<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
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)
July 11, 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 [ ]. (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 .
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>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 3 of 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 1,976,600
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,976,600
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,976,600
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.6%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
HC, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 4 of 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 1,976,600
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,976,600
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,976,600
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.6%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
HC, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 5 of 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 1,860,800
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,860,800
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,860,800
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.1%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IA, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 6 of Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
J O Hambro Investment Management Limited
No S.S. or IRS Identification Number
- --------------------------------------------------------------------------------
(a) [ ]
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(b) [X]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
England
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 115,800
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
115,800
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
115,800
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IA, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 7 of 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 1,976,600
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,976,600
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,976,600
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.6%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 8 of 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 988,300
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
988,300
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
988,300
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 9 of 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 988,300
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
988,300
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
988,300
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 10 of 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 400,000
EACH ------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
400,000
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
400,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
IV, CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 11 of 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
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
- ------------------- --------------------
CUSIP No. 45870210 Page 12 of 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
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
AMENDMENT NO. 1 TO
STATEMENT ON SCHEDULE 13D
This Amendment No. 1 to Statement on Schedule 13D (the "Amendment")
amends Items 2, 3, 5, 6 and 7 of the Statement on Schedule 13D (the "Schedule
13D") filed on June 21, 1996 with the Securities and Exchange Commission by the
Filing Parties.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is amended and restated in its entirety as follows:
2 (a-c, f).
I. Filing Parties:
This Statement is filed on behalf of the following ten 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 and J O Hambro Investment.
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. J O Hambro Investment Management Limited ("J O Hambro Investment") is a
corporation organized under the laws of England with its principal
office and business at 10 Park Place, London SW1A 1LP, England. J O
Hambro Investment is principally engaged in the business of
discretionary investment management of private client portfolios.
5. 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.
Page 13 of Pages
<PAGE>
6. 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.
7. 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.
8. American Opportunity Trust plc ("American Opportunity Trust"), formerly
named Leveraged Opportunity Trust plc, is a corporation organized under
the laws of England with its principal office and business at 10 Park
Place, London SW1A 1LP England. American Opportunity Trust is a
publicly-held investment trust company. Christopher Harwood Bernard
Mills and J O Hambro & Partners serve as co-investment advisers to
American Opportunity Trust.
9. 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.
10. 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 in turn a wholly-owned subsidiary of J O Hambro &
Company.
J O Hambro Investment is a majority-owned subsidiary of J O Hambro
Asset Management, which is in turn 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.
Page 14 of Pages
<PAGE>
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
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.
Schedule A which is incorporated by reference in this Item 2 is amended
and restated in its entirety as filed herewith.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
No change except that the second paragraph of Item 3 is replaced with
the following:
The amount of funds used to date to acquire the Shares is approximately
$5,846,821.30 (exclusive of brokerage fees and commissions).
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
No change except that Items 5(a-c) are replaced with the following:
5(a-b) The aggregate number and percentage of the
outstanding Common Stock of the Company beneficially owned by each of the Filing
Parties are as follows:
<TABLE>
<CAPTION>
Number of
Number of Number of Shares:
Shares: Shares: Sole
Aggregate Sole Shared or Shared
Filing Number of Power to Power to Power to Approximate
Party Shares: Vote Vote Dispose Percentage*
- ------ --------- ---------- --------- ---------- -----------
<S> <C> <C> <C> <C> <C>
J O Hambro & Company 1,976,600 0 1,976,600 1,976,600 8.6%
J O Hambro Asset Management 1,976,600 0 1,976,600 1,976,600 8.6%
Page 15 of Pages
<PAGE>
J O Hambro & Partners 1,860,800 0 1,860,800 1,860,800 8.1%
J O Hambro Investment 115,800 0 115,800 115,800 0.5%
Christopher H.B. Mills 1,976,600 0 1,976,600 1,976,600 8.6%
GFS 988,300 0 988,300 988,300 4.3%
NASCIT 988,300 0 988,300 988,300 4.3%
American Opportunity Trust 400,000 0 400,000 400,000 1.7%
Oryx 300,000 0 300,000 300,000 1.3%
Consulta 300,000 0 300,000 300,000 1.3%
<FN>
- -------------
* Based on 23,112,999 shares of Common Stock outstanding as of April 15, 1996, which is based on information reported in
the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1996.
</FN>
</TABLE>
5(c). In addition to the transactions reflected in Item 5(c) of the Schedule
13D filed on June 21, 1996, the Filing Parties have effected the transactions in
the Common Stock set forth in the following table:
Price Per
No. of Share
Date Filing Party Shares (US$) Broker
- ---- ------------ ------ --------- ------
14-Jun-96 American Opportunity Trust 5,775 3.000 Wheat First
14-Jun-96 NASCIT 17,325 3.000 Wheat First
17-Jun-96 NASCIT 4,600 3.000 Wheat First
18-Jun-96 NASCIT 3,075 3.000 Wheat First
18-Jun-96 American Opportunity Trust 2,725 3.000 Wheat First
20-Jun-96 NASCIT 3,500 3.000 Wheat First
27-Jun-96 NASCIT 2,500 3.125 Wheat First
28-Jun-96 NASCIT 15,000 3.125 Wheat First
Page 16 of Pages
<PAGE>
02-Jul-96 NASCIT 16,000 3.125 Wheat First
02-Jul-96 J O Hambro & Partners 2,400 3.125 Wheat First
(on behalf of Sannafi Ltd.)
02-Jul-96 J O Hambro & Partners 13,000 3.125 Wheat First
(on behalf of Seaway Ltd.)
03-Jul-96 NASCIT 21,000 3.125 Wheat First
03-Jul-96 American Opportunity Trust 21,500 3.125 Wheat First
03-Jul-96 J O Hambro & Partners 2,700 3.125 Wheat First
(on behalf of Sannafi Ltd.)
03-Jul-96 J O Hambro & Partners 18,300 3.125 Wheat First
(on behalf of Seaway Ltd.)
05-Jul-96 NASCIT 15,100 3.125 Wheat First
08-Jul-96 NASCIT 15,000 3.125 Wheat First
08-Jul-96 American Opportunity Trust 13,100 3.125 Wheat First
08-Jul-96 J O Hambro & Partners 2,000 3.125 Wheat First
(on behalf of Sannafi Ltd.)
08-Jul-96 J O Hambro & Partners 13,000 3.125 Wheat First
(on behalf of Seaway Ltd.)
10-Jul-96 J O Hambro & Partners 1,300 3.000 Wheat First
(on behalf of Sannafi Ltd.)
10-Jul-96 J O Hambro & Partners 8,700 3.000 Wheat First
(on behalf of Seaway Ltd.)
11-Jul-96 NASCIT 30,000 3.000 Wheat First
11-Jul-96 American Opportunity Trust 10,000 3.000 Wheat First
11-Jul-96 J O Hambro & Partners 4,000 3.000 Wheat First
(on behalf of Sannafi Ltd.)
11-Jul-96 J O Hambro & Partners 26,300 3.000 Wheat First
(on behalf of Seaway Ltd.)
16-Jul-96 NASCIT 19,900 2.872 Wheat First
16-Jul-96 American Opportunity Trust 16,400 2.872 Wheat First
Page 17 of Pages
<PAGE>
16-Jul-96 J O Hambro & Partners 2,130 2.872 Wheat First
(on behalf of Sannafi Ltd.)
16-Jul-96 J O Hambro & Partners 14,270 2.872 Wheat First
(on behalf of Seaway Ltd.)
16-Jul-96 J O Hambro Investment 10,000 2.872 Wheat First
(on behalf of Fife Ltd.)
16-Jul-96 J O Hambro Investment 7,500 2.872 Wheat First
(on behalf of Mrs. M.R. Hambro
Capital Account)
16-Jul-96 J O Hambro Investment 7,500 2.872 Wheat First
(on behalf of Aurigest Ltd.)
16-Jul-96 J O Hambro Investment 7,500 2.872 Wheat First
(on behalf of Mrs. Camilla
Stacpoole)
16-Jul-96 J O Hambro Investment 2,500 2.872 Wheat First
(on behalf of Abacus (C.I.)
Ltd.- T975)
16-Jul-96 J O Hambro Investment 2,500 2.872 Wheat First
(on behalf of Tim Fane)
16-Jul-96 J O Hambro Investment 2,500 2.872 Wheat First
(on behalf of H.B. Barlow's
1964 Settlement "C" for Naomi)
16-Jul-96 J O Hambro Investment 2,500 2.872 Wheat First
(on behalf of H.B. Barlow's 1964
Settlement "D" for Emily)
16-Jul-96 J O Hambro Investment 2,500 2.872 Wheat First
(on behalf of H.B. Barlow's 1964
Settlement "A" for Rebecca)
16-Jul-96 J O Hambro Investment 7,500 2.872 Wheat First
(on behalf of Lord King of
Wartnaby)
17-Jul-96 NASCIT 8,900 2.875 Wheat First
17-Jul-96 J O Hambro Investment 7,500 2.875 Wheat First
(on behalf of Intrepid
International Ltd.)
Page 18 of Pages
<PAGE>
18-Jul-96 NASCIT 6,400 3.069 Wheat First
18-Jul-96 American Opportunity Trust 3,500 3.069 Wheat First
18-Jul-96 J O Hambro & Partners 1,770 3.069 Wheat First
(on behalf of Sannafi Ltd.)
18-Jul-96 J O Hambro & Partners 4,630 3.069 Wheat First
(on behalf of Seaway Ltd.)
18-Jul-96 J O Hambro Investment 5,400 3.069 Wheat First
(on behalf of Lord Keith of
Castleacre)
18-Jul-96 J O Hambro Investment 5,000 3.069 Wheat First
(on behalf of The Jerwood
Foundation)
18-Jul-96 J O Hambro Investment 5,900 3.069 Wheat First
(on behalf of Rensid
Investments)
19-Jul-96 J O Hambro Investment 2,100 3.125 Wheat First
(on behalf of Lord Keith of
Castleacre)
19-Jul-96 J O Hambro Investment 3,300 3.125 Wheat First
(on behalf of C.H.A. Butter)
19-Jul-96 NASCIT 5,000 3.125 Wheat First
23-Jul-96 J O Hambro Investment 10,000 3.125 Wheat First
(on behalf of Fife Ltd.)
23-Jul-96 J O Hambro Investment 7,500 3.125 Wheat First
(on behalf of The Jerwood
Foundation)
23-Jul-96 J O Hambro Investment 6,600 3.125 Wheat First
(on behalf of Rensid
Investments)
23-Jul-96 J O Hambro Investment 10,000 3.125 Wheat First
(on behalf of Robin Kelton)
23-Jul-96 NASCIT 15,000 3.125 Wheat First
23-Jul-96 J O Hambro & Partners 4,500 3.125 Wheat First
(on behalf of Sannafi Ltd.)
23-Jul-96 J O Hambro & Partners 13,500 3.125 Wheat First
(on behalf of Seaway Ltd.)
All of the above transactions were effected in the open market and were
purchases.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
No change except that the fourth paragraph of Item 6 is replaced with
the two paragraphs set forth below:
As investment manager for private clients Sannafi Limited, Seaway
Limited, Mishal Kanoo and Lord Stevens of Ludgate Pension Fund, J O Hambro &
Partners and Christopher Harwood Bernard Mills, in his capacity as portfolio
manager, have the right to transfer and vote the shares of Common Stock of the
Company pursuant to either agreements or arrangements entered into with such
private clients.
As investment manager for private clients Lord Keith of Castleacre,
Lord King of Wartnaby, Mrs. Camilla Stacpoole, Intrepid International Limited,
Abacus (C.I.) Limited T975, Aurigest Limited, C.H.A. Butter, Esq., Tim Fane,
H.B. Barlow's 1964 Settlement "A" for Rebecca, H.B. Barlow's 1964 Settlement "C"
for Naomi, H.B. Barlow's 1964 Settlement "D"
Page 19 of Pages
<PAGE>
for Emily, Mrs. M.R. Hambro Capital Account, Fife Limited, The Jerwood
Foundation, Rensid Investments and Robin Kelton, J O Hambro Investment and
Christopher Harwood Bernard Mills, in his capacity as portfolio manager, have
the right to transfer and vote the shares of Common Stock of the Company
pursuant to either agreements or arrangements entered into with such private
clients.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
No change except for the addition of subparagraphs (j) through (aa) set
forth below:
(j) Investment Management Agreement dated as of February 29, 1996
between J O Hambro & Partners and Seaway Limited.
(k) Investment Management Agreement dated as of June 29, 1994
between J O Hambro Investment and Lord Keith of Castleacre.
(l) Investment Management Agreement dated as of October 10, 1994
between J O Hambro Investment and Lord King of Wartnaby.
(m) Investment Management Agreement dated as of March 3, 1993
between J O Hambro Investment and Mrs. Camilla Stacpoole.
(n) Investment Management Agreement dated as of June 17, 1994
between J O Hambro Investment and Intrepid International
Limited.
(o) Investment Management Agreement dated as of May 1, 1996
between J O Hambro Investment and Abacus (C.I.) Limited -
T975.
(p) Investment Management Agreement dated as of April 2, 1990
between J O Hambro Investment and Aurigest Limited.
(q) Investment Management Agreement dated as of September 19, 1995
between J O Hambro Investment and C.H.A. Butter, Esq.
(r) Investment Management Agreement dated as of July 10, 1992
between J O Hambro Investment and Tim Fane.
(s) Investment Management Agreement dated as of September 29, 1995
between J O Hambro Investment and H.B. Barlow's 1964
Settlement "A" for Rebecca.
(t) Investment Management Agreement dated as of September 21, 1995
between J O Hambro Investment and H.B. Barlow's 1964
Settlement "C" for Naomi.
(u) Investment Management Agreement dated as of October 26, 1995
between J O Hambro Investment and H.B. Barlow's 1964
Settlement "D" for Emily.
Page 20 of Pages
<PAGE>
(v) Investment Management Agreement dated as of September 20, 1995
between J O Hambro Investment and Mrs. M.R. Hambro Capital
Account.
(w) Investment Management Agreement dated as of August 25, 1995
between J O Hambro Investment and Fife Limited.
(x) Investment Management Agreement dated as of January 31, 1996
between J O Hambro Investment and The Jerwood Foundation.
(y) Investment Management Agreement dated as of September 20, 1995
between J O Hambro Investment and Rensid Investments.
(z) Investment Management Agreement dated as of June 8, 1995
between J O Hambro Investment and Robin Kelton.
(aa) Joint Filing Agreement dated as of July 25, 1996 among NASCIT,
J O Hambro & Partners, J O Hambro & Company, Oryx, Consulta,
GFS, Christopher Harwood Bernard Mills, American Opportunity
Trust, J O Hambro Investment and J O Hambro Asset Management.
Page 21 of 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 July 26, 1996 JO HAMBRO & PARTNERS LIMITED
By: /s/ Christopher Mills
Name: C.H.B. Mills
Title: Director
Executed on behalf of the
parties hereto pursuant to
the Joint Filing Agreement
filed herewith.
<PAGE>
Schedule A
Schedule A is amended and restated in its entirety as follows:
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)
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
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
<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
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 J O Hambro Investment Management Limited ("J
O Hambro Investment") as of the date hereof.
Name: Richard Alexander Hambro
(Chairman)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Chairman, J O Hambro Investment
Director, J O Hambro & Company
Director, J O Hambro Asset Management
Name: David Frank Chaplin
(Managing Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Managing Director, J O Hambro Investment
Name: John Alexander Anderson
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Lord Balniel
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Geoffrey Leo Alexander Galitzine
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Robert Charles Orlando Hellyer
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Executive Director, J O Hambro & Company
Executive Director, J O Hambro Asset Management
Executive Director, J O Hambro & Partners
Name: Christopher Mark Rose
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: William van Straubenzee
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: William Alexander Mavourn Francklin
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Ian Colquhoun Marris
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
Name: Angus Richard Bonson
(Executive Director)
Citizenship: British
Business Address: J O Hambro Investment Management Limited
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, J O Hambro Investment
<PAGE>
The following table sets forth certain information concerning each of the
directors and executive officers of North Atlantic Smaller Companies Investment
Trust plc ("NASCIT") as of the date hereof.
Name: Richard David Christopher Brooke
(Chairman)
Citizenship: British
Business address: North Atlantic Smaller Companies Investment
Trust plc
10 Park Place
London SW1A 1LP
England
Principal Occupation: Chairman, NASCIT
Director, J O Hambro & Company
Name: Christopher Harwood Bernard Mills
(Executive Director)
Citizenship: British
Business Address: North Atlantic Smaller Companies Investment
Trust plc
10 Park Place
London SW1A 1LP
England
Principal Occupation: Executive Director, NASCIT
Executive Director, American Opportunity Trust
plc
Director, J O Hambro & Partners
Director, Oryx
Name: Enrique Foster Gittes
(Director)
Citizenship: USA
Residence: 4 East 82nd Street
New York, New York 10028
USA
Principal Occupation: Director, NASCIT
Name: Robert D. le P. Power
(Director)
Citizenship: British
Business Address: SouthCoast Capital Corporation(3)
575 Lexington Avenue
7th Floor
New York, New York 10022
USA
Principal Occupation: Director, SouthCoast Capital Corporation
Name: Douglas P C Nation
(Director)
Citizenship: British
Business Address: Bear Stearns Co. Inc.(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
Business Address: Buchanan Partners Limited(5)
Buchanan House
3 St James's Square
London SW1Y 4JU
England
Principal Occupation: Director, Buchanan Partners Limited
<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 sets forth certain information concerning each of the
directors and executive officers of American Opportunity Trust plc ("American
Opportunity Trust") as of the date hereof.
Name: R. Alexander Hammond-Chambers
(Chairman)
Citizenship: British
Business Address: Covey Advertising Limited
1 Fountainhall Road
Edinburgh EH9 2NL
Principal Occupation: Director, Covey Advertising Limited(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
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.
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.
<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
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
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
<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
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
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
- -----------
(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.
(2) J O Hambro Magan & Company Limited is principally engaged in the
corporate finance business.
(3) SouthCoast Capital Corporation principally engages in the brokerage
business.
(4) Bear Stearns Co. Inc. principally engages in the brokerage business.
(5) Buchanan Partners Limited principally engages in the investment
management business.
(6) Covey Advertising Limited is principally engaged in the advertising
business.
(7) Gildea Management Company is principally engaged in the investment
management business.
(8) Foreign & Colonial Ventures is principally engaged in the investment
management business.
(9) Murray Johnstone Ltd. is principally engaged in the investment
management business.
(10) Gartmore Investment Management Limited is principally engaged in the
investment management business.
(11) Oriel Group plc is a holding company for specialist insurance brokers.
(12) Morgan Grenfell is a merchant bank.
(13) Oman National Insurance Company is principally engaged in the
insurance business.
(14) Ozanne van Leuven Perrot & Evans is a law firm.
(15) Management International (Guernsey) Limited is principally engaged in
the investment management business.
<PAGE>
Exhibit Index
No change except for the addition of subparagraphs (j) through (aa) set
forth below:
Document Page
(j) Investment Management Agreement dated as of February 29,
1996 between J O Hambro & Partners and Seaway Limited.
(k) Investment Management Agreement dated as of June 29, 1994
between J O Hambro Investment and Lord Keith of Castleacre.
(l) Investment Management Agreement dated as of October 10,
1994 between J O Hambro Investment and Lord King of
Wartnaby.
(m) Investment Management Agreement dated as of March 3, 1993
between J O Hambro Investment and Mrs. Camilla Stacpoole.
(n) Investment Management Agreement dated as of June 17, 1994
between J O Hambro Investment and Intrepid International
Limited.
(o) Investment Management Agreement dated as of May 1, 1996
between J O Hambro Investment and Abacus (C.I.) Limited -
T975.
(p) Investment Management Agreement dated as of April 2, 1990
between J O Hambro Investment and Aurigest Limited.
(q) Investment Management Agreement dated as of September 19,
1995 between J O Hambro Investment and C.H.A. Butter, Esq.
(r) Investment Management Agreement dated as of July 10, 1992
between J O Hambro Investment and Tim Fane.
(s) Investment Management Agreement dated as of September 29,
1995 between J O Hambro Investment and H.B. Barlow's 1964
Settlement "A" for Rebecca.
(t) Investment Management Agreement dated as of September 21,
1995 between J O Hambro Investment and H.B. Barlow's 1964
Settlement "C" for Naomi.
(u) Investment Management Agreement dated as of October 26,
1995 between J O Hambro Investment and H.B. Barlow's 1964
Settlement "D" for Emily.
(v) Investment Management Agreement dated as of September 20,
1995 between J O Hambro Investment and Mrs. M.R. Hambro
Capital Account.
(w) Investment Management Agreement dated as of August 25,
1995 between J O Hambro Investment and Fife Limited.
(x) Investment Management Agreement dated as of January 31,
1996 between J O Hambro Investment and The Jerwood
Foundation.
(y) Investment Management Agreement dated as of September 20,
1995 between J O Hambro Investment and Rensid Investments.
(z) Investment Management Agreement dated as of June 8, 1995
between J O Hambro Investment and Robin Kelton.
(aa) Joint Filing Agreement dated as of July 25, 1996 among NASCIT, J O Hambro
& Partners, J O Hambro & Company, Oryx, Consulta, GFS, Christopher Harwood
Bernard Mills, American Opportunity Trust, J O Hambro Investment and J O
Hambro Asset Management.
<PAGE>
EXHIBIT 99.(J)
CLIENT AGREEMENT
SEAWAY LIMITED
<PAGE>
J O HAMBRO & PARTNERS LIMITED
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 29TH DAY OF FEB., 1996.
BETWEEN:
(1) J O HAMBRO & PARTNERS LIMITED ("JOHP") a member of the Investment
Management Regulatory Organization Limited ("IMRO") and regulated in
the conduct of investment business by it, whose registered office is at
10 Park Place, London SW1A 1LP; and
(2) SEAWAY LIMITED (portfolio name)
(hereafter known as the "Client")
of
ORBIS HOUSE, PO BOX 20, 20 NEW STREET,
-----------------------------------------------------
ST PETER PORT, GUERNSEY, CHANNEL ISLANDS
----------------------------------------
(address)
NOW IT IS HEREBY AGREED as follows:
APPOINTMENT AND STATUS OF CLIENT
1. The Client, a Private Customer as defined in the Rules of IMRO, hereby
appoints JOHP to act as discretionary investment manager, subject to
the terms and conditions hereof, in relation to the Client's
investments and cash which are from time to time placed under the
management of JOHP (the "Portfolio") and JOHP hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHP by the Client having been
signed first by the Client then by JOHP. The assets comprising the
Portfolio and their opening value are set out in Schedule 1.
MANAGEMENT OF INVESTMENTS
2. JOHP shall have complete discretion, power and authority to manage the
Portfolio and to make investments and changes in investments on the
Client's behalf and as the Client's agent within the investment policy
agreed between JOHP and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHP). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
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.
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
All uninvested cash will be held in this account by a bank
chosen by JOHP. The account will be debited with the cost of
purchases on the Client's behalf and with sums due and payable
by the Client to JOHP and will be credited with the net
proceeds of sales on the Client's behalf. Money drawn on
behalf of the Client from the account shall not exceed the
total of money held in the account on behalf of the Client at
that time. Interest will be paid on sums standing to the
credit of the account and held on the Client's behalf at the
prevailing market rate. The interest will be paid quarterly
and will be credited to the Income Account on the Client's
behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHP in writing that the Client wishes cash in
the Portfolio to be held outside the United Kingdom, JOHP will
be (subject to applicable laws and regulations) hold such cash
in a bank account outside the United Kingdom.
17. The Client may at any time instruct JOHP to realize any or all of the
investments in the Portfolio and may withdraw any sum standing to the
credit of the Capital Account and held on the Client's behalf.
18. JOHP shall maintain separate ledger accounts on the Client's behalf.
All debits from and credits to the Investment Account and/or Capital
Account and/or Income Account on the Client's behalf shall be recorded
in the ledger accounts, and statements of account showing all
transactions, payments and receipts up to and including 5th April of
each year will be sent to the Client as soon as reasonably practicable
after that date.
COMMUNICATIONS
19. In the interests of proper administration of the Portfolio and for
related investment purposes JOHP, its representatives or employees, may
call upon the Client by telephone, visit or otherwise communicate
orally with the Client without express invitation. The Client's
attention is drawn to the fact that the Client will forfeit any right
conferred by section 56 of the Financial Services Act 1986 to treat as
unenforceable any investment agreement entered into in the course of or
in consequence of such a call.
ADMINISTRATION
20. Contract notes in respect of every purchase and sale on the Client's
behalf will be sent to the Client before the close of business on the
day next following the day on which the transaction was effected.
21. JOHP will on the Client's request forward details of all transactions
on the Client's behalf to the Client's tax advisor without additional
charge.
22. The Client may (upon giving reasonable notice) inspect all copy
contract notes, vouchers and copies of entries in books or electronic
recording media kept by JOHP or to which JOHP has access relating to
the transactions effected by JOHP on the Client's behalf and those
records will be maintained by JOHP or JOHP will ensure that they are
maintained for not less than seven years from the date of the relevant
transaction.
23. All documents will be sent to the Client at the address given above
unless and until otherwise directed in writing. The Client agrees that
it will immediately notify JOHP in writing of any change of address,
and that JOHP will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHP will prepare reviews of the Portfolio incorporating an up-to-date
valuation of each investment comprised in the Portfolio and a statement
of the basis on which it was valued on a six monthly basis or at such
other frequency as may be agreed between JOHP and the Client. Such
reviews shall be prepared as at such half yearly or other dates as
shall be agreed between JOHP and the client from time to time (each
such date being referred to as a "Valuation Date"), and JOHP will send
such reviews to the Client within twenty-five business days of each
Valuation Date.
25. On each Valuation Date cash will be valued at its face value and each
investment will be valued at its middle market price on the relevant
stock exchange at the close of business on such day or (if not a
business day) on the nearest prior business day as is supplied by
"Exshare" or any other suitable information service chosen by JOHP
(which figures shall be binding save for manifest error). For the
purpose of valuing in sterling any foreign currency or any security
listed on a foreign stock exchange the price of which is quoted in
currency other than sterling, the valuation and middle market exchange
rates supplied by "Exshare" or any other suitable information service
chosen by JOHP shall be applied. In the absence of that valuation or
exchange rate, the middle market price as determined by the Daily
Official List of The Stock Exchange or the equivalent list for any
relevant stock exchange will be applied. If none of the foregoing
methods of valuation are available, the investments in question will be
valued in such other manner (by JOHP or such other person selected by
JOHP) as shall in JOHP's opinion be fair.
26. JOHP accepts no liability for any period longer than 25 business days
between any Valuation Date and the despatch of a review to the Client
of his Portfolio which has elapsed as result of any act or omission of
any third party.
VOTING AND OTHER RIGHTS
27. JOHP will be entitled at its discretion and without notice to the
Client to procure or to refrain from procuring the exercise of voting
and other rights and privileges attaching to the investments comprised
in the Portfolio and to accede or refrain from acceding to any
compromise or arrangement in relation to any scheme of arrangement or
scheme for reconstruction or amalgamation involving any such
investment. JOHP will not forward to the Client any circulars, notices
or proxy cards received in respect of investments comprised in the
Portfolio.
FEES, COMMISSIONS AND EXPENSES
28. (a) The Client will pay a management fee to JOHP in respect of the
period beginning with first receipt by JOHP of any investments
or money from the Client and ending with a Valuation Date (as
defined in paragraph 24) and each period thereafter starting
with the day after any Valuation Date and ending on the next
Valuation Date (or the Termination Date as defined in
paragraph 39 if sooner).
(b) The management fee shall be calculated in accordance with the
'Scale Rates and Charges' set out in Schedule III.
(c) The management fee shall be payable not later than 14 days
after despatch to the Client of an invoice which shall be sent
to the Client as soon as is reasonably practicable after each
Valuation Date. Unless otherwise instructed the Client's
Capital Account will be debited with the amounts due to JOHP
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHP for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHP may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHP's
clients, one of whom may be the Client, or from return commissions
which benefit JOHP shall be entitled to retain. JOHP will be free to
accept and retain as an addition to its fees and commissions any other
commissions which it receives in the course of its dealing on the
Client's behalf: all such benefits and receipts shall supplement any
other remuneration receivable by JOHP in connection with transactions
effected by JOHP with or for the Client under this or any other
agreement with the Client and the Client consents to all such benefits
and receipts as are referred to above without prior disclosure of the
same to the Client on a case-by-case basis provided that JOHP
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHP receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHP shall be entitled to alter the manner of computing or charging its
fees, commissions and expenses or of paying interest on the money held
on the Client's behalf in the Capital Account (including with prejudice
to the generality of the foregoing its scale rates and charges) by
giving one month's prior notice in writing to the Client.
RESPONSIBILITY AND INSURANCE
32. JOHP will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHP or any of its
employees. Subject to the above, JOHP will not be responsible or liable
for any claim, loss, damage, expense or costs arising by reason of any
of the following:
(a) any investment decision taken and acted upon in accordance
with the terms of this Agreement; or
(b) any delay or default in the performance of its obligations
under this Agreement arising in consequence of any event or
circumstance beyond the reasonable control of JOHP; or
(c) any act or omission on the part of any of the banks or nominee
companies controlled by them or other eligible custodians as
referred to in paragraph 15 or any other person to which any
of them shall have delegated its function or on the part of
any other third party whatsoever; or
(d) any consequential loss suffered in consequence of any act or
omission of JOHP or any breach of JOHP of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHP from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHP arising out of the breach by the
Client of any warranty or by reason of any failure by the Client to
comply with and/or perform any of the terms and conditions contained in
this Agreement.
34. Where the Client is a joint account (whether or not a trust account)
JOHP shall unless and until otherwise directed in writing by all the
persons named in the joint account, be entitled to act on the
instructions of any of them and shall not in any whatsoever be liable
to the others for doing so.
35. JOHP has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHP or any dishonesty of
employees of JOHP.
36. Under Section 54 of the Financial Services Act 1986 The Securities and
Investments Board has established a scheme for compensating investors
by which the Client may be entitled to compensation in the event of
JOHP's inability to meet any liabilities to the Client. JOHP will make
available to the Client upon request a statement describing the
Client's rights to compensation under the scheme.
DELEGATION AND USE OF AGENTS
37. JOHP may delegate any of its functions under this Agreement to an
Associate and may provide information about the Client and the
Portfolio to any such Associate but JOHP's liability to the Client for
all matters so delegated shall not be affected thereby. JOHP shall give
to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHP may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHP to perform its services under this Agreement. JOHP
undertakes to act in good faith and with due diligence in the choice
and use of such agents.
TERMINATION OF AGREEMENT
39. This Agreement may be terminated by either party by giving written
notice of termination to the other at any time. Termination shall take
effect on the day upon which the other party actually receives the
notice (the "Termination Date") provided that, where the client is a
joint account, notice of termination by JOHP shall be given to every
person named in the joint account and in such circumstances the
Termination Date shall be deemed to be the day after the date of
posting by first class recorded delivery or other appropriate means to
all persons named in the joint account.
40. Upon the Termination Date, JOHP will complete expeditiously all
transactions in progress at termination but will not execute any
further transactions for the Client. Upon all fees, commissions,
expenses and other sums due to it and any other liabilities for which
it may be or become liable in connection with the management of the
Portfolio being settled or adequately secured to the satisfaction of
JOHP, JOHP will ensure that all investments and cash balances held on
the Client's behalf will, after any outstanding security registration,
stock exchange settlements and other administrative matters have been
completed and as soon as reasonably practicable, be transferred to the
Client or dealt with in accordance with the Client's instructions, in
all cases at the cost of the Client.
41. Termination will not affect accrued rights, existing commitments or any
contractual provision intended to survive termination and will be
without penalty or other additional payment except that JOHP may charge
the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHP necessarily incurs in
terminating this Agreement; and
(c) any losses necessarily realized in settling or concluding
outstanding obligations.
42. The death, bankruptcy or other incapacity or, in the case of a body
corporate, the cessation of business of the Client or a petition being
presented or a meeting being convened to consider a resolution for the
liquidation of the Client shall not of itself terminate JOHP's
appointment; but JOHP may at its discretion treat its receipt of actual
notice of any such events as if it were a written notice of termination
from the Client.
43. If the Client is a joint account the Client's obligations under this
Agreement shall be joint and several. On the death of any of the
persons constituting the Client (being survived by any such other
person), the Agreement shall not terminate and, except in the case of
trustees, the interest of the deceased in the Portfolio shall
automatically enure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHP.
CLIENT WARRANTIES
44. The Client warrants that the Client is the beneficial owner (or the
duly authorized agent of the beneficial owner) of the whole of the
Portfolio free from all liens, charges, encumbrances and restrictions
on transfer except insofar as advised by the Client to JOHP, and will
so remain during the currency of this Agreement.
45. The Client warrants that the Client is empowered to enter into this
Agreement without the consent or authority of any other party and in
the case of a Client being a body corporate the Client warrants that by
entering into this Agreement it is not nor will it be in breach of its
Memorandum or Articles of Association or any other relevant document.
GENERAL
46. Terms and expressions defined in the rules of IMRO for the time being
in force shall where the context so admits bear the same meaning in
this Agreement.
47. The Clause headings in this Agreement are included for ease of
reference only and shall not affect its interpretation.
48. The Schedules to this Agreement are an integral part of it.
49. If the Client is an individual this Agreement shall be binding on his
legal personal representatives.
50. This Agreement is personal to the parties hereto and shall not be
capable of assignment.
51. Subject to clause 31, no change, alteration or modification to this
Agreement or the Schedules hereto shall be made unless in writing and
signed by the parties hereto.
52. Notice required or authorized to be served hereunder must be addressed
to the address of the recipient stated above or to such other address
as may have been notified in writing by either party hereto to the
other as its address for the service of notices. In the case of notice
served by the Client from outside the United Kingdom and of notice
served upon the Client at an address outside the United Kingdom, the
notice shall be sufficiently served if served by pre-paid letter, cable
or telex. In the case of notice service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHP verbally or in writing about
any service JOHP has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHP's Chief Executive or to
a Senior Investment Manager who was not involved in the circumstances
relating to the complaint and who will investigate such circumstances.
Upon the conclusion of this investigation he shall make a written
report to the Client and take any action he deems necessary to rectify
the matter which is the subject of the complaint. The Client has the
right to refer any complaint to IMRO if the Client is not satisfied
with the action taken by the Chief Executive or Senior Investment
Manager, and in any event has the right to make the complaint direct to
IMRO or the Investment Ombudsman without prior reference to JOHP.
54. Each party to this Agreement shall respect and protect the
confidentiality of information acquired in consequence of it and shall
not disclose such information to any third party save in the course of
giving effect to this Agreement or as may be required by law, or where
requested by regulatory authorities, or to their professional advisors
where reasonably necessary for the performance of their professional
services.
55. This Agreement is subject to English law and the parties hereto hereby
submit to the jurisdiction of the English Courts in respect of it.
<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 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
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHP provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf. Stabilisation is a process whereby the market price of
a security is pegged or fixed during the period in which a new issue of
securities is sold to the public. Stabilisation may take place in the new issue
or in other securities related to the new issue in such a way that the price of
the other securities may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
1% per annum on portfolios of up to (pound)2,500,000
Large Portfolios (Over (pound)2,500,000) - by negotiation
COMMISSION RATES
<TABLE>
EQUITIES GILTS/FIXED INTEREST
<S> <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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
</TABLE>
<PAGE>
FOR J O HAMBRO & PARTNERS LIMITED
20/1/96 Date /s/ Christopher Mills
- -------------------------------------------- ------------------------------
FOR THE CLIENT* For and on behalf of
SEAWAY LIMITED
29th Feb., 1996 Date /s/ A.J. Kanoo
- -------------------------------------------- ------------------------------
Director
/s/
- -------------------------------------------- ------------------------------
Regulus Limited
Secretary
- --------------------------------------------
*The Client should sign here as follows. [Seal of SEAWAY LIMITED]
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHP have a certified true copy of a Board resolution confirming the
appointment of JOHP as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHP have a copy of
the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(K)
CLIENT AGREEMENT
LORD KEITH OF CASTLEACRE
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 29TH DAY OF JUNE, 1994.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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 KEITH OF CASTLEACRE (portfolio name)
(the "Client")
of
The Wicken House, Castleacre,
-----------------------------------------------------
Kings Lynn, Norfolk PE32 2BP
-----------------------------
(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 JOHIM 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 JOHIM
(the "Portfolio") and JOHIM hereby agrees to manage and administer the
Portfolio. The appointment will commence on the date on which this
Agreement is delivered to JOHIM by the Client having been signed first by
the Client then by JOHIM. The assets comprising the Portfolio and their
opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule II.
Such policy shall be subject to the guidelines and restrictions set out
in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise agreed between
the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder to
an extent which is not material in the context of the Portfolio taken as
a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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 JOHIM's
management (or in a fund, company, trust or Collective Investment Scheme
connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where the
Client so requests by notice in writing to JOHIM, registerable
investments will be registered in the name of an Eligible Custodian
situated outside the United Kingdom and nominated by JOHIM.
(c) All documents of title (including those in bearer form) will be
retained in the custody of an Eligible Custodian nominated by JOHIM
and situated in the United Kingdom or overseas as applicable.
(d) None of the Eligible Custodians as aforesaid shall be Associates of
JOHIM. However, the Client's registerable investments may at any time
be registered in the name of a nominee company which is an Associate
of JOHIM and Client's documents of title may be held by that
Associate at any time after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject to
paragraphs 5 and 6, JOHIM 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
JOHIM. 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 JOHIM
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 (as set out in
Schedule III). The interest will be paid quarterly and will be
credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's behalf
will be credited to this account and held there until the relevant
settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the Portfolio
will be credited to this account. Balances on the account will be
paid away quarterly in accordance with the Client's instructions or,
in the absence of such instructions, will be transferred quarterly to
the Capital Account as soon as reasonably practicable after the last
day of each such quarter being 5th April, 30th June, 5th October and
31st December in each year. Money drawn on behalf of the Client from
the account shall not exceed the total of money held in the account
on behalf of the Client at that time. Interest will not be paid on
monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the Client
notifies JOHIM in writing that the Client wishes cash in the
Portfolio to be held outside the United Kingdom, JOHIM 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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to the
transactions effected by JOHIM on the Client's behalf and those records
will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address, and
that JOHIM will not be responsible for any consequences which may arise
from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall be
prepared as at such half yearly dates as shall be agreed between JOHIM
and the Client from time to time (each such date being referred to as a
"Valuation Date"), and JOHIM will send such six monthly 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 JOHIM (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 JOHIM 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 JOHIM or such other
person selected by JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of the
period beginning with first receipt by JOHIM 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 JOHIM on the l4th day after
despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses or
liabilities which it may incur in properly carrying out its duties
hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day basis,
so that, if this Agreement commences or terminates other than on a
Valuation Date (as defined in paragraph 24), the amount of the fee shall
be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client on
purchases and sales of investments together with all expenses including
stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The
Client recognizes that JOHIM may gain a commission benefit from dealing
in a bulk purchase or sale on behalf of JOHIM's clients, one of whom may
be the Client, or from return commissions which benefit JOHIM shall be
entitled to retain. JOHIM 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 JOHIM in connection with transactions effected by JOHIM 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 JOHIM undertakes to secure for the
Client best execution of all transactions affected with or through a
party from whom JOHIM receives such benefits and commissions,
disregarding any benefit which the Client might obtain directly or
indirectly as a result of such arrangements.
31. JOHIM 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 without 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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be liable
to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHIM or any dishonesty of
employees of JOHIM.
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 JOHIM's
inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for all matters
so delegated shall not be affected thereby. JOHIM shall give to the
Client written notice of any delegation of a function which involves the
exercise of its discretionary investment management powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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 JOHIM, JOHIM 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 JOHIM may charge the
Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding to that
part of the period ending on a Valuation Date by reference to which
fees are payable, which has expired when this Agreement is
terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to
the benefit of the survivor(s) unless otherwise specified by notice in
writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the United Kingdom and
of notice served upon the Client at an address within the United Kingdom
the notice shall be sufficiently served if served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about any
service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or to
a Senior Investment Manager who was not involved in the circumstances
relating to the complaint and who will investigate such circumstances.
Upon the conclusion of this investigation he shall make a written report
to the Client and take any action he deems necessary to rectify the
matter which is the subject of the complaint. The Client has the right to
refer any complaint to IMRO if the Client is not satisfied with the
action taken by the Chief Executive or Senior Investment Manager, and in
any event has the right to make the complaint direct to IMRO or the
Investment Ombudsman without prior reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on or
effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts referred to in
paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
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)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first
(pound)2,500,000
0.3% per annum on the next (pound)1,500,000)
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to
(pound)10,000 0.5% on transactions up to(pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
(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)
<PAGE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
June 29th, 1994 Date /s/ David F. Chaplin
- -------------------------------------------- ---------------------------
FOR THE CLIENT*
13 October 1994 Date /s/ Lord Keith
- -------------------------------------- ---------------------------
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(L)
CLIENT AGREEMENT
LORD KING OF WARTNABY
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 10TH DAY OF OCTOBER, 1994.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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 KING OF WARTNABY (portfolio name)
(the "Client")
of
Berkeley Square House, 6th Floor,
Berkeley Square, London W1X 6BA
(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 JOHIM 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 JOHIM
(the "Portfolio") and JOHIM hereby agrees to manage and administer the
Portfolio. The appointment will commence on the date on which this
Agreement is delivered to JOHIM by the Client having been signed first by
the Client then by JOHIM. The assets comprising the Portfolio and their
opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule II.
Such policy shall be subject to the guidelines and restrictions set out
in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise agreed between
the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder to
an extent which is not material in the context of the Portfolio taken as
a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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 JOHIM's
management (or in a fund, company, trust or Collective Investment Scheme
connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where the
Client so requests by notice in writing to JOHIM, registerable
investments will be registered in the name of an Eligible Custodian
situated outside the United Kingdom and nominated by JOHIM.
(c) All documents of title (including those in bearer form) will be
retained in the custody of an Eligible Custodian nominated by JOHIM
and situated in the United Kingdom or overseas as applicable.
(d) None of the Eligible Custodians as aforesaid shall be Associates of
JOHIM. However, the Client's registerable investments may at any time
be registered in the name of a nominee company which is an Associate
of JOHIM and Client's documents of title may be held by that
Associate at any time after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject to
paragraphs 5 and 6, JOHIM 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
JOHIM. 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 JOHIM
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 (as set out in
Schedule III). The interest will be paid quarterly and will be
credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's behalf
will be credited to this account and held there until the relevant
settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the Portfolio
will be credited to this account. Balances on the account will be
paid away quarterly in accordance with the Client's instructions or,
in the absence of such instructions, will be transferred quarterly to
the Capital Account as soon as reasonably practicable after the last
day of each such quarter being 5th April, 30th June, 5th October and
31st December in each year. Money drawn on behalf of the Client from
the account shall not exceed the total of money held in the account
on behalf of the Client at that time. Interest will not be paid on
monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the Client
notifies JOHIM in writing that the Client wishes cash in the
Portfolio to be held outside the United Kingdom, JOHIM 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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to the
transactions effected by JOHIM on the Client's behalf and those records
will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address, and
that JOHIM will not be responsible for any consequences which may arise
from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall be
prepared as at such half yearly dates as shall be agreed between JOHIM
and the Client from time to time (each such date being referred to as a
"Valuation Date"), and JOHIM will send such six monthly 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 JOHIM (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 JOHIM 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 JOHIM or such other
person selected by JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of the
period beginning with first receipt by JOHIM 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 JOHIM on the l4th day after
despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses or
liabilities which it may incur in properly carrying out its duties
hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day basis,
so that, if this Agreement commences or terminates other than on a
Valuation Date (as defined in paragraph 24), the amount of the fee shall
be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client on
purchases and sales of investments together with all expenses including
stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The
Client recognizes that JOHIM may gain a commission benefit from dealing
in a bulk purchase or sale on behalf of JOHIM's clients, one of whom may
be the Client, or from return commissions which benefit JOHIM shall be
entitled to retain. JOHIM 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 JOHIM in connection with transactions effected by JOHIM 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 JOHIM undertakes to secure for the
Client best execution of all transactions affected with or through a
party from whom JOHIM receives such benefits and commissions,
disregarding any benefit which the Client might obtain directly or
indirectly as a result of such arrangements.
31. JOHIM 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 without 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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be liable
to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHIM or any dishonesty of
employees of JOHIM.
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 JOHIM's
inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for all matters
so delegated shall not be affected thereby. JOHIM shall give to the
Client written notice of any delegation of a function which involves the
exercise of its discretionary investment management powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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 JOHIM, JOHIM 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 JOHIM may charge the
Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding to that
part of the period ending on a Valuation Date by reference to which
fees are payable, which has expired when this Agreement is
terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to
the benefit of the survivor(s) unless otherwise specified by notice in
writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the United Kingdom and
of notice served upon the Client at an address within the United Kingdom
the notice shall be sufficiently served if served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about any
service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or to
a Senior Investment Manager who was not involved in the circumstances
relating to the complaint and who will investigate such circumstances.
Upon the conclusion of this investigation he shall make a written report
to the Client and take any action he deems necessary to rectify the
matter which is the subject of the complaint. The Client has the right to
refer any complaint to IMRO if the Client is not satisfied with the
action taken by the Chief Executive or Senior Investment Manager, and in
any event has the right to make the complaint direct to IMRO or the
Investment Ombudsman without prior reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on or
effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts referred to in
paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
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)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the
0.3% per annum on the next (pound)1,500,000 ) first (pound)2,500,000
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to 0.5% on transactions up to
(pound)10,000 (pound)10,000
0.50% thereafter 0.25% on the next (pound)40,000
0.125% thereafter
(Minimum commissions (pound)30 per contract)
All transactions are subject to a handling
charge of (pound)12.50 per transaction in
the case of UK registered securities
((pound)20 for non-UK registered
securities)
<PAGE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
September 30th, 1994 Date /s/ David F. Chaplin
- -------------------------------------------- -------------------------------
FOR THE CLIENT*
10/10/94 Date /s/ Lord King
- -------------------------------------------- -------------------------------
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(M)
CLIENT AGREEMENT
MRS. CAMILLA STACPOOLE
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 3RD DAY OF MARCH, 1993.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) MRS. CAMILLA STACPOOLE (portfolio name)
(the "Client")
of
c/o Doctor Camilla Poste Restarante
Castaguola 697th, Luigauo, Switzerland
(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 JOHIM 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 JOHIM
(the "Portfolio") and JOHIM hereby agrees to manage and administer the
Portfolio. The appointment will commence on the date on which this
Agreement is delivered to JOHIM by the Client having been signed first by
the Client then by JOHIM. The assets comprising the Portfolio and their
opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule II.
Such policy shall be subject to the guidelines and restrictions set out
in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise agreed between
the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder to
an extent which is not material in the context of the Portfolio taken as
a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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 JOHIM's
management (or in a fund, company, trust or Collective Investment Scheme
connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where the
Client so requests by notice in writing to JOHIM, registerable
investments will be registered in the name of an Eligible Custodian
situated outside the United Kingdom and nominated by JOHIM.
(c) All documents of title (including those in bearer form) will be
retained in the custody of an Eligible Custodian nominated by JOHIM
and situated in the United Kingdom or overseas as applicable.
(d) None of the Eligible Custodians as aforesaid shall be Associates of
JOHIM. However, the Client's registerable investments may at any time
be registered in the name of a nominee company which is an Associate
of JOHIM and Client's documents of title may be held by that
Associate at any time after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject to
paragraphs 5 and 6, JOHIM 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
JOHIM. 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 JOHIM
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 (as set out in
Schedule III). The interest will be paid quarterly and will be
credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's behalf
will be credited to this account and held there until the relevant
settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the Portfolio
will be credited to this account. Balances on the account will be
paid away quarterly in accordance with the Client's instructions or,
in the absence of such instructions, will be transferred quarterly to
the Capital Account as soon as reasonably practicable after the last
day of each such quarter being 5th April, 30th June, 5th October and
31st December in each year. Money drawn on behalf of the Client from
the account shall not exceed the total of money held in the account
on behalf of the Client at that time. Interest will not be paid on
monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the Client
notifies JOHIM in writing that the Client wishes cash in the
Portfolio to be held outside the United Kingdom, JOHIM 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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to the
transactions effected by JOHIM on the Client's behalf and those records
will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address, and
that JOHIM will not be responsible for any consequences which may arise
from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall be
prepared as at such half yearly dates as shall be agreed between JOHIM
and the Client from time to time (each such date being referred to as a
"Valuation Date"), and JOHIM will send such six monthly 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 JOHIM (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 JOHIM 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 JOHIM or such other
person selected by JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of the
period beginning with first receipt by JOHIM 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 JOHIM on the l4th day after
despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses or
liabilities which it may incur in properly carrying out its duties
hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day basis,
so that, if this Agreement commences or terminates other than on a
Valuation Date (as defined in paragraph 24), the amount of the fee shall
be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client on
purchases and sales of investments together with all expenses including
stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The
Client recognizes that JOHIM may gain a commission benefit from dealing
in a bulk purchase or sale on behalf of JOHIM's clients, one of whom may
be the Client, or from return commissions which benefit JOHIM shall be
entitled to retain. JOHIM 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 JOHIM in connection with transactions effected by JOHIM 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 JOHIM undertakes to secure for the
Client best execution of all transactions affected with or through a
party from whom JOHIM receives such benefits and commissions,
disregarding any benefit which the Client might obtain directly or
indirectly as a result of such arrangements.
31. JOHIM 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 without 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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be liable
to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHIM or any dishonesty of
employees of JOHIM.
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 JOHIM's
inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for all matters
so delegated shall not be affected thereby. JOHIM shall give to the
Client written notice of any delegation of a function which involves the
exercise of its discretionary investment management powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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 JOHIM, JOHIM 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 JOHIM may charge the
Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding to that
part of the period ending on a Valuation Date by reference to which
fees are payable, which has expired when this Agreement is
terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to
the benefit of the survivor(s) unless otherwise specified by notice in
writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the United Kingdom and
of notice served upon the Client at an address within the United Kingdom
the notice shall be sufficiently served if served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about any
service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or to
a Senior Investment Manager who was not involved in the circumstances
relating to the complaint and who will investigate such circumstances.
Upon the conclusion of this investigation he shall make a written report
to the Client and take any action he deems necessary to rectify the
matter which is the subject of the complaint. The Client has the right to
refer any complaint to IMRO if the Client is not satisfied with the
action taken by the Chief Executive or Senior Investment Manager, and in
any event has the right to make the complaint direct to IMRO or the
Investment Ombudsman without prior reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on or
effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts referred to in
paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
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)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first
(pound)2,500,000
0.3% per annum on the next (pound)1,500,000)
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to
(pound)10,000 0.5% on transactions up to(pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
(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)
<PAGE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
3/3/93 Date /s/ John Anderson
- ----------------------------------------- ----------------------------
FOR THE CLIENT*
3/3/93 Date /s/ Camilla Stacpoole
- ----------------------------------------- ----------------------------
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(N)
CLIENT AGREEMENT
INTREPID INTERNATIONAL LIMITED
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 17TH DAY OF JUNE, 1994.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) INTREPID INTERNATIONAL LIMITED (portfolio name)
(the "Client")
of
2-6 Church Street, St. Helier,
---------------------------------------------------
Jersey Channel Islands
----------------------
(address)
NOW IT IS HEREBY AGREED as follows:
APPOINTMENT AND STATUS OF CLIENT
1. The Client, a Private Customer as defined in the Rules of IMRO, hereby
appoints JOHIM 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 JOHIM
(the "Portfolio") and JOHIM hereby agrees to manage and administer the
Portfolio. The appointment will commence on the date on which this
Agreement is delivered to JOHIM by the Client having been signed first by
the Client then by JOHIM. The assets comprising the Portfolio and their
opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule II.
Such policy shall be subject to the guidelines and restrictions set out
in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise agreed between
the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder to
an extent which is not material in the context of the Portfolio taken as
a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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 JOHIM's
management (or in a fund, company, trust or Collective Investment Scheme
connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where the
Client so requests by notice in writing to JOHIM, registerable
investments will be registered in the name of an Eligible Custodian
situated outside the United Kingdom and nominated by JOHIM.
(c) All documents of title (including those in bearer form) will be
retained in the custody of an Eligible Custodian nominated by JOHIM
and situated in the United Kingdom or overseas as applicable.
(d) None of the Eligible Custodians as aforesaid shall be Associates of
JOHIM. However, the Client's registerable investments may at any time
be registered in the name of a nominee company which is an Associate
of JOHIM and Client's documents of title may be held by that
Associate at any time after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject to
paragraphs 5 and 6, JOHIM 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
JOHIM. 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 JOHIM
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 (as set out in
Schedule III). The interest will be paid quarterly and will be
credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's behalf
will be credited to this account and held there until the relevant
settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the Portfolio
will be credited to this account. Balances on the account will be
paid away quarterly in accordance with the Client's instructions or,
in the absence of such instructions, will be transferred quarterly to
the Capital Account as soon as reasonably practicable after the last
day of each such quarter being 5th April, 30th June, 5th October and
31st December in each year. Money drawn on behalf of the Client from
the account shall not exceed the total of money held in the account
on behalf of the Client at that time. Interest will not be paid on
monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the Client
notifies JOHIM in writing that the Client wishes cash in the
Portfolio to be held outside the United Kingdom, JOHIM 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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to the
transactions effected by JOHIM on the Client's behalf and those records
will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address, and
that JOHIM will not be responsible for any consequences which may arise
from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall be
prepared as at such half yearly dates as shall be agreed between JOHIM
and the Client from time to time (each such date being referred to as a
"Valuation Date"), and JOHIM will send such six monthly 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 JOHIM (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 JOHIM 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 JOHIM or such other
person selected by JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of the
period beginning with first receipt by JOHIM 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 JOHIM on the l4th day after
despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses or
liabilities which it may incur in properly carrying out its duties
hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day basis,
so that, if this Agreement commences or terminates other than on a
Valuation Date (as defined in paragraph 24), the amount of the fee shall
be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client on
purchases and sales of investments together with all expenses including
stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The
Client recognizes that JOHIM may gain a commission benefit from dealing
in a bulk purchase or sale on behalf of JOHIM's clients, one of whom may
be the Client, or from return commissions which benefit JOHIM shall be
entitled to retain. JOHIM 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 JOHIM in connection with transactions effected by JOHIM 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 JOHIM undertakes to secure for the
Client best execution of all transactions affected with or through a
party from whom JOHIM receives such benefits and commissions,
disregarding any benefit which the Client might obtain directly or
indirectly as a result of such arrangements.
31. JOHIM 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 without 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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be liable
to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHIM or any dishonesty of
employees of JOHIM.
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 JOHIM's
inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for all matters
so delegated shall not be affected thereby. JOHIM shall give to the
Client written notice of any delegation of a function which involves the
exercise of its discretionary investment management powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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 JOHIM, JOHIM 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 JOHIM may charge the
Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding to that
part of the period ending on a Valuation Date by reference to which
fees are payable, which has expired when this Agreement is
terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to
the benefit of the survivor(s) unless otherwise specified by notice in
writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the United Kingdom and
of notice served upon the Client at an address within the United Kingdom
the notice shall be sufficiently served if served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about any
service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or to
a Senior Investment Manager who was not involved in the circumstances
relating to the complaint and who will investigate such circumstances.
Upon the conclusion of this investigation he shall make a written report
to the Client and take any action he deems necessary to rectify the
matter which is the subject of the complaint. The Client has the right to
refer any complaint to IMRO if the Client is not satisfied with the
action taken by the Chief Executive or Senior Investment Manager, and in
any event has the right to make the complaint direct to IMRO or the
Investment Ombudsman without prior reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on or
effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts referred to in
paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
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)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the
first (pound)2,500,000
0.3% per annum on the next pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to (pound)10,000 0.5% on transactions up to
(pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
(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)
<PAGE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
2nd June 1994 Date /s/ John Anderson
- ------------------------------- ---------------------
FOR THE CLIENT*
17th June 1994 Date /s/ Mr. GT Corrigan
- ------------------------------- ----------------------------------
Director
/s/ Mr. RJ Guillaume
- ------------------------- ----------------------------------
Director
/s/ Miss SMJ Ford
- ------------------------- ----------------------------------
Director
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(O)
CLIENT AGREEMENT
ABACUS (C.I.) LIMITED - T975
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 1ST DAY OF MAY, 1996.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) ABACUS (C.I.) LIMITED - T975 (portfolio name)
(the "Client") TRS. of the Tilco Trust of
Abacus (C.I.) Limited, LaMotte
-------------------------------------
Chambers, La Motte Street, St. Helier
-------------------------------------
Jersey JEL IBJ
-------------------------------------
(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 JOHIM 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 JOHIM
(the "Portfolio") and JOHIM hereby agrees to manage and administer the
Portfolio. The appointment will commence on the date on which this
Agreement is delivered to JOHIM by the Client having been signed first by
the Client then by JOHIM. The assets comprising the Portfolio and their
opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule II.
Such policy shall be subject to the guidelines and restrictions set out
in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise agreed between
the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder to
an extent which is not material in the context of the Portfolio taken as
a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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 JOHIM's
management (or in a fund, company, trust or Collective Investment Scheme
connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where the
Client so requests by notice in writing to JOHIM, registerable
investments will be registered in the name of an Eligible Custodian
situated outside the United Kingdom and nominated by JOHIM.
(c) All documents of title (including those in bearer form) will be
retained in the custody of an Eligible Custodian nominated by JOHIM
and situated in the United Kingdom or overseas as applicable.
(d) None of the Eligible Custodians as aforesaid shall be Associates of
JOHIM. However, the Client's registerable investments may at any time
be registered in the name of a nominee company which is an Associate
of JOHIM and Client's documents of title may be held by that
Associate at any time after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject to
paragraphs 5 and 6, JOHIM 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
JOHIM. 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 JOHIM
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 (as set out in
Schedule III). The interest will be paid quarterly and will be
credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's behalf
will be credited to this account and held there until the relevant
settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the Portfolio
will be credited to this account. Balances on the account will be
paid away quarterly in accordance with the Client's instructions or,
in the absence of such instructions, will be transferred quarterly to
the Capital Account as soon as reasonably practicable after the last
day of each such quarter being 5th April, 30th June, 5th October and
31st December in each year. Money drawn on behalf of the Client from
the account shall not exceed the total of money held in the account
on behalf of the Client at that time. Interest will not be paid on
monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the Client
notifies JOHIM in writing that the Client wishes cash in the
Portfolio to be held outside the United Kingdom, JOHIM 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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to the
transactions effected by JOHIM on the Client's behalf and those records
will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address, and
that JOHIM will not be responsible for any consequences which may arise
from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall be
prepared as at such half yearly dates as shall be agreed between JOHIM
and the Client from time to time (each such date being referred to as a
"Valuation Date"), and JOHIM will send such six monthly 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 JOHIM (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 JOHIM 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 JOHIM or such other
person selected by JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of the
period beginning with first receipt by JOHIM 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 JOHIM on the l4th day after
despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses or
liabilities which it may incur in properly carrying out its duties
hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day basis,
so that, if this Agreement commences or terminates other than on a
Valuation Date (as defined in paragraph 24), the amount of the fee shall
be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client on
purchases and sales of investments together with all expenses including
stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The
Client recognizes that JOHIM may gain a commission benefit from dealing
in a bulk purchase or sale on behalf of JOHIM's clients, one of whom may
be the Client, or from return commissions which benefit JOHIM shall be
entitled to retain. JOHIM 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 JOHIM in connection with transactions effected by JOHIM 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 JOHIM undertakes to secure for the
Client best execution of all transactions affected with or through a
party from whom JOHIM receives such benefits and commissions,
disregarding any benefit which the Client might obtain directly or
indirectly as a result of such arrangements.
31. JOHIM 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 without 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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be liable
to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHIM or any dishonesty of
employees of JOHIM.
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 JOHIM's
inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for all matters
so delegated shall not be affected thereby. JOHIM shall give to the
Client written notice of any delegation of a function which involves the
exercise of its discretionary investment management powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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 JOHIM, JOHIM 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 JOHIM may charge the
Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding to that
part of the period ending on a Valuation Date by reference to which
fees are payable, which has expired when this Agreement is
terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to
the benefit of the survivor(s) unless otherwise specified by notice in
writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the United Kingdom and
of notice served upon the Client at an address within the United Kingdom
the notice shall be sufficiently served if served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about any
service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or to
a Senior Investment Manager who was not involved in the circumstances
relating to the complaint and who will investigate such circumstances.
Upon the conclusion of this investigation he shall make a written report
to the Client and take any action he deems necessary to rectify the
matter which is the subject of the complaint. The Client has the right to
refer any complaint to IMRO if the Client is not satisfied with the
action taken by the Chief Executive or Senior Investment Manager, and in
any event has the right to make the complaint direct to IMRO or the
Investment Ombudsman without prior reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on or
effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts referred to in
paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
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)500,000 )
0.6% per annum on the next(pound)500,000 ) Equivalent to 0.5% on the
0.3% per annum on the next(pound)1,500,000 ) first(pound)2,500,000
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to (pound)10,000 0.5% on transactions up to
(pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
(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)
<PAGE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
29th April 1996 Date /s/ John Anderson
- ----------------------------------------------- ------------------
FOR THE CLIENT*
1st May 1996 Date /s/ N. R. Rathbone
- ------------------------------------------------ -------------------
Director
/s/ E. Sawory
- -------------------------------------------- ---------------------
Authorised Signatory
- --------------------------------------------
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(P)
CLIENT AGREEMENT
AURIGEST LIMITED
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) AURIGEST LIMITED (portfolio name)
(the "Client")
of
V-L 9490 Vadue,
-------------------------------------------------
Liechtenstein
-------------
(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 JOHIM 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 JOHIM
(the "Portfolio") and JOHIM hereby agrees to manage and administer the
Portfolio. The appointment will commence on the date on which this
Agreement is delivered to JOHIM by the Client having been signed first by
the Client then by JOHIM. The assets comprising the Portfolio and their
opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule II.
Such policy shall be subject to the guidelines and restrictions set out
in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise agreed between
the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder to
an extent which is not material in the context of the Portfolio taken as
a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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 JOHIM's
management (or in a fund, company, trust or Collective Investment Scheme
connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where the
Client so requests by notice in writing to JOHIM, registerable
investments will be registered in the name of an Eligible Custodian
situated outside the United Kingdom and nominated by JOHIM.
(c) All documents of title (including those in bearer form) will be
retained in the custody of an Eligible Custodian nominated by JOHIM
and situated in the United Kingdom or overseas as applicable.
(d) None of the Eligible Custodians as aforesaid shall be Associates of
JOHIM. However, the Client's registerable investments may at any time
be registered in the name of a nominee company which is an Associate
of JOHIM and Client's documents of title may be held by that
Associate at any time after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject to
paragraphs 5 and 6, JOHIM 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
JOHIM. 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 JOHIM
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 (as set out in
Schedule III). The interest will be paid quarterly and will be
credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's behalf
will be credited to this account and held there until the relevant
settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the Portfolio
will be credited to this account. Balances on the account will be
paid away quarterly in accordance with the Client's instructions or,
in the absence of such instructions, will be transferred quarterly to
the Capital Account as soon as reasonably practicable after the last
day of each such quarter being 5th April, 30th June, 5th October and
31st December in each year. Money drawn on behalf of the Client from
the account shall not exceed the total of money held in the account
on behalf of the Client at that time. Interest will not be paid on
monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the Client
notifies JOHIM in writing that the Client wishes cash in the
Portfolio to be held outside the United Kingdom, JOHIM 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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to the
transactions effected by JOHIM on the Client's behalf and those records
will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address, and
that JOHIM will not be responsible for any consequences which may arise
from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall be
prepared as at such half yearly dates as shall be agreed between JOHIM
and the Client from time to time (each such date being referred to as a
"Valuation Date"), and JOHIM will send such six monthly 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 JOHIM (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 JOHIM 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 JOHIM or such other
person selected by JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of the
period beginning with first receipt by JOHIM 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 JOHIM on the l4th day after
despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses or
liabilities which it may incur in properly carrying out its duties
hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day basis,
so that, if this Agreement commences or terminates other than on a
Valuation Date (as defined in paragraph 24), the amount of the fee shall
be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client on
purchases and sales of investments together with all expenses including
stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The
Client recognizes that JOHIM may gain a commission benefit from dealing
in a bulk purchase or sale on behalf of JOHIM's clients, one of whom may
be the Client, or from return commissions which benefit JOHIM shall be
entitled to retain. JOHIM 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 JOHIM in connection with transactions effected by JOHIM 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 JOHIM undertakes to secure for the
Client best execution of all transactions affected with or through a
party from whom JOHIM receives such benefits and commissions,
disregarding any benefit which the Client might obtain directly or
indirectly as a result of such arrangements.
31. JOHIM 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 without 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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be liable
to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the Client
against losses arising from any negligence of JOHIM or any dishonesty of
employees of JOHIM.
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 JOHIM's
inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for all matters
so delegated shall not be affected thereby. JOHIM shall give to the
Client written notice of any delegation of a function which involves the
exercise of its discretionary investment management powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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 JOHIM, JOHIM 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 JOHIM may charge the
Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding to that
part of the period ending on a Valuation Date by reference to which
fees are payable, which has expired when this Agreement is
terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to
the benefit of the survivor(s) unless otherwise specified by notice in
writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the United Kingdom and
of notice served upon the Client at an address within the United Kingdom
the notice shall be sufficiently served if served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about any
service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or to
a Senior Investment Manager who was not involved in the circumstances
relating to the complaint and who will investigate such circumstances.
Upon the conclusion of this investigation he shall make a written report
to the Client and take any action he deems necessary to rectify the
matter which is the subject of the complaint. The Client has the right to
refer any complaint to IMRO if the Client is not satisfied with the
action taken by the Chief Executive or Senior Investment Manager, and in
any event has the right to make the complaint direct to IMRO or the
Investment Ombudsman without prior reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on or
effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts referred to in
paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
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)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the
first(pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST
1.25% on transactions up to
(pound)10,000 0.5% on transactions up to(pound)10,000
0.50% thereafter 0.25% on the next(pound)40,000
0.125% thereafter
(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)
<PAGE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
25.1.89 Date /s/ John Anderson
- ------------------------------------ -------------------------------
FOR THE CLIENT*
April 2, 1990 Date /s/ D. Danfiley
- ------------------------------------ -------------------------------
- ---------------------------- -------------------------------
- ----------------------------
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(Q)
CLIENT AGREEMENT
C.H.A. BUTTER ESQ.
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 19TH DAY OF SEPT., 1995.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) C.H.A. Butter Esq. (portfolio name)
(the "Client")
of
12 Pelham Crescent,
------------------------------------------------------------
London SW7 2NP
--------------
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first (pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
<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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
</TABLE>
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
19/9/95 Date /s/ William van Straubenzee
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
19/9/95 Date /s/ C. Butter
- -------------------------------------------- ------------------------------
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(R)
CLIENT AGREEMENT
TIM FANE
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 10TH DAY OF JULY, 1992.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) TIM FANE (portfolio name)
(the "Client")
of
------------------------------------------------------------
Blackdown House, Upham,
Hants SO3 IHS
------------------
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first (pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
<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>
<PAGE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
July 9th 1992 Date /s/ Lord Balniel
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
10/7/94 Date /s/ Tim Fane
- -------------------------------------------- ------------------------------
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(S)
CLIENT AGREEMENT
H.B. BARLOW 1964 SETTLEMENT "A" FOR REBECCA
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 29TH DAY OF SEPT., 1995.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) H.B. BARLOW'S 1964 SETTLEMENT "A" FOR REBECCA (portfolio name)
(the "Client")
of
------------------------------------------------------------
c/o Bircham & Co., 1 Dean Farrer Street,
London SWIH ODY
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first (pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
<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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
</TABLE>
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
29.9.95 Date /s/ Lord Balniel
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
5.10.95 Date /s/ M.H.
- -------------------------------------------- ------------------------------
/s/ Rebecca Barlow
- -------------------------------------------- ------------------------------
- --------------------------------------------
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(T)
CLIENT AGREEMENT
H.B. BARLOW'S 1964 SETTLEMENT "C" FOR NAOMI
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 21ST DAY OF SEPTEMBER, 1995.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) H.B. BARLOW'S 1964 SETTLEMENT "C" FOR Naomi (portfolio name)
(the "Client")
of
c/o Bircham & Co., 1 Dean Farrer Street
------------------------------------------------------------
London, SWIH ODY
-----------------
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first (pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
<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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
</TABLE>
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
29.9.95 Date /s/ Lord Balniel
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
15.11.95 Date /s/ M. H.
- -------------------------------------------- ------------------------------
/s/ Naomi Salaman
- -------------------------------------------- ------------------------------
- --------------------------------------------
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(U)
CLIENT AGREEMENT
H.B. BARLOW'S 1964 SETTLEMENT "D" FOR EMILY
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 26TH DAY OF OCTOBER, 1995.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) H.B. BARLOW'S 1964 SETTLEMENT "D" FOR EMILY (portfolio name)
(the "Client")
of
c/o Bircham & Co., 1 Dean Farrer Street
London, SWIH ODY
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first(pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
<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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
</TABLE>
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
21.9.95 Date /s/ Lord Balniel
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
October 26th 1995 Date /s/ M. H.
- -------------------------------------------- ------------------------------
/s/ Emily Gould
- -------------------------------------------- ------------------------------
- --------------------------------------------
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(V)
CLIENT AGREEMENT
MRS. M.R. HAMBRO CAPITAL ACCOUNT
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 20TH DAY OF SEPT., 1995.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) MRS. M.R. HAMBRO CAPITAL ACCOUNT (portfolio name)
(the "Client")
of
186 Ebury Street
------------------------------------------------------------
London, SWIW 8UP
-----------------
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first(pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
<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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
</TABLE>
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
20.9.95 Date /s/ William Francklin
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
20.9.95 Date /s/ M. R. Hambro
- -------------------------------------------- ------------------------------
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(W)
CLIENT AGREEMENT
FIFE LIMITED
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 25TH DAY OF AUGUST, 1995.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) FIFE LIMITED-SUB ACC NO. 905 (portfolio name)
(the "Client")
of
The Bank of Nova Scotia Trust Company (Bahamas) Ltd.
------------------------------------------------------------
P. O. Box N3016 Nassau Bahamas
------------------------------
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first (pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
<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>
<PAGE>
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
August 25th, 1995 Date /s/ David F. Chaplin
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
August 25, 1995 Date /s/ Howard Holst
- -------------------------------------------- ------------------------------
V.P. & Director
/s/ Peter N. Turnquest
- -------------------------------------------- ------------------------------
Treasurer & Director
- --------------------------------------------
*The Client should sign here as follows.
AN INDIVIDUAL OR INDIVIDUALS
The Individual should sign his/her usual signature and insert the date. Where
the Client is a joint account all persons named in the joint account should
sign.
A COMPANY.
The Company's duly authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(X)
CLIENT AGREEMENT
THE JERWOOD FOUNDATION
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 31ST DAY OF JANUARY, 1996.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) THE JERWOOD FOUNDATION (portfolio name)
(the "Client")
of
Meiligkreuz 6, Postfach 484,
------------------------------------------------------------
FL-9490 Vaduz, Liechtenstein
-------------------------------
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf.
Stabilisation is a process whereby the market price of a security is pegged or
fixed during the period in which a new issue of securities is sold to the
public. Stabilisation may take place in the new issue or in other securities
related to the new issue in such a way that the price of the other securities
may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first (pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
<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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
</TABLE>
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
18th January 1996 Date /s/ William Francklin
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
January 31, 1996 Date /s/ Alan Culin
- -------------------------------------------- ------------------------------
V.P. & Director
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(Y)
CLIENT AGREEMENT
RENSID INVESTMENTS LIMITED
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 31ST DAY OF JANUARY, 1996.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) RENSID INVESTMENTS LIMITED (portfolio name)
(the "Client")
of
Wickhams Cay, Road Town
-------------------------------------------
Tortola, British Virgin Islands
-------------------------------
(address)
NOW IT IS HEREBY AGREED as follows:
APPOINTMENT AND STATUS OF CLIENT
1. The Client, a Private Customer as defined in the Rules of IMRO, hereby
appoints JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf. Stabilisation is a process whereby the market price of
a security is pegged or fixed during the period in which a new issue of
securities is sold to the public. Stabilisation may take place in the new issue
or in other securities related to the new issue in such a way that the price of
the other securities may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first(pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
COMMISSION RATES
<CAPTION>
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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
</TABLE>
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
18th January 1996 Date /s/ William Francklin
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
January 31, 1996 Date /s/ Alan Arbor
- -------------------------------------------- ------------------------------
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(Z)
CLIENT AGREEMENT
ROBIN KELTON
<PAGE>
J O HAMBRO INVESTMENT MANAGEMENT
REGULATED BY IMRO IN THE CONDUCT OF INVESTMENT BUSINESS
THIS INVESTMENT MANAGEMENT AGREEMENT IS MADE THE 8TH DAY OF JUNE, 1995.
BETWEEN:
(1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") 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) ROBIN KELTON (portfolio name)
(the "Client")
of
Longparish House, Longparish N. Andover
---------------------------------------------------
Hants SP11 6QE
---------------
(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 JOHIM 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 JOHIM (the "Portfolio") and JOHIM hereby agrees to manage
and administer the Portfolio. The appointment will commence on the date
on which this Agreement is delivered to JOHIM by the Client having been
signed first by the Client then by JOHIM. The assets comprising the
Portfolio and their opening value are set out in Schedule I.
MANAGEMENT OF INVESTMENTS
2. JOHIM 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 JOHIM and the Client and set out in Part I of Schedule
II. Such policy shall be subject to the guidelines and restrictions set
out in Part II of Schedule II and to any guidelines, restrictions and
instructions specified in writing from time to time by the Client or by
the Client's duly authorized agent (written notice of whose authority
shall have been received by JOHIM). The Client's attention is
specifically drawn to the warnings set out in Part III of Schedule II.
3. JOHIM 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. In effecting transactions for the Portfolio JOHIM 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 JOHIM 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 JOHIM to a third party except as otherwise
agreed between the Client and JOHIM.
6. JOHIM 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 JOHIM's duties hereunder
to an extent which is not material in the context of the Portfolio
taken as a whole. JOHIM 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. JOHIM shall only commit the Client to any obligation to underwrite any
issue or offer for sale of securities with the Client's prior written
consent.
8. JOHIM may act as principal in any transaction for the Client provided
that JOHIM shall secure for the Client best execution of such
transaction.
9. Subject to the IMRO Rules, JOHIM may, without prior reference to the
Client, enter into a transaction on behalf of more than one client
collectively.
10. JOHIM 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, JOHIM shall not undertake any
transactions on the Client's behalf in which JOHIM has directly or
indirectly a material interest nor have any relationship with another
party which may involve a conflict with JOHIM'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 JOHIM during the preceding twelve
months.
13. The Client understands that JOHIM's directors or staff may from time to
time hold shares or securities including holdings that may be in the
Portfolio, and that JOHIM'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 JOHIM 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
JOHIM's management (or in a fund, company, trust or Collective
Investment Scheme connected with JOHIM) if JOHIM 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 JOHIM 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 JOHIM.
(b) In those cases where the Client is situated overseas or where
the Client so requests by notice in writing to JOHIM,
registerable investments will be registered in the name of an
Eligible Custodian situated outside the United Kingdom and
nominated by JOHIM.
(c) All documents of title (including those in bearer form) will
be retained in the custody of an Eligible Custodian nominated
by JOHIM and situated in the United Kingdom or overseas as
applicable.
(d) None of the Eligible Custodians as aforesaid shall be
Associates of JOHIM. However, the Client's registerable
investments may at any time be registered in the name of a
nominee company which is an Associate of JOHIM and Client's
documents of title may be held by that Associate at any time
after JOHIM 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 JOHIM. Such Client accounts will cover
all Clients of JOHIM.
(a) INVESTMENT ACCOUNT
The Client's investments will be held in this account. Subject
to paragraphs 5 and 6, JOHIM 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 JOHIM. 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 JOHIM 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 (as set
out in Schedule III). The interest will be paid quarterly and
will be credited to the Income Account on the Client's behalf.
(c) SETTLEMENT ACCOUNT
Money debited to the Capital Account in respect of the cost of
purchases made on the Client's behalf and money received and
receivable upon settlement of each sale made on the Client's
behalf will be credited to this account and held there until
the relevant settlement date.
(d) INCOME ACCOUNT
Dividends and interest received on investments within the
Portfolio will be credited to this account. Balances on the
account will be paid away quarterly in accordance with the
Client's instructions or, in the absence of such instructions,
will be transferred quarterly to the Capital Account as soon
as reasonably practicable after the last day of each such
quarter being 5th April, 30th June, 5th October and 31st
December in each year. Money drawn on behalf of the Client
from the account shall not exceed the total of money held in
the account on behalf of the Client at that time. Interest
will not be paid on monies held in this account.
(e) OFF-SHORE FUNDS
In those cases where the Client is situated overseas or if the
Client notifies JOHIM in writing that the Client wishes cash
in the Portfolio to be held outside the United Kingdom, JOHIM
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 JOHIM 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. JOHIM 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 JOHIM, 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. JOHIM 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 JOHIM or to which JOHIM has access relating to
the transactions effected by JOHIM on the Client's behalf and those
records will be maintained by JOHIM or JOHIM 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 JOHIM in writing of any change of address,
and that JOHIM will not be responsible for any consequences which may
arise from failure to do so.
REVIEWS AND VALUATIONS
24. JOHIM will prepare six monthly 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. Such reviews shall
be prepared as at such half yearly dates as shall be agreed between
JOHIM and the Client from time to time (each such date being referred
to as a "Valuation Date"), and JOHIM will send such six monthly 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 JOHIM
(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 JOHIM 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 JOHIM or such other person selected by
JOHIM) as shall in JOHIM's opinion be fair.
26. JOHIM 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. JOHIM 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. JOHIM 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 JOHIM in respect of
the period beginning with first receipt by JOHIM 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 JOHIM
on the l4th day after despatch of such invoice.
(d) In addition the Client shall reimburse JOHIM for any expenses
or liabilities which it may incur in properly carrying out its
duties hereunder.
29. The management fee shall be deemed to have accrued on a day-to-day
basis, so that, if this Agreement commences or terminates other than on
a Valuation Date (as defined in paragraph 24), the amount of the fee
shall be duly apportioned.
30. Commissions (as set out in Schedule III) will be payable by the Client
on purchases and sales of investments together with all expenses
including stamp duties, stamp duty reserve tax and VAT thereon (if
applicable). The Client recognizes that JOHIM may gain a commission
benefit from dealing in a bulk purchase or sale on behalf of JOHIM's
clients, one of whom may be the Client, or from return commissions
which benefit JOHIM shall be entitled to retain. JOHIM 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 JOHIM in connection with transactions
effected by JOHIM 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 JOHIM
undertakes to secure for the Client best execution of all transactions
affected with or through a party from whom JOHIM receives such benefits
and commissions, disregarding any benefit which the Client might obtain
directly or indirectly as a result of such arrangements.
31. JOHIM 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 without
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. JOHIM will indemnify the Client in respect of any loss incurred as a
result of negligence, wilful default or fraud by JOHIM or any of its
employees. Subject to the above, JOHIM 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 JOHIM; 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 JOHIM or any breach of JOHIM of any term of this
Agreement.
33. The Client agrees to indemnify and keep indemnified JOHIM from and
against all demands, claims, liabilities, losses, damages, costs and
expenses whatsoever incurred by JOHIM 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)
JOHIM 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 way whatsoever be
liable to the others for doing so.
35. JOHIM has effected insurance to provide for the protection of the
Client against losses arising from any negligence of JOHIM or any
dishonesty of employees of JOHIM.
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
JOHIM's inability to meet any liabilities to the Client. JOHIM 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. JOHIM 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 JOHIM's liability to the Client for
all matters so delegated shall not be affected thereby. JOHIM shall
give to the Client written notice of any delegation of a function which
involves the exercise of its discretionary investment management
powers.
38. JOHIM may employ agents (including Associates) to perform any
administrative, dealing, custodial and ancillary services required to
enable JOHIM to perform its services under this Agreement. JOHIM
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 JOHIM 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, JOHIM 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
JOHIM, JOHIM 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 JOHIM may
charge the Client an amount equal to:
(a) the relevant proportion of the management fee, corresponding
to that part of the period ending on a Valuation Date by
reference to which fees are payable, which has expired when
this Agreement is terminated;
(b) any additional expenses which JOHIM 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 JOHIM's
appointment; but JOHIM 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 inure to the benefit of the survivor(s) unless otherwise
specified by notice in writing to JOHIM.
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 JOHIM, 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.
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 service by the Client from within the
United Kingdom and of notice served upon the Client at an address
within the United Kingdom the notice shall be sufficiently served if
served by pre-paid letter.
53. If the Client makes a complaint to JOHIM verbally or in writing about
any service JOHIM has rendered to the Client under this Agreement the
complaint shall immediately be referred to JOHIM's Chief Executive or
to a Senior Investment Manager who was not involved in the
circumstances relating to the complaint and who will investigate such
circumstances. Upon the conclusion of this investigation he shall make
a written report to the Client and take any action he deems necessary
to rectify the matter which is the subject of the complaint. The Client
has the right to refer any complaint to IMRO if the Client is not
satisfied with the action taken by the Chief Executive or Senior
Investment Manager, and in any event has the right to make the
complaint direct to IMRO or the Investment Ombudsman without prior
reference to JOHIM.
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 JOHIM 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 JOHIM will not include advising on
or effecting Contingent Liability Transactions, nor will they 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 JOHIM 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 JOHIM on behalf of the Client in the accounts
referred to in paragraph 16 of this Agreement.
PART III - Risk Warnings and Risk Disclosure Statement
Investments Denominated in Foreign Currencies
If a liability of the Client in one currency is to be matched by an asset in a
different currency, or if JOHIM provides services under this Agreement relating
to an investment denominated in a foreign currency, a movement in exchange rates
may have an effect which may be either favorable or unfavorable on the
investment, which effect may be separate from the gain or loss otherwise
experienced on such investment.
Investments not readily realisable
Certain categories of investments comprised in the Portfolio may not be readily
realisable. You should be aware that there can be no certainty that market
makers or brokers will be prepared to deal in such investments and that proper
information for determining their current value may not be available.
Warrants
A warrant is a right to subscribe for shares, debentures, loan stock or
government securities, and is exercisable against the original issuer of the
securities. Warrants often involve a high degree of gearing so that a relatively
small movement in the price of the underlying security results in a
disproportionately large movement, unfavorable as well as favorable, in the
price of the warrant. The prices of warrants can therefore be volatile.
Stabilisation
This statement is made in compliance with Rule 14 of Chapter IV of the rules of
IMRO.
"We or our representatives may from time to time effect on your behalf or
recommend to you transactions in securities which are the subject of a recent
new issue where the price of those transactions may have been influenced by bids
made or transactions effected for the purpose of stabilising the price of those
securities. You should read the explanation below carefully. Its purpose is to
enable you to judge whether you wish your funds to be invested at all in such
securities, or, if so, whether you wish to authorize us generally to effect
transactions in such securities on your behalf without further reference to you
or whether you wish to be consulted before any particular transaction is
effected on your behalf. Stabilisation is a process whereby the market price of
a security is pegged or fixed during the period in which a new issue of
securities is sold to the public. Stabilisation may take place in the new issue
or in other securities related to the new issue in such a way that the price of
the other securities may affect the price of the new issue or vice versa.
The reason stabilisation is permitted is that when a new issue is brought to
market the sudden glut will sometimes force the price lower for a period of time
before buyers are found for the securities on offer.
As long as he obeys a strict set of rules the "stabilising manager", normally
the issuing house chiefly responsible for bringing a new issue to market, is
entitled to buy securities in the market that he has previously sold to
investors or allotted to institutions who were included in the new issue but who
have decided not to continue participating. The effect of this may be to keep
the price at a higher level than would otherwise be the case during the period
of stabilising.
The rules limit the period in which he may stabilise, fix the price at which he
may stabilize (in the case of shares and warrants but not bonds), and require
him to disclose that he may be (but not that he is) stabilising.
The fact that a new issue or a related security is being stabilized does not in
itself mean that investors are not interested in the issue, but neither should
the existence of transactions in an issue where stabilising may take place be
relied upon as an indication that investors are interested in the new issue or
interested in purchasing at the price at which transactions are taking place".
<PAGE>
SCHEDULE III
Scale Rates and Charges
MANAGEMENT FEES
To be levied six monthly
DISCRETIONARY PORTFOLIO SERVICE
<TABLE>
<C> <C>
1% per annum on portfolios of up to (pound)500,000 )
0.6% per annum on the next (pound)500,000 ) Equivalent to 0.5% on the first (pound)2,500,000
0.3% per annum on the next (pound)1,500,000 )
0.5% per annum on the next (pound)2,500,000
0.3% thereafter
(Subject to a minimum of (pound)1000 per annum per Portfolio)
COMMISSION RATES
<CAPTION>
EQUITIES GILTS/FIXED INTEREST
<C> <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)
VALUE ADDED TAX
This will be charged on the fees shown above at
the appropriate rates where applicable
INTEREST ON CAPITAL ACCOUNT
1.5% below Bank of Scotland base rate.
</TABLE>
<PAGE>
FOR J O HAMBRO INVESTMENT MANAGEMENT
7th June 1995 Date /s/ William Francklin
- -------------------------------------------- ------------------------------
FOR THE CLIENT*
June 8, 1995 Date /s/ Robin Kelton
- -------------------------------------------- ------------------------------
/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 authorized signature should sign and insert the date. Please
let JOHIM have a certified true copy of a Board resolution confirming the
appointment of JOHIM as investment manager and authorizing the signature of the
Agreement. Please provide an up-to-date copy of the Memorandum and Articles of
Association and the Certificate of Incorporation which will be returned.
A TRUST OR PENSION FUND.
All the trustees should sign and insert the date. Please let JOHIM have a copy
of the Trust Deed.
A PARTNERSHIP.
All the partners should sign and insert the date.
<PAGE>
EXHIBIT 99.(AA)
JOINT FILING AGREEMENT as of
July 25, 1996
<PAGE>
JOINT FILING AGREEMENT
The undersigned hereby agree that the Statement on Schedule 13-D dated July 26,
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: July 25, 1996 NORTH ATLANTIC SMALLER
COMPANIES INVESTMENT TRUST PLC
By J O Hambro & Partners Ltd, its
investment advisor
By:
/s/ Peter A Heaps
------------------------------
Name: Peter A. Heaps
Title: Director
Date: July 25, 1996 J O HAMBRO & PARTNERS LIMITED
By:
/s/ Claudia Perkins
------------------------------
Name: Claudia Perkins
Title: Director
Date: July 25, 1996 J O HAMBRO & COMPANY LIMITED
By:
/s/ Peter A Heaps
------------------------------
Name: Peter A. Heaps
Title: Director
Date: July 25, 1996 ORYX INTERNATIONAL GROWTH
FUND LIMITED
By: J O Hambro & Partners Limited, its
investment advisor
By:
/s/ Peter A Heaps
------------------------------
Name: Peter A. Heaps
Title: Director
Date: July 25, 1996 CONSULTA (CHANNEL ISLANDS) LTD
By:
/s/ P. Hicks
------------------------------
Name: P. Hicks
Title: Director
Date: July 25, 1996 GROWTH FINANCIAL SERVICES
LIMITED formerly GROWTH
INVESTMENT MANAGEMENT LIMITED
By:
/s/ Christopher Mills
------------------------------
Name: Christopher H.B. Mills
Title: Director
Date: July 25, 1996 CHRISTOPHER HARWOOD BERNARD
MILLS
/s/ Christopher Mills
------------------------------
Date: July 25, 1996 AMERICAN OPPORTUNITY TRUST PLC
By: J O Hambro & Partners Limited, its
investment advisor
By:
/s/ Peter A Heaps
------------------------------
Name: Peter A. Heaps
Title: Director
Date: July 25, 1996 J O HAMBRO INVESTMENT
MANAGEMENT LTD
By:
/s/ John Anderson
------------------------------
Name: John Anderson
Title: Director
Date: July 25, 1996 J O HAMBRO ASSET
MANAGEMENT LIMITED
/s/ R.C.O. Hellyer
------------------------------
Name: R.C.O. Hellyer
Title: Director
