------------------
CONSOLIDATED VENTURE TRUST PLC
and
GROWTH INVESTMENT MANAGEMENT LIMITED
and
CHRISTOPHER HARWOOD BERNARD MILLS
------------------------------------
SECONDMENT SERVICES AGREEMENT
------------------------------------
Allen & Overy
London
<PAGE>
THIS AGREEMENT is made on 7th January, 1993.
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
(1) 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:
(a) 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
(b) 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"
<PAGE>
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;
"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.
(2) References to persons include bodies corporate and unincorporated
associations and references to companies include any bodies corporate.
<PAGE>
(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 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
(1) 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.
(2) GIM shall employ the Executive for the purposes of enabling it to provide
the Services.
(3) The provision of the Services by GIM shall be deemed to take effect from
the date of execution of this Agreement ("the Commencement Date").
(4) 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
(1) 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.
(2) 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.
(3) 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:
(a) keeping under review the investments from time to time held by the
Company;
<PAGE>
(b) 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;
(c) searching out and evaluating investment opportunities for the Company;
(d) analysing the progress of companies in which the Company has invested;
(e) submitting to the Board of Directors such reports and information
regarding investments as the Board of Directors shall reasonably
require; and
(f) recommending to the Board of Directors any future developments or
changes to the investment policy of the Company.
(4) 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.
(5) 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.
(6) 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).
(7) 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.
<PAGE>
(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 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.
<PAGE>
7. Holidays
(1) 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.
(2) GIM and the Executive agree that the Executive will take his holidays at
such times as are convenient to the Company.
8. Confidential Information
(1) 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, forecasts, studies or other documents, is
referred to in this Agreement as "Information").
(2) 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.
(3) 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.
(4) 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.
<PAGE>
(5) 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.
(6) 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.
(7) 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
(1) 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.
(2) 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
(1) 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).
(2) If:
(a) the Executive ceases for any reason to be an employee of GIM;
(b) the Executive becomes of unsound mind or is, or may be, suffering from
mental disorder and either:
<PAGE>
(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;
(c) 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;
(d) 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);
(e) 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);
(f) 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);
(g) 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
(h) 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.
<PAGE>
(3) 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
(1) Nothing contained in this Agreement shall be construed or have effect as
constituting any relationship of employer and employee between the Company
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.
(2) The Executive shall at all times be an employee of GIM.
(3) 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.
(4) 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
(1) 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.
(2) 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.
<PAGE>
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
(1) 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 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.
(2) 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>
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.
<PAGE>
4. Such percentum will be calculated from the fraction arising in accordance
with the following formula:
(A - 1) x 0.1
(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.
<PAGE>
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;
(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>
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: )
(E13971013)
<PAGE>
EXHIBIT 99.(b)
DATED 7th January 1993
CONSOLIDATED VENTURE TRUST PLC
and
J O HAMBRO & PARTNERS LIMITED
-------------------------------------------------------------
ADMINISTRATION, MANAGEMENT AND CUSTODY AGREEMENT
--------------------------------------------------------------
Allen & Overy
London
<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"
<PAGE>
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"
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 reenactment 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:
<PAGE>
(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 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;
<PAGE>
(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;
(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
<PAGE>
(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:
(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.
<PAGE>
(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.
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.
<PAGE>
(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 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
<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 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 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
<PAGE>
(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.
<PAGE>
(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>
EXHIBIT 99.(c)
CLIENT AGREEMENT
LORD STEVENS OF LUDGATE
PENSION FUND
<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>
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.
<PAGE>
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.
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.
<PAGE>
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
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.
<PAGE>
(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
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.
<PAGE>
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 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.
<PAGE>
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 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.
<PAGE>
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.
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.
<PAGE>
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.
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:
<PAGE>
(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.
<PAGE>
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
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>
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
<PAGE>
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHP provides services under this Agreement relating
to any investment denominated in a foreign currency, a movement in exchange
rates may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
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.
<PAGE>
As long as he obeys a strict set of rules the "stabilising manager", normal the
issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilised does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interest in the new issue or
interested in purchasing at the price at which transactions are taking place".
SCHEDULE III
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
(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)
</TABLE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rate where applicable
<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>
EXHIBIT 99.(d)
J O 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. 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. Mishal Kanoo (portfolio name)
--------------------------------------------------------
(hereafter known as the "Client)
of Kanoo Group, PO 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 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>
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>
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>
All uninvested cash will be held in this account by a bank chosen by
JOHP. The account will be debited withe 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>
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 me
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 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 person selected by JOHP) as shall in
JOHP's opinion be fair.
<PAGE>
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 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 is 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 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.
<PAGE>
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.
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.
<PAGE>
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:
<PAGE>
(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.
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.
<PAGE>
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>
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
Investments Denominated in Foreign Currencies
<PAGE>
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 broker 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 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.
<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 interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<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
(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)
</TABLE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rate where applicable
<PAGE>
FOR J O HAMBRO & PARTNERS LIMITED
/s/ J.D. Hambro Date 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 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 parners should sign and insert the date.
<PAGE>
EXHIBIT 99.(e)
[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;
<PAGE>
(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 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>
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>
EXHIBIT 99.(f)
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:
1. INTERPRETATION
1.1 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
<PAGE>
"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 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
<PAGE>
"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
"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
1.2 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.
1.3 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.
1.4 The headings in this Agreement shall not affect its interpretation.
2. COMMENCEMENT AND APPOINTMENT
2.1 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
<PAGE>
2.2 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").
2.3 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.
3. DUTIES AS MANAGER
3.1 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:
(a) 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;
(b) negotiate and supervise borrowings of the Fund within such limits as
the Board may from time to time specify;
(c) 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;
(d) 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;
(e) 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;
<PAGE>
(f) at the Board's request provide a representative to attend meetings of
the Board in connection with any of its duties specified above;
(g) 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;
(h) 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
(i) 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.
3.2 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 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.
3.3 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.
3.4 In performing its duties under this Agreement the Manager shall:
(a) 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;
<PAGE>
(b) 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
(c) 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.
4. POWERS OF THE MANAGER
4.1 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:
(a) 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;
(b) 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;
(c) to commit the Fund to any obligation to underwrite any issue or offer
for sale of securities;
(d) 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;
(e) 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;
<PAGE>
(f) 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
(g) generally to have and to exercise all such powers as may be necessary
or reasonably incidental to the performance of its duties hereunder.
4.2 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.
4.3 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.
5. HOLDING OF THE INVESTMENTS
5.1 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.
5.2 The Manager shall arrange such safekeeping and banking facilities with the
Custodian on behalf of the Fund as may be approved by the Fund.
6. RESTRICTIONS ON THE MANAGER
6.1 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 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.
<PAGE>
6.2 Without prejudice to the generality of Clause 6.1, the Board may from time
to time:
(a) 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;
(b) 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;
(c) define the investment policy of the Fund and specify the manner in
which the Manager shall give effect to such policy; and
(d) 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.
6.3 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.
7. FEE
7.1 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.
<PAGE>
7.2 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
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.
7.3 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.
8. EXPENSES
8.1 Unless otherwise agreed between the Fund and the Manager, the Fund shall
pay or procure payment of the following expenses:
(a) 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;
(b) 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;
(c) 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;
<PAGE>
(d) all reasonable expenses of every nature of or incidental to deposits
or loans made by or on behalf of the Fund;
(e) 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;
(f) interest on and charges and expenses of arranging, and arising out of,
all proper borrowings made by or on behalf of the Fund;
(g) all taxes and corporate fees payable by the Fund to any governmental
or other authority or agency in any jurisdiction;
(h) the fees and expenses of the Administrator and Custodian in accordance
with the Administration Agreement and the Custodian Agreement;
(i) 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;
(j) 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;
(k) any promotional expenses properly incurred by the Fund;
(l) the fees and expenses of Directors of the Fund; and
(m) any other fees or charges expressly approved by the Board.
8.2 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:
<PAGE>
(a) such staff as may be necessary for the due performance of its duties
hereunder;
(b) such office and other accommodation as may be necessary for the due
performance of its duties hereunder; and
(c) 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.
9. NON-EXCLUSIVITY
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.
10. 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.
11. INTERESTS AND THE COMPANY
11.1 Nothing herein contained shall prevent the Manager or any Associated Person
of the Manager from:
<PAGE>
(a) 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;
(b) 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;
(c) 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;
(d) 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
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.
11.2 For the purpose of this Clause 11 the expression "the Fund" shall include
the subsidiaries of the Fund for the time being (if any).
12. LIABILITY OF THE MANAGER
12.1 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.
<PAGE>
12.2 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.
12.3 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.
12.4 The Fund hereby undertakes to hold harmless and indemnify the Manager or
procure the Manager to be held harmless and indemnified against all
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.
12.5 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:
<PAGE>
(a) the Custodian or the Administrator; or
(b) any bank or other financial institution holding money pursuant to
Clause 5 of this Agreement; or
(c) 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 cournterparty),
unless such default is the direct result of the Manager's wilful default or
negligence.
12.6 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.
13. VOTING RIGHTS OF INVESTMENTS
13.1 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.
13.2 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.
<PAGE>
13.3 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.
13.4 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.
14. NO ASSIGNMENT
This Agreement is personal to the parties hereto and the Manager may not
subcontract 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.
15. TERMINATION
15.1 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:
(a) 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
(b) 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>
(c) 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.
15.2 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.
16. 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:
(a) disclose such information to any of its professional advisers;
(b) disclose such information to any adviser appointed by it for the
purpose of giving investment advice;
(c) 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;
(d) 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;
(e) 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
(f) disclose such information to any permitted transferee or assignee.
<PAGE>
17. 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.
18. MISCELLANEOUS
18.1 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.
18.2 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.
18.3 This Agreement sets forth the entire Agreement and understanding between
the parties hereto as to the matters set out herein.
19. PROPER LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Island of Guernsey.
<PAGE>
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>
EXHIBIT 99.(g)
Dated 7th January 1993
LEVERAGED OPPORTUNITY TRUST PLC
and
J O HAMBRO & PARTNERS LIMITED
ADMINISTRATION, MANAGEMENT AND CUSTODY AGREEMENT
Allen & Overy
London
<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;
<PAGE>
"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 reenactment 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;
(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;
<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 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.
<PAGE>
(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;
(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;
<PAGE>
(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.
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.
<PAGE>
(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
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.
<PAGE>
(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,
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.
<PAGE>
(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.
<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>
EXHIBIT 99.(h)
JOINT FILING AGREEMENT
The undersigned hereby agree that the Statement on Schedule 13-D dated 17th June
1996 with respect to the shares of common stock, $1 par value, of Interlake
Corporation 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: 17th June 1996 NORTH ATLANTIC SMALLER COMPANIES
INVESTMENT TRUST PLC
By J O Hambro & Partners Ltd, its
investment advisor
By: /s/ R C O Hellyer
--------------------------------
Name: R C O Hellyer
Title: Director
Date: 17th June 1996 J O HAMBRO & PARTNERS LIMITED
By: /s/ R C O Hellyer
--------------------------------
Name: R C O Hellyer
Title: Director
Date: 17th June 1996 J O HAMBRO & COMPANY LIMITED
By: /s/ R C O Hellyer
--------------------------------
Name: R C O Hellyer
Title: Director
Date: 17th June 1996 J O HAMBRO ASSET MANAGEMENT LIMITED
By: /s/ R C O Hellyer
--------------------------------
Name: R C O Hellyer
Title: Director
<PAGE>
Date: 17th June 1996 ORYX INTERNATIONAL GROWTH FUND
LIMITED
By J O Hambro & Partners Ltd, its
investment advisor
By: /s/ R C O Hellyer
--------------------------------
Name: R C O Hellyer
Title: Director
Date: 17th June 1996 CONSULTA (CHANNEL ISLANDS) LTD
By: /s/ Peter A. Heaps
--------------------------------
Name: Peter A. Heaps
Title: Director
Date: 17th June 1996 GROWTH FINANCIAL SERVICES LIMITED
formerly GROWTH INVESTMENT
MANAGEMENT LIMITED
By: /s/ R C O Hellyer
--------------------------------
Name: R C O Hellyer
Title: pursuant to
a power of attorney
from Mr. C H B Mills,
director dated 2nd
February 1993
Date: 17th June 1996 CHRISTOPHER HARWOOD BERNARD MILLS
/s/ R C O Hellyer
----------------------------------------
pursuant to a power of attorney dated
2nd February 1993
<PAGE>
Date: 17th June 1996 AMERICAN OPPORTUNITY TRUST PLC
By J O Hambro & Partners Limited, its
investment advisor
By: /s/ R C O Hellyer
--------------------------------
Name: R C O Hellyer
Director
Date: 17th June 1996
<PAGE>
EXHIBIT 99.(i)
POWER OF ATTORNEY
This general Power of Attorney is made this second day of February 1993 by
Christopher Harwood Bernard Mills.
I hereby appoint Robert Charles Orlando Hellyer of 30 Queen Anne's Gate, London
SW1H 9AL to be my attorney whereby he is empowered to sign on my behalf all
documents required for the proper conduct of the businesses of J O Hambro &
Partners Limited, J O Hambro Investment Management Limited, Consolidated Venture
Trust plc, and its subsidiaries, Leveraged Opportunity Trust PLC and its
subsidiary and Growth Financial Services Limited (formerly Growth Investment
Management Limited). This Power shall include but not be limited to authorising
all statutory, regulatory and other legal submissions which may be required to
be made by any of the above companies.
IN WITNESS WHEREOF I have hereunto set my hand and seal the day and year first
above written:
Signed, Sealed and Delivered )
by the above named ) /s/ Christopher Mills
CHRISTOPHER HARWOOD BERNARD MILLS )
in the presence of: )
