-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HPiYa04uIW33pQ3IsexjG/4OnsJssEcgEb7SkobOATg696cvhkNt3ZqXn41MqWlW yXX0FFP3gr7oCG4WZp2FvA== 0000927016-98-001485.txt : 19980414 0000927016-98-001485.hdr.sgml : 19980414 ACCESSION NUMBER: 0000927016-98-001485 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 17 FILED AS OF DATE: 19980413 SROS: NASD GROUP MEMBERS: AMERICAN OPPORTUNITY TRUST PLC GROUP MEMBERS: CHRISTOPHER HARWOOD BERNARD MILLS GROUP MEMBERS: GROWTH FINANCIAL SERVICES LIMITED GROUP MEMBERS: HAMBRO J O & PARTNERS LTD GROUP MEMBERS: J O HAMBRO & COMPANY LIMITED GROUP MEMBERS: J O HAMBRO ASSET MANAGEMENT LIMITED GROUP MEMBERS: J O HAMBRO INVESTMENT MANAGEMENT LIMITED GROUP MEMBERS: NORTH ATLANTIC SMALLER COMPANIES INVESTMENT TRUST PLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MAXICARE HEALTH PLANS INC CENTRAL INDEX KEY: 0000722573 STANDARD INDUSTRIAL CLASSIFICATION: HOSPITAL & MEDICAL SERVICE PLANS [6324] IRS NUMBER: 953615709 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-35866 FILM NUMBER: 98592308 BUSINESS ADDRESS: STREET 1: 1149 S BROADWAY ST STREET 2: SUITE 910 CITY: LOS ANGELES STATE: CA ZIP: 90015 BUSINESS PHONE: 2137652000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HAMBRO J O & PARTNERS LTD CENTRAL INDEX KEY: 0000940755 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: X0 FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 10 PARK PLACE CITY: LONDON STATE: X0 MAIL ADDRESS: STREET 1: 10 PARK PLACE STREET 2: SW1A1LP CITY: LONDON STATE: X0 SC 13D 1 SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. )* MAXICARE HEALTH PLANS, INC. ________________________________________________________________ (Name of issuer) Common Stock, par value $.01 per share ________________________________________________________________ (Title of class of securities) 577904204 _____________________________ (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) April 2, 1998 _______________________________________________________ (Date of event which requires filing of this statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 258 Pages SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 577904204 PAGE 2 OF 258 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J O Hambro & Company Limited No S.S. or IRS Identification Number - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 England - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 559,050 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 559,050 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 559,050 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 3.1% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 HC, CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 577904204 PAGE 3 OF 258 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Growth Financial Services Limited No S.S. or IRS Identification Number - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 England - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 305,000 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 305,000 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 305,000 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 1.7% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 577904204 PAGE 4 OF 258 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON North Atlantic Smaller Companies Investment Trust plc No S.S. or IRS Identification Number - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 England - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 305,000 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 305,000 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 305,000 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 1.7% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 IV, CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 577904204 PAGE 5 OF 258 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Christopher Harwood Bernard Mills No S.S. or IRS Identification Number - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 England - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 480,200 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 480,200 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 480,200 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 2.7% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 IN - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 577904204 PAGE 6 OF 258 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J O Hambro Capital Management Limited No S.S. or IRS Identification Number - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 England - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 480,200 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 480,200 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 480,200 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 2.7% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 IA, CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 577904204 PAGE 7 OF 258 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J O Hambro Asset Management Limited No S.S. or IRS Identification Number - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 England - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 559,050 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 559,050 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 559,050 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 3.1% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 HC, CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 577904204 PAGE 8 OF 258 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J O Hambro Investment Management Limited No S.S. or IRS Identification Number - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 England - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 78,850 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 78,850 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 78,850 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 0.4% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 IA, CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 577904204 PAGE 9 OF 258 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON American Opportunity Trust plc No S.S. or IRS Identification Number - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 England - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 90,000 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 90,000 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 90,000 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 0.5% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 IV, CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! STATEMENT ON SCHEDULE 13D ------------------------- Item 1. Security and Issuer ------------------- This Statement on Schedule 13D relates to the Common Stock, par value $0.01 per share (the "Common Stock"), of Maxicare Health Plans, Inc., a Delaware corporation (the "Company"), which has its principal executive offices at 1149 South Broadway Street, Suite 910, Los Angeles, California 90015. Item 2. Identity and Background. ----------------------- 2 (a-c, f). I. Filing Parties: -------------- This Statement is filed on behalf of the following eight persons, who are collectively referred to as the "Filing Parties": 1. J O Hambro & 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 Capital Management and J O Hambro Investment Management. 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 Capital Management and J O Hambro Investment Management. 3. J O Hambro Capital Management Limited ("J O Hambro Capital 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 Capital Management 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 private clients. 4. Christopher Harwood Bernard Mills is a British citizen whose business address is 10 Park Place, London SW1A 1LP England. His principal employment is service as executive director of NASCIT and American Opportunity Trust, as a director of J O Hambro Capital Management, and as co-investment adviser to NASCIT and American Opportunity Trust. 5. Growth Financial Services Limited ("GFS"), formerly named Growth Investment Management Limited, is a corporation organized under the laws of England with its principal office at 77 Middle Street, Brockham, Surrey RH3 7HL England and with its principal business at 10 Park Place, London SW1A 1LP England. GFS has undertaken to provide the services of Christopher Mills to NASCIT. Page 10 of 258 Pages 6. North Atlantic Smaller Companies Investment Trust plc ("NASCIT"), formerly named Consolidated Venture Trust plc, is a corporation organized under the laws of England with its principal office and business at 10 Park Place, London SW1A 1LP England. NASCIT is a publicly-held investment trust company. Christopher Harwood Bernard Mills and J O Hambro Capital Management serve as co-investment advisers to NASCIT. 7. American Opportunity Trust plc ("American Opportunity Trust"), formerly named Leveraged Opportunity Trust plc, is a corporation organized under the laws of England with its principal office and business at 10 Park Place, London SW1A 1LP England. American Opportunity Trust is a publicly-held investment trust company. Christopher Harwood Bernard Mills and J O Hambro Capital Management serve as co-investment advisers to American Opportunity Trust. 8. J O Hambro Investment Management Limited ("J O Hambro Investment 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 Investment Management is principally engaged in the business of discretionary investment management of private client portfolios. II. Control Relationships: --------------------- J O Hambro Capital Management is a majority-owned subsidiary of J O Hambro Asset Management, which is a wholly-owned subsidiary of J O Hambro & Company. J O Hambro Investment Management is a majority-owned subsidiary of J O Hambro Asset Management, which is a wholly-owned subsidiary of J O Hambro & Company. Christopher Mills owns 99% of the equity of GFS, and serves as a director of J O Hambro Capital Management and as executive director of NASCIT and American Opportunity Trust. III. Executive Officers and Directors: -------------------------------- In accordance with the provisions of General Instruction C to Schedule 13D, information concerning the executive officers and directors of the Filing Parties is included in Schedule A hereto and is incorporated by reference herein. (d) Criminal Proceedings -------------------- During the last five years, neither the Filing Parties (or a controlling entity thereof) nor any executive officer or director of any of the Filing Parties (or a controlling entity thereof) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) Civil Securities Law Proceedings -------------------------------- During the last five years, neither the Filing Parties (or a controlling entity thereof) nor any executive officer or director of any of the Filing Parties (or a controlling entity thereof) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining Page 11 of 258 Pages future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- The Filing Parties used their working capital funds to purchase the shares of Common Stock of the Company (the "Shares") to which this statement relates. The amount of funds used to date to acquire the Shares is approximately $1,858,100 (exclusive of brokerage fees and commissions). Item 4. Purpose of Transaction. ---------------------- The Filing Parties acquired their holdings of the Common Stock because they believed that the Common Stock represented a favorable investment opportunity. The Filing Parties believe that the current market valuation of the Common Stock does not fully reflect the inherent value of the Company's business. The Filing Parties have come to believe that the policies followed by the Board of Directors (the "Board") in recent years have failed to maximize shareholder value and that current management of the Company has failed to capitalize on, or consider thoroughly, potential opportunities to enhance shareholder value through, among other options, a business combination or sale of the Company or its assets. Therefore, to seek to enhance shareholder value, the Filing Parties intend to support Mr. Paul R. Dupee, Jr. (the "Soliciting Shareholder") in connection with his commencement of a formal solicitation of consents in accordance with applicable proxy regulations (the "Consent Solicitation"). The Consent Solicitation seeks to enact certain proposals that would elect a majority of the Company's Board who are committed, subject to their fiduciary duties, to pursuing strategic alternatives to enhance shareholder value, including a business combination or a sale of the Company or its assets. J O Hambro & Company, J O Hambro Asset Management, J O Hambro Investment Management and GFS are not participants in the Consent Solicitation but may be deemed to be members of a group with the other Filing Parties, the Soliciting Shareholder and the other participants in the Consent Solicitation (the "Group") by virtue of their beneficial ownership of the Common Stock and their relationship to certain participants in the Consent Solicitation. The Filing Parties believe that the Company could increase shareholder value by engaging in a business combination with, or sale to, another company in the managed health care business because the memberships in the Company's HMOs are likely to be given a higher market value in such a transaction than is reflected in the current market price for the Company's Common Stock. In addition, the Filing Parties believe that such a transaction would improve the utilization of the Company's net operating loss carryforward, which is presently providing little value to the Company because of the Company's low level of profitability. On April 8, 1998, the Soliciting Shareholder filed a revised preliminary consent solicitation statement (the "Preliminary Statement") with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable rules thereunder. The Preliminary Statement described the proposals of the Soliciting Shareholder, which would, in part, add ten new directors to the Board, thereby increasing the authorized number of directors to seventeen and fill the resulting new directorships with the Soliciting Shareholder Nominees (as defined below), who would constitute a majority of the Board. The Soliciting Shareholder has also proposed repealing any bylaw amendments adopted by the Board since February 1, 1998. Page 12 of 258 Pages According the Preliminary Statement, the Soliciting Shareholder has proposed for election ten people (the "Soliciting Shareholder Nominees") to fill the newly-created directorships including Christopher H. B. Mills, Enrique F. Gittes and Claudia M. Perkins (collectively, the "J O Hambro Nominees"). Mr. Mills is a Filing Party. Mr. Gittes has served as Director of NASCIT, a Filing Party, since 1993, and Ms. Perkins has served as a Director of J O Hambro Capital Management, a Filing Party, since 1995. Mr. Mills, along with the Soliciting Shareholder and another Soliciting Shareholder Nominee, will solicit individuals, brokers, banks, bank nominees and other institutional holders in connection with the Consent Solicitation and will not receive additional compensation for such solicitation. The J O Hambro Nominees have no present intention to change the existing senior management of the Company and intend to support the appointment of a committee to oversee the implementation of the plan to pursue strategic alternatives. The Soliciting Shareholder, J O Hambro Capital Management, NASCIT and American Opportunity Trust have entered into an oral agreement under which the costs of the Consent Solicitation will be shared 40% by the Soliciting Shareholder, 40% by NASCIT and 20% by American Opportunity Trust. The J O Hambro Nominees expect to join the other Soliciting Shareholder Nominees in supporting the Soliciting Shareholder's request for reimbursement of costs and expenses in connection with the Consent Solicitation. None of the Filing Parties will receive any fee in connection with the Consent Solicitation. Although certain of the Filing Parties have agreed to share the costs associated with the Consent Solicitation, the Filing Parties have not agreed, and are not contractually obligated, to vote the shares of Common Stock beneficially owned by such Filing Parties in any manner in connection with the Consent Solicitation or with respect to any other vote of the shareholders of the Company. The Filing Parties reserve the right to participate in or initiate, alone or with others, any other plans, proposals or transactions of a similar or different nature with respect to the Company or its securities. The Filing Parties intend to review their investment in the Company on a continuing basis and, depending on various factors, including the Company's business, affairs and financial position, other developments concerning the Company, the price level of the Common Stock, conditions in the securities markets and general economic and industry conditions, as well as other investment opportunities available to the Filing Parties, may in the future take such actions with respect to their investment in the Company as they deem appropriate in light of the circumstances existing from time to time. Such actions may include the purchase of additional Common Stock in the open market, in privately negotiated transactions or otherwise, or the sale at any time of all or a portion of the Common Stock now owned or hereafter acquired by the Filing Parties to one or more purchasers. The Filing Parties may revise the proposals or submit additional proposals for action by shareholders by written consent or for adoption by shareholders at any meeting of shareholders. Except as described in this Item 4, as of the date of this statement none of the Filing Parties has formulated any plans or proposals that relate to or would result in: (a) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Page 13 of 258 Pages Company; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation of the Company or its subsidiaries, if any; (c) a sale or transfer of a material amount of assets of the Company or its subsidiaries, if any; (d) any change in the present board of directors or management of the Company, including any change in the number or term of directors or the filling of any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Company; (f) any other material change in the Company's business or corporate structure; (g) changes in the Company's charter or bylaws or other actions that may impede the acquisition of control of the Company by any person; (h) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an interdealer quotation system of a registered national securities association; (i) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to those enumerated above. Item 5. Interest in Securities of the Issuer. ------------------------------------ (a) - (b) The aggregate number and percentage of the outstanding Common Stock of the Company beneficially owned (i) by each of the Filing Parties, and (ii) to the knowledge of the Filing Parties, by each other person who may be deemed to be a member of the Group, is as follows:
Number of Number of Number of Shares: Shares: Sole Aggregate Shares: Sole Shared or Shared Filing Number of Power to Power to Power to Approximate Party Shares: Vote Vote Dispose Percentage* - ------ --------- ------------ --------- ------------ ----------- J O Hambro 559,050 0 559,050 559,050 3.1% & Company(1) J O Hambro Asset 559,050 0 559,050 559,050 3.1% Management(1) J O Hambro 480,200 0 480,200 480,200 2.7% Capital Management J O Hambro 78,850 0 78,850 78,850 0.4% Investment Management(1) Christopher H.B. 480,200 0 480,200 480,200 2.7% Mills GFS(1) 305,000 0 305,000 305,000 1.7% NASCIT 305,000 0 305,000 305,000 1.7%
Page 14 of 258 Pages
American 90,000 0 90,000 90,000 0.5% Opportunity Trust George H. Bigelow(2) 1,000 1,000 0 1,000 ** Lawrence Sosnow(2) 9,000 9,000 0 9,000 0.1% Paul R. Dupee, Jr.(2) 333,100 333,100 0 333,100 1.9% - ---------------------------------------------------------------------------------------------------------------
* Based on 17,925,381 shares of Common Stock, par value $.01 per share outstanding as of March 25, 1998, which is based on information reported in the Company's Annual Report on Form 10-K for the year ended December 31, 1997. ** Less than one tenth of one percent. (1) J O Hambro & Company, J O Hambro Asset Management, J O Hambro Investment Management and GFS are not participants in the Consent Solicitation but may be deemed to be members of the Group by virture of their beneficial ownership of the Common Stock and their relationship to certain participants in the Consent Solicitation. (2) Mr. Bigelow, Mr. Sosnow and Mr. Dupee are participants in the Consent Solicitation and, therefore, may be deemed to be part of the Group. The beneficial ownership information relating to such persons is based upon the publicly available information contained in the Preliminary Statement filed with the Securities and Exchange Commission. (c) In the 60 days prior to the date of the filing of this Statement, the Filing Parties effected no transactions in the Common Stock other than those set forth in the following table:
No. of Price Date Filing Party Shares (US$) Broker - ---- ------------ ------ ----- ------ 2/5/98 J O Hambro Investment Management 1,200 $ 8.375 William Blair (on behalf of Mrs. S. E. Z. Morrison) 2/12/98 J O Hambro Capital Management 1,200 $ 9.625 Kelton International Ltd. (on behalf of City of Joy Ltd.) 2/12/98 J O Hambro Capital Management 1,300 $ 9.625 Kelton International Ltd. (on behalf of Jan Gilbert Charitable Remainder Trust) 2/12/98 J O Hambro Capital Management 1,000 $ 9.625 Kelton International Ltd. (on behalf of Lord Stevens of Ludgate Pension Fund) 2/12/98 J O Hambro Capital Management 1,500 $ 9.625 Kelton International Ltd. (on behalf of Peak Investments) 3/20/98 NASCIT 85,000 $ 12.50 N/A - Exercise of Options 3/20/98 NASCIT 20,000 $ 17.50 N/A - Exercise of Options
Page 15 of 258 Pages
4/1/98 J O Hambro Investment Management 800 $ 11.50 Kelton International Ltd. (on behalf of James Norton) 4/2/98 J O Hambro Capital Management 500 $11.625 Kelton International Ltd. (on behalf of City of Joy Ltd.) 4/2/98 J O Hambro Investment Management 1,200 $11.375 Kelton International Ltd. (on behalf of Earl Spencer) 4/2/98 J O Hambro Capital Management 1,000 $11.625 Kelton International Ltd. (on behalf of Labrador Trust) 4/2/98 J O Hambro Capital Management 5,000 $11.625 Kelton International Ltd. (on behalf of Lord Stevens of Ludgate Pension Fund) 4/2/98 J O Hambro Capital Management 5,000 $11.625 Kelton International Ltd. (on behalf of Sannafi Ltd.) 4/2/98 J O Hambro Capital Management 22,000 $11.625 Kelton International Ltd. (on behalf of Seaway Ltd.) 4/2/98 J O Hambro Capital Management 1,500 $11.625 Kelton International Ltd. (on behalf of The Superannuation Fund of Wigan Richardson International Limited) 4/5/98 J O Hambro Investment Management 2,000 $ 11.75 Kelton International Ltd. (on behalf of R. C. Bonsor Will Trust)
All of the above transactions were effected in the open market and were purchases except for (i) the transactions on February 5, 1998, April 1, 1998, and April 2, 1998 (for 1,200 shares), which were sales, and (ii) the transactions on March 20, 1998, which were purchases that were effected through the exercise of options. (d) The private clients of J O Hambro Capital Management and J O Hambro Investment Management have an economic interest in the dividends from, and the proceeds of sales of, Common Stock beneficially owned by J O Hambro Capital Management and J O Hambro Investment Management, respectively. The shareholders of NASCIT and American Opportunity Trust have an economic interest in the dividends from, and the proceeds of sales of, Common Stock beneficially owned by NASCIT and American Opportunity Trust, respectively. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect --------------------------------------------------------------------- to Securities of the Issuer. --------------------------- Page 16 of 258 Pages As co-investment advisers to NASCIT, Christopher Harwood Bernard Mills and J O Hambro Capital Management share the right to transfer and vote the shares of Common Stock of the Company pursuant to an agreement entered into among NASCIT, GFS and Christopher Mills and an agreement entered into between NASCIT and J O Hambro Capital Management, each dated as of January 7, 1993, respectively. As co-investment advisers to American Opportunity Trust, Christopher Harwood Bernard Mills and J O Hambro Capital Management share the right to transfer and vote the shares of Common Stock of the Company pursuant to an agreement dated as of January 7, 1993 between American Opportunity Trust and J O Hambro Capital Management. As investment manager for private clients Sannafi Limited, Seaway Limited, Peak Investments, Lord Stevens of Ludgate Pension Fund, The Jan Gilbert Charitable Remainder Trust, The Superannuation Fund of Wigan Richardson International Limited, City of Joy Ltd., and Labrador Trust, J O Hambro Capital Management has the right to transfer and vote the shares of Common Stock of the Company pursuant to either agreements or arrangements entered into with such private clients. As investment manager for private clients R.C. Bonsor Will Trust, Earl Spencer, James Norton, and Mrs. S. E. Z. Morrison, J O Hambro Investment Management has the right to transfer and vote the shares of Common Stock of the Company pursuant to either agreements or arrangements entered into with such private clients. Item 7. Material to be Filed as Exhibits. -------------------------------- The following documents are filed herewith: (a) Secondment Services Agreement dated as of January 7, 1993 among NASCIT, GFS and Christopher Harwood Bernard Mills. (b) Administration, Management and Custody Agreement dated as of January 7, 1993 between NASCIT and J O Hambro Capital Management (formerly named J O Hambro & Partners Limited). (c) Administration, Management and Custody Management Agreement dated as of January 7, 1993 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and American Opportunity Trust. (d) Investment Management Agreement dated as of February 29, 1996 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and Seaway Limited. (e) Investment Management Agreement dated as of January 23, 1996 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and Peak Investments. Page 17 of 258 Pages (f) Investment Management Agreement dated as of February 9, 1996 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and Lord Stevens of Ludgate Pension Fund. (g) Investment Management Agreement dated as of September 18, 1996 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and The Jan Gilbert Charitable Remainder Trust. (h) Investment Management Agreement dated as of February 26, 1997 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and The Superannuation Fund of Wigan Richardson International Limited. (i) Investment Management Agreement dated as of February 25, 1998 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and City of Joy Ltd. (j) Investment Management Agreement dated as of December 19, 1997 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and Labrador Trust. (k) Investment Management Agreement dated as of March 8, 1989 between J O Hambro Investment Management and R C. Bonsor Will Trust. (l) Investment Management Agreement dated as of November 18, 1991 between J O Hambro Investment Management and Earl Spencer (formerly Viscount Althorp). (m) Investment Management Agreement dated as of October 11, 1994 between J O Hambro Investment Management and James Norton. (n) Investment Management Agreement dated as of February 26, 1996 between J O Hambro Investment Management and Mrs. S. E. Z. Morrison. (o) Power of Attorney of Christopher Harwood Bernard Mills dated July 9, 1997. (p) Joint Filing Agreement dated as of April 13, 1998 among NASCIT, GFS, J O Hambro Capital Management, J O Hambro Asset Management, J O Hambro & Company, J O Hambro Investment Management, American Opportunity Trust and Christopher Harwood Bernard Mills. Page 18 of 258 Pages After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Dated: 13 April 1998 J O HAMBRO CAPITAL MANAGEMENT LIMITED By: /s/ Claudia Perkins ------------------------------------------ Name: Claudia Perkins Title: Director Executed on behalf of the parties hereto pursuant to the Joint Filing Agreement filed herewith. Page 19 of 258 Pages Schedule A ---------- The following table sets forth certain information concerning each of the directors and executive officers of J O Hambro & Company Limited ("J O Hambro & Company") as of the date hereof.
Name: Rupert Nicholas Hambro (Chairman) Citizenship: British Business Address: J O Hambro & Company Limited 10 Park Place London SW1A 1LP England Principal Occupation: Chairman, J O Hambro & Company Name: Richard Alexander Hambro (Director) Citizenship: British Business Address: J O Hambro & Company Limited 10 Park Place London SW1A 1LP England Principal Occupation: Chairman, J O Hambro Investment Management Limited/1/ Director, J O Hambro & Company Name: James Daryl Hambro (Managing Director) Citizenship: British Business Address: J O Hambro & Company Limited
- ------------------- /1/ J O Hambro Investment Management Limited is principally engaged in the investment advisory business and has its principal business and office at 10 Park Place, London SW1A 1LP England. Page 20 of 258 Pages
10 Park Place London SW1A 1LP England Principal Occupation: Managing Director, J O Hambro & Company Managing Director, J O Hambro Capital Management Director, J O Hambro Asset Management Name: Richard David Christopher Brooke (Director) Citizenship: British Business Address: J O Hambro & Company Limited 10 Park Place London SW1A 1LP England Principal Occupation: Director, J O Hambro & Company Chairman, NASCIT Name: Robert Charles Orlando Hellyer (Executive Director) Citizenship: British Business Address: J O Hambro & Company Limited 10 Park Place London SW1A 1LP England Principal Occupation: Executive Director, J O Hambro & Company Executive Director, J O Hambro Capital Management Executive Director, J O Hambro Investment Management Limited Executive Director, J O Hambro Asset Management Name: David Frank Chaplin (Director)
Page 21 of 258 Pages
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
Page 22 of 258 Pages 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 Capital Management Name: James Daryl Hambro (Director) Citizenship: British Business Address: J O Hambro Capital Management Limited 10 Park Place London SW1A 1LP Page 23 of 258 Pages England Principal Occupation: Managing Director, J O Hambro Capital Management Managing Director, J O Hambro & Company Director, J O Hambro Asset Management Limited Page 24 of 258 Pages The following table sets forth certain information concerning each of the directors and executive officers of J O Hambro Capital Management Limited ("J O Hambro Capital Management") as of the date hereof. Name: James Daryl Hambro (Managing Director) Citizenship: British Business Address: J O Hambro Capital Management Limited 10 Park Place London SW1A 1LP England Principal Occupation: Managing Director, J O Hambro Capital Management Managing Director, J O Hambro & Company Director, J O Hambro Asset Management Name: Robert Charles Orlando Hellyer (Executive Director) Citizenship: British Business Address: J O Hambro Capital Management Limited 10 Park Place London SW1A 1LP England Principal Occupation: Executive Director, J O Hambro Capital Management 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 Page 25 of 258 Pages Principal Occupation: Executive Director, NASCIT Executive Director, American Opportunity Trust Director, J O Hambro Capital Management Name: Claudia Margaret Cecil Perkins (Director) Citizenship: British Business Address: J O Hambro Capital Management Limited 10 Park Place London SW1A 1LP England Principal Occupation: Director, J O Hambro Capital Management Name: Malcolm Robert King (Director) Citizenship: British Business Address: J O Hambro Capital Management Limited 10 Park Place London SW1A 1LP England Principal Occupation: Director, J O Hambro Capital Management Name: Paul Gavint (Director) Citizenship: British Business Address: J O Hambro Capital Management Limited 10 Park Place London SW1A 1LP England Principal Occupation: Consultant Non-executive director, J O Hambro Capital Management Page 26 of 258 Pages 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 Management") 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 Management 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 Management 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 Management Page 27 of 258 Pages 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 Management 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 Management 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 Management Executive Director, J O Hambro & Company Executive Director, J O Hambro Asset Management Executive Director, J O Hambro Capital Management Page 28 of 258 Pages 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 Management 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 Management 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 Management Name: Ian Colguhoun Marris (Executive Director) Citizenship: British Business Address: J O Hambro Investment Management Limited Page 29 of 258 Pages 10 Park Place London SW1A 1LP England Principal Occupation: Executive Director, J O Hambro Investment Management 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 Management Name: Andrew James Steel (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 Management Page 30 of 258 Pages 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 Capital Management Name: Enrique Foster Gittes (Director) Citizenship: USA Residence: 4 East 82nd Street New York, New York 10028 USA Principal Occupation: Director, NASCIT Page 31 of 258 Pages Name: Robert D. le P. Power (Director) Citizenship: British Business Address: SouthCoast Capital Corporation/2/ 575 Lexington Avenue 7th Floor New York, New York 10022 USA Principal Occupation: Director, SouthCoast Capital Corporation Name: Douglas P C Nation (Director) Citizenship: British Business Address: Bear Stearns Co. Inc./3/ 245 Park Avenue New York, NY 10167 Principal Occupation: Managing Director, Bear Stearns Co. Inc. Name: The Hon. Peregrine D E M Moncreiffe (Director) Citizenship: British Business Address: Buchanan Partners Limited/4/ Buchanan House 3 St. James's Square London SW1Y 4JU England Principal Occupation: Director, Buchanan Partners Limited - ---------------------- /2/ Southcost Capital Corporation principally engages in the brokerage business. /3/ Bear Stearns Co. Inc. principally engages in the brokerage business. /4/ Buchanan Partners Limited principally engages in the investment management business. Page 32 of 258 Pages 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 Capital Management 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 33 of 258 Pages 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/5/ 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 Capital Management Name: John Gildea (Director) Citizenship: USA Business Address: Gildea Management Company/6/ 90 Ferris Hill Road New Canaan, Connecticut 06840 USA Principal Occupation: President, Gildea Management Company - -------------------------- /5/ Covey Advertising Limited is principally engaged in the advertising business. /6/ Gildea Management Company is principally engaged in the investment management business. Page 34 of 258 Pages Name The Hon. James J. Nelson (Director) Citizenship: British Business Address: Foreign & Colonial Ventures/7/ 4th Floor Berkeley Square House Berkeley Square London W1X 5PA England Principal Occupation: Director, Foreign & Colonial Ventures Name: Iain Tulloch (Director) Citizenship: British Business Address: Murray Johnstone Ltd./8/ 7 West Nile Street Glasgow G2 2PX Scotland Principal Occupation: Director, Murray Johnstone Ltd. Name: Philip Ehrmann (Director) Citizenship: British Business Address: Gartmore Investment Management Ltd./9/ Gartmore House 16 - 18 Monument Street London EC3R 8AJ England - ------------------------- /7/ Foreign & Colonial Ventures is principally engaged in the investment management business. /8/ Murray Johnstone Ltd. is principally engaged in the investment management business. /9/ Gartmore Investment Management Limited is principally engaged in the investment management business. Page 35 of 258 Pages Principal Occupation: Investment Manager, Gartmore Investment Management Ltd. Page 36 of 258 Pages Exhibit Index ------------- Document Page - -------- ---- The following documents are filed herewith: (a) Secondment Services Agreement dated as of January 7, 1993 among NASCIT, GFS and Christopher Harwood Bernard Mills. (b) Administration, Management and Custody Agreement dated as of January 7, 1993 between NASCIT and J O Hambro Capital Management (formerly named J O Hambro & Partners Limited). (c) Administration, Management and Custody Management Agreement dated as of January 7, 1993 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and American Opportunity Trust. (d) Investment Management Agreement dated as of February 29, 1996 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and Seaway Limited. (e) Investment Management Agreement dated as of January 23, 1996 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and Peak Investments. (f) Investment Management Agreement dated as of February 9, 1996 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and Lord Stevens of Ludgate Pension Fund. (g) Investment Management Agreement dated as of September 18, 1996 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and The Jan Gilbert Charitable Remainder Trust. (h) Investment Management Agreement dated as of February 26, 1997 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and The Superannuation Fund of Wigan Richardson International Limited. (i) Investment Management Agreement dated as of February 25, 1998 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and City of Joy Ltd. (j) Investment Management Agreement dated as of December 19, 1997 between J O Hambro Capital Management (formerly named J O Hambro & Partners Limited) and Labrador Trust. (k) Investment Management Agreement dated as of March 8, 1989 between J O Hambro Investment Management and R C. Bonsor Will Trust. Page 37 of 258 Pages (l) Investment Management Agreement dated as of November 18, 1991 between J O Hambro Investment Management and Earl Spencer (formerly Viscount Althorp). (m) Investment Management Agreement dated as of October 11, 1994 between J O Hambro Investment Management and James Norton. (n) Investment Management Agreement dated as of February 26, 1996 between J O Hambro Investment Management and Mrs. S. E. Z. Morrison. (o) Power of Attorney of Christopher Harwood Bernard Mills dated July 9, 1997. (p) Joint Filing Agreement dated as of April 13, 1998 among NASCIT, GFS, J O Hambro Capital Management, J O Hambro Asset Management, J O Hambro & Company, J O Hambro Investment Management, American Opportunity Trust and Christopher Harwood Bernard Mills. Page 38 of 258 Pages EX-99.(A) 2 2ND SERVICES AGRMNT. NASCIT, GFS & CHRIS MILLS SECONDMENT SERVICES AGREEMENT AMONG NASCIT, GFS AND CHRISTOPHER MILLS Page 39 of 258 Pages DATED 7th January, 1993 ----------------------- CONSOLIDATED VENTURE TRUST PLC and GROWTH INVESTMENT MANAGEMENT LIMITED and CHRISTOPHER HARWOOD BERNARD MILLS --------------------------------- SECONDMENT SERVICES AGREEMENT --------------------------------- Allen & Overy London THIS AGREEMENT is made on 7th January, 1993. Page 40 of 258 Pages (1) CONSOLIDATED VENTURE TRUST PLC of 11 Devonshire Square, London EC2M 4YR (the "Company"); ------- (2) GROWTH INVESTMENT MANAGEMENT LIMITED of 10 Clivedon Place, London SW1W 6LA ("GIM"); and --- (3) CHRISTOPHER HARWOOD BERNARD MILLS of 10 Clivedon Place, London SW1W 6LA (the "Executive"). ----------- NOW IT IS HEREBY AGREED as follows: 1. Interpretation -------------- (a) In this Agreement: "Administration, Management and Custody Agreement" -------------------------------------------------- means an administration, management and custody agreement made on or about the same date as this Agreement between the Company and JO Hambro & Partners Limited; "Associated Company" means: -------------------- (i) a company which is not a subsidiary of the Company but whose issued equity share capital (as defined in section 744 of the Companies Act 1985) is owned as to at least 20 per cent. by the Company or one of its Subsidiary Companies; and (ii) a Subsidiary Company of a company within (a) above; "Board of Directors" -------------------- means the board of directors of the Company or a committee of the board of directors of the Company; "the Company" ------------- includes each of its branches if any; "Group" ------- means the Company, and its Subsidiary Companies and Associated Companies for the time being and "Group Company" means any one of them; Page 41 of 258 Pages "Investments" ------------- includes any asset, right or interest falling within Part I of Schedule 1 of the Financial Services Act 1986 and any other asset, right or interest in respect of property of any kind wherever situate whether or not producing income; "Shareholders' Funds" --------------------- means the amount of the nominal capital of the Company for the time being issued and paid up or credited as paid up, the amount repayable by the Company in respect of any borrowings repayable more than three years after initially made (but excluding convertible debt) and the amounts standing to the credit of the consolidated capital and revenue reserves (including without limitation share premium account, capital redemption reserve and profit and loss account) of the Company and its Subsidiary Companies properly reflected in an audited balance sheet of the Company prepared in accordance with recognised accounting principles but after making such adjustments as may be necessary to reflect: (a) the Board of Directors' valuation of all unquoted investments in accordance with a statement of value prepared for and approved by the Board of Directors in accordance with procedures and on a basis reviewed by the Company's auditors; and (b) the payment of any dividend or the making of any other distribution to shareholders of the Company. "Subsidiary Company" means a subsidiary as defined by section 736 of the Companies Act 1985; and "Working Day" means a day other than a Saturday, Sunday or bank holiday or other public holiday in England. (b) References to persons include bodies corporate and unincorporated associations and references to companies include any bodies corporate. (c) Any reference to a statutory provision includes any statutory modification or re-enactment of it for the time being in force. (d) Subclauses (1) to (3) above apply unless the contrary intention appears. (e) The headings in this Agreement do not affect its construction. (f) References to amounts payable shall be exclusive of value added tax thereon so that value added tax shall be payable in addition if and to the extent chargeable. 2. Services -------- Page 42 of 258 Pages (a) GIM shall provide the services of the Executive to the Company as described and on the terms set out in this Agreement ("the Services"). The parties intend the Services to be provided by secondment of the Executive from GIM to the Company. (b) GIM shall employ the Executive for the purposes of enabling it to provide the Services. (c) The provision of the Services by GIM shall be deemed to take effect from the date of execution of this Agreement ("the Commencement Date"). (d) GIM and the Executive warrant to the Company that by entering into this Agreement and performing the Services they will not be in breach of any contract or other obligation binding on them. 3. Services of the Executive ------------------------- (a) GIM shall, and shall procure that the Executive shall, use their best endeavours to protect and further the interests of the Company giving the full benefit of the Executive's knowledge and expertise. (b) GIM shall procure that the Executive shall serve as chief executive and director of the Company, subject to the Company appointing the Executive as such. (c) The Executive shall perform the functions from time to time assigned to or vested in him by the Board of Directors and in particular he shall be responsible (subject to such authorisation procedures as the Board of Directors may specify and except to the extent that the Board shall not require the services of the Executive in respect of all or part of the Investments of the Company) for: i. keeping under review the investments from time to time held by the Company; ii. deciding upon purchases and sales and other transactions in respect of investments and subscriptions to issues of investments, including underwriting commitments on behalf of the Company and otherwise determining when the Company should invest, realise and re-invest its assets and exercise all rights attaching to its assets; iii. searching out and evaluating investment opportunities for the Company; iv. analysing the progress of companies in which the Company has invested; Page 43 of 258 Pages v. submitting to the Board of Directors such reports and information regarding investments as the Board of Directors shall reasonably require; and vi. recommending to the Board of Directors any future developments or changes to the investment policy of the Company. (d) The Executive shall faithfully serve the Company, and GIM shall procure that the Executive shall devote 50 per cent. of his time during normal business hours to the provision of the services and at such additional times as are necessary for the proper fulfilment of those services, but the Executive shall not be required to provide such services at such times as he is on holiday (as provided for in Clause 7), nor at such times (being not more than 90 Working Days in any period of 12 consecutive months) when the Executive is incapacitated by reason of illness or injury. (e) GIM shall, and shall procure that the Executive shall, accept appointments to such offices and enter into such agreements as the Company shall deem reasonably necessary for the proper provision of the Services. (f) GIM shall, and shall procure that the Executive shall, disclose forthwith to the Board of Directors any conflict of interest which may arise in connection with the performance of the Services as a result of any other present or future appointment, employment or interest of GIM or the Executive (other than that which concerns a Group Company). (g) The Executive shall provide the Services at such place or places as the Board of Directors may reasonably require. 5. Fee --- (1) The Company shall pay to GIM a fee to be agreed from time to time ("the Fee") but so that the maximum fee payable under this sub-clause (exclusive of Value Added Tax) when aggregated with the Management Fee (exclusive of Value Added Tax) payable under the Administration, Management and Custody Agreement (or any administration, management and custody agreement with whomsoever made superseding that agreement) shall not in any financial period of the Company exceed one per cent. of Shareholders' Funds of the Company and its Subsidiary Companies on the last day of the preceding financial period of the Company. (2) For the avoidance of doubt, the Company shall not be obliged to provide the Executive with, or reimburse GIM for the cost of providing the Executive with medical insurance, life assurance, pension benefits, accident insurance, permanent health assurance or other benefits except as expressly provided for in this Agreement. (3) The Fee shall accrue from day to day and be payable quarterly in advance on 31st January, 30th April, 31st July and 31st October in each year. The first payment shall Page 44 of 258 Pages be a pro rata part of the quarterly fee for the period from the date of this Agreement to the next quarter date. GIM shall reimburse the Company for a pro rata part of any quarterly fee paid in advance in respect of any period after termination of this Agreement. (4) The Fee shall be exclusive of any fees receivable by the Executive as a director of any Group Company. (5) In addition to the Fee the Company shall pay to GIM a performance fee in the amount and payable in the manner set out in the Schedule to this Agreement ("the Performance Fee"). (6) The Company shall pay to the Executive (pounds)1 per annum (if demanded) as consideration for his obligations under this Agreement. 6. Expenses -------- (1) In addition to the Fee and Performance Fee the Company shall reimburse GIM (on production of such vouchers or other evidence as the Company may require) the amount of all travelling and other expenses properly and reasonably incurred by the Executive in the provision of the Services. (2) The Company shall provide the Executive with reasonably suitable office accommodation and secretarial assistance at the offices of the Company or such Group Company as may be appropriate so as to enable the Executive properly to provide the Services but nothing in this Agreement shall be construed or have effect as constituting any relationship of landlord or tenant between the Company and GIM or the Executive and any use of such office accommodation by GIM or the Executive shall be as bare licensee of the Company. 7. Holidays -------- (a) The Company acknowledges that the Executive is entitled to a maximum of 30 Working Days' holiday in every calendar year under his service agreement with GIM. (b) GIM and the Executive agree that the Executive will take his holidays at such times as are convenient to the Company. 8. Confidential Information ------------------------ (a) GIM and the Executive acknowledge that to enable them to provide the Services and to discharge their responsibilities under this Agreement the Company, and the Group, will provide them with information relating to the Group of a highly confidential nature (any and all information relating to the Company, the Group, and each Group Company, their respective businesses, activities or customers, including but without limitation all and any analyses, compilations, Page 45 of 258 Pages forecasts, studies or other documents, is referred to in this Agreement as "Information"). (b) GIM and the Executive agree that they will adopt all such procedures as the Company may require and that they will keep confidential all Information and shall not, without the prior written consent of the Board of Directors (save as required by law) disclose the Information in whole or in part other than to the Board of Directors and to the Company's professional advisers. GIM and the Executive shall not use the Information other than in connection with the provision of the Services. Notwithstanding the foregoing, GIM and the Executive agree not to disclose the Information (save as required by law) to any person except to the extent necessary to discharge their responsibilities under this Agreement. (c) Any document, including without limitation notes, memoranda, diaries, correspondence, computer disks or copies thereof created by GIM or the Executive in providing the Services shall be and remain the property of the Company or such Group Company as appropriate and the Company or such Group Company shall be the absolute beneficial owner of the copyright in any such document. (d) GIM and the Executive shall at any time during the continuance of this Agreement if so required by the Company or any Group Company and in the event of the termination of this Agreement (whether lawfully or otherwise) surrender to the Company or such Group Company all original and copy documents in their possession custody or control belonging to the Company or Group Company or relating to the business of the Company or any Group Company together with any other property belonging to the Company or any Group Company. (e) The obligations of GIM and the Executive under this Agreement apply to all and any Information whether the Information was in or comes into their possession prior to or following this Agreement and such obligations shall be continuing obligations throughout the continuance of this Agreement and at all times following its termination. (f) GIM and the Executive agree to observe the laws and regulations which may apply in the jurisdictions where the Company and the Group Companies are located. (g) GIM and the Executive understand and agree that any breach of their obligations under this Clause 8 will cause the Company irreparable injury and that monetary damages will not be an adequate remedy for any such breach. In the event of any breach or threatened breach by GIM or the Executive, the Company shall be entitled to injunctive relief in any court of competent jurisdiction restraining GIM or the Executive from such breach. 9. Gratuities and Codes of Conduct ------------------------------- Page 46 of 258 Pages (a) GIM and the Executive shall not directly or indirectly accept any commission, rebate or other financial benefit from any person who has or is likely to have a business relationship with any Group Company without the consent of the Board of Directors. (b) GIM and the Executive shall comply with all codes of conduct from time to time adopted by the Company, and with all applicable rules and regulations of the London Stock Exchange and any other relevant regulatory authority including (without limitation) the Model Code for Securities Transactions by Directors of Listed Companies. 10. Termination of Appointment -------------------------- (a) This Agreement shall be for a period of 12 months from the Commencement Date and shall continue for successive periods of 12 months provided that GIM or the Company may terminate this Agreement at any time by giving to the other of them at least 12 months' notice in writing expiring at any time (whether or not on the anniversary of this Agreement). (b) If: i. the Executive ceases for any reason to be an employee of GIM; ii. the Executive becomes of unsound mind or is, or may be, suffering from mental disorder and either: (i) he is admitted to hospital for treatment under the Mental Health Act 1983; or (ii) an order is made by any competent court for his detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his property or affairs; iii. the Executive is unable properly to perform his duties under his service agreement with GIM by reason of ill- health, accident or otherwise for a period or periods aggregating at least 180 Working Days in any period of 12 consecutive months; iv. GIM or the Executive fails or neglects efficiently and diligently to discharge its duties, or GIM or the Executive is guilty of any breach of their obligations under this Agreement or any other agreement with a Group Company (including any consent granted under any of them); Page 47 of 258 Pages v. GIM or the Executive is guilty of misconduct or suffers any matter which (by reason of its effect on the Executive=s reputation or otherwise) affects or is likely to affect prejudicially the interests of the Company or the Group, or the Executive is convicted of an arrestable offence (other than a road traffic offence for which a non-custodial penalty is imposed); vi. the Executive becomes bankrupt or makes any arrangement or composition with his creditors (other than as a result of losses relating to his underwriting affairs in the Lloyds insurance market); vii. GIM becomes unable to pay its debts as they fall due or makes any arrangement or composition with its creditors or an order is made or any effective resolution is passed for winding-up GIM; or viii. the Executive is disqualified from being a director of any company by reason of an order made by any competent court the Company may by written notice to GIM terminate this Agreement with immediate effect but: (i) any such termination shall be without prejudice to any other rights of the Company; and (ii) a notice under sub-clause (c) may be given by the Company to GIM only within 90 days after the end of any period or periods of disability referred to in that sub-clause. (c) On the termination of this Agreement in any way (whether lawfully or otherwise) the Executive shall immediately resign all offices held by him in any Group Company (without prejudice to the rights of any party arising out of this Agreement or the termination of this Agreement) and if he fails to do so the Company is irrevocably authorised to appoint some person in his name and on his behalf to do all such things and execute all such documents as may be necessary, or incidental to, to give effect to his resignation. 11. Executive not an employee of the Company nor carrying on separate ----------------------------------------------------------------- investment business ------------------- (a) Nothing contained in this Agreement shall be construed or have effect as constituting any relationship of employer and employee between the Company Page 48 of 258 Pages and the Executive save that, for the purposes of Clause 8 only, the Executive agrees to be subject to the same status as the employees of the Company. (b) The Executive shall at all times be an employee of GIM. (c) GIM shall be responsible for the payment of any wages, Employers' National Insurance and any other contributions required by law to be paid by it as employer in relation to the Executive and shall make all appropriate deductions from the Executive's wages in respect of Income Tax (PAYE) and Employers' National Insurance contributions and shall indemnify the Company in respect thereof. (d) Nothing contained in this Agreement shall be construed or have effect as either the Executive or GIM carrying on investment business within the meaning of the Financial Services Act 1986, in particular in relation to the functions described in Clause 3(3) of this Agreement. The intent of the parties is that GIM will provide the services of the Executive but neither GIM nor the Executive shall be treated as providing independent investment management or advisory services to the Company. 12. Guarantee --------- (a) The Executive hereby unconditionally guarantees and undertakes to the Company that GIM shall duly and punctually observe and perform all the undertakings, covenants and obligations whatsoever of GIM under this Agreement to the intent that if GIM shall fail for whatever reason so to observe and perform any of such undertakings, covenants and obligations the Executive shall be liable to perform the same in all respects as if the Executive were principally bound thereby. (b) No time or other indulgence given by the Company to GIM nor any neglect failure or forbearance on the part of the Company to enforce the performance or observance of any of GIM=s undertakings, covenants and obligations under this Agreement shall in any way release or affect the liability of the Executive hereunder. 13. Indemnity --------- The Company shall, insofar as it is permitted by any applicable law, indemnify GIM and the Executive against any costs, claims or liabilities incurred as a result of the Executive being a director or an officer of any Group Company or his being held out to any person as a director or officer of any such company. 14. General ------- (a) Neither GIM nor the Executive shall assign or otherwise transfer any of its or his rights nor sub-contract or otherwise transfer any of its or his obligations under this Agreement. If the Company transfers the whole or a substantial part Page 49 of 258 Pages of its undertaking and property to another company as part of a reconstruction or amalgamation, the Company may by written notice to GIM transfer all its rights and obligations under this Agreement to that other company. (b) This Agreement shall be governed by and construed in accordance with English law. The parties irrevocably submit to the jurisdiction of the English courts. 15. Notices ------- Any notice to be served under this Agreement may, in the case of the Company be delivered or sent by first class post to the Company at its registered office for the time being and, and in the case of GIM or the Executive, may be delivered to the Executive or sent by first class post to the Executive's usual or last known place of residence. Notices served by first class post shall be deemed duly served twenty-four hours after posting and proof of posting shall be proof of delivery. IN WITNESS of which each of the parties has executed this Agreement on the date first mentioned on page 1. Page 50 of 258 Pages SCHEDULE -------- The Performance Fee ------------------- The Performance Fee referred to in Clause 5(5) of the Agreement shall be calculated and payable as follows: 1. As further consideration for the performance of the Services, GIM shall be entitled to receive on 1st July in each year a Performance Fee which shall be calculated as the amount equivalent to a percentum of Funds (as calculated below) of the Company as at 31st March each year (an in respect of any period, to which this Agreement applies, of less or more than twelve months the Performance Fee shall be decreased or (as the case may be) increased in proportion to the amount by which the period in question is less than 365 days or exceeds 365 days, as the case may be). 2. In the event of any change in the financial year end of the Company from 31st January in any year, the period covered by this Schedule shall be altered so that any current period the subject of this Schedule shall expire on the date falling two calendar months after the date of the new financial year end of the Company and so that: (a) any such new period covered by this Schedule shall always commence on the date falling two calendar months and one day after the expiry of the financial period of the Company; (b) payment pursuant to paragraph 1 above shall be made on the date falling six calendar months and one day after the new financial year end date of the Company; (c) all references to 31st March in this Schedule shall then be deemed to apply to the date falling two months after the new financial year end of the Company; and (d) in the event of any further change in the financial year end of the Company the provisions of this sentence shall apply "mutatis mutandis". 3. In addition, if the appointment of GIM under this Agreement terminates otherwise than on 31st March (or such date on which the relevant twelve month period ends) GIM shall be entitled to a proportionate part of the fee which would have been payable to it if the appointment had been effective during the whole of the twelve month period in question. 4. Such percentum will be calculated from the fraction arising in accordance with the following formula: (A - 1) x 0.1 - -- Page 51 of 258 Pages (B ) Where A - Funds at 31st March in any calendar year ("Relevant Year Date") ___________________________________________________________________ Funds at 31st March in the immediately preceding calendar year ("Preceding Year Date") the Standard & Poors' rate of exchange of Composite Index at US$ per (Pounds)1 at the B - the Relevant Year End Preceding Year Date --------------------- ------------------- x the Standard & Poors' rate of exchange of Composite Index at US$ per (Pounds)1 at the the Preceding Year Date Relevant Year Date Provided always that the percentum shall not be less than nil and not greater than 0.5 per cent. 5. In the event of the issue of new shares, debentures or other loan capital by the Company for value or in the event of any shares, debentures or other loan capital of the Company being repaid during the relevant period, item A shall be adjusted as the Board of Directors may determine and the Company's auditors shall confirm as fair and reasonable. 6. In the event of any dispute between GIM and the Board of Directors as to the value to be attributed to the Investments or any of them pursuant to these provisions the value shall be determined by the auditors of the Company acting as experts and not as arbitrators and their valuation shall be final and binding upon the parties and the provisions of paragraph 7 below shall apply to the calculation of the Performance Fee. 7. For the purposes of this Schedule the expression "Funds" shall mean the amount of the nominal capital of the Company for the time being issued and paid up or credited as paid up and the amounts standing to the credit of the consolidated capital and revenue reserves (including without limitation share premium account, capital redemption reserve fund and profit and loss account) of the Company and its subsidiaries at the date on which the calculation is required to be made based on the last audited balance sheet of the Company but after making such adjustments as may be necessary to reflect: (a) realised profits or losses arising in respect of the period from the date of the last audited balance sheet to the date of the calculation; Pages 52 of 258 Pages (b) the Board of Directors' valuation of all unquoted investments on such date of calculation in accordance with a statement of value prepared for and approved by the Board of Directors in accordance with procedures and on a basis reviewed by the Company's auditors; (c) the payment of any dividend or the making of any other distribution to shareholders of the Company. 8. Subject to the provisions of this Schedule the Performance Fee shall be paid on 1st July in respect of the twelve month period commencing on 1st April in the preceding calendar year and ending on 31st March in the current calendar year. Page 53 of 258 Pages
SIGNED by H. Gittes ) /s/ H. Gittes on behalf of CONSOLIDATED ) VENTURE TRUST PLC ) in the presence of: ) SIGNED by C.H.B. Mills ) /s/ Christopher Mills on behalf of GROWTH INVESTMENT ) MANAGEMENT LIMITED ) in the presence of: ) SIGNED by CHRISTOPHER HARWOOD ) /s/ Christopher Mills BERNARD MILLS ) in the presence of: )
(E13971013) EX-99.(B) 3 CUSTODY AGRMNT. NASCIT & J O HAMBRO ADMINISTRATION, MANAGEMENT AND CUSTODY AGREEMENT BETWEEN NASCIT AND J O HAMBRO & PARTNERS Page 5 of 258 Pages DATED 7th January 1993 ---------------------- CONSOLIDATED VENTURE TRUST PLC and J O HAMBRO & PARTNERS LIMITED ______________________________________________________________ ADMINISTRATION, MANAGEMENT AND CUSTODY AGREEMENT ______________________________________________________________ Allen & Overy London THIS AGREEMENT is made on 7th January 1993 BETWEEN: (1) CONSOLIDATED VENTURE TRUST PLC of 11 Devonshire Square, London EC2M 4YR (the "Company"); and ------- (2) J O HAMBRO & PARTNERS LIMITED of 30 Queen Anne's Gate, London SW1H 9AL (the "Manager"). ------- NOW IT IS HEREBY AGREED as follows: 1. Interpretation -------------- (1) In this Agreement: "Board" ----- means the Board of Directors of the Company, or a committee thereof or (where the context so admits) a Director of the Company, duly authorised; "IMRO" ---- means the Investment Management Regulatory Organisation Limited or its successors from time to time; "IMRO Rules" ---------- means the rules of IMRO from time to time applicable; "Investments" ----------- includes any asset, right or interest falling within any paragraph in Part I of Schedule I to the Financial Services Act 1986 and any other asset, right or interest in respect of property of any kind and, without prejudice to the foregoing, wherever situate and whether or not producing income; "Portfolio" --------- means the Investments from time to time owned by the Company; "Secondment Services Agreement" ----------------------------- means an Agreement made on or about the same date as this agreement between the Company, Growth Investment Management Limited ("GIM") and Christopher Harwood Bernard Mills; "Stock Exchange" -------------- Page 57 of 258 Pages means The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited; "subsidiary" ---------- shall have the meaning ascribed thereto by Section 736 of the Companies Act 1985. (2) References to persons include bodies corporate and unincorporated associations and references to companies include any bodies corporate. (3) Any reference to a statutory provision includes any statutory modification or re-enactment of it for the time being in force. (4) Subclauses (1) to (3) above apply unless the contrary intention appears. (5) The headings in this Agreement do not affect its construction. (6) References to amounts payable by the Company shall be exclusive of value added tax thereon so that value added tax shall be payable in addition if and to the extent chargeable. 2. Appointment ----------- The Company hereby appoints the Manager to be the investment manager and administrator of the Company to provide the services and facilities mentioned below with effect from the date of execution of this Agreement, such appointment to continue (unless previously terminated under Clause 11 below) until terminated by either party upon the expiry of not less than 12 months' written notice given to the other. 3. Investment Management --------------------- (1) The Manager shall undertake with regard to such Investments as may from time to time be notified to and agreed with the Manager (the "Relevant Investments"), the duties normally performed by investment managers, subject to the policy directions and overall guidelines from time to time notified to the Manager by the Board, and in particular but without in any way prejudicing the generality of the foregoing shall on behalf of the Company: (a) keep under constant review the Relevant Investments from time to time held by the Company; (b) be entitled (at its absolute discretion and without obtaining the prior written permission of the Company) to withdraw deposits, to effect purchases and sales and other transactions in respect of Relevant Investments and subscriptions to issues of Relevant Investments, to enter into underwriting commitments in relation to Relevant Investments on behalf of the Company and otherwise to invest, realise and re-invest the Portfolio in relation to Relevant Investments and Page 58 of 258 Pages exercise all rights attaching to Relevant Investments comprised therein and in each such case to charge the amounts payable to the Portfolio; (c) search out and evaluate investment opportunities in Relevant Investments for the Company; (d) analyse the progress of companies in which the Company has made Relevant Investments; (e) submit to the Board such reports and information regarding Relevant Investments as the Board shall reasonably require; and (f) recommend to the Board any future developments or changes to the investment policy of the Company which the Manager may consider to be advisable. (2) The Board shall procure that Christopher Mills consults with the Manager prior to making investment decisions on behalf of the Company relating to unlisted investments. If the Manager objects to any such investment decision by Christopher Mills it may notify the Board and the Board shall use reasonable endeavours to convene a Board Meeting to consider the matter prior to the proposed investment decision being implemented. 4. Administration and other facilities ----------------------------------- The Manager shall provide the Company with the following services and facilities: (a) office facilities at 30 Queen Anne's Gate, London SW1H 9AL or such other office as may be agreed by the Company with the Manager and such office shall be used as the registered and principal office of the Company and there shall be available there a suitable room (upon the giving of not less than five days' prior notice or such shorter notice as may be agreed from time to time) for the holding of meetings of the Board but nothing in this Agreement shall be construed, or have effect as constituting the relationship of landlord and tenant between the Manager and the Company and the Company shall be a bare licensee of the Manager; (b) all financial, accountancy, secretarial, clerical and other administrative services of any kind necessary for the conduct of the affairs of the Company; (c) keeping on behalf of the Company such books, records and statements to give a complete record of all transactions carried out by the Company in relation to the investment, realisation and re-investment of the Portfolio and such other books, records and statements as may be required to give a complete record of all other transactions carried out by the Company and as will enable the Company to publish yearly and half-yearly the report and accounts of the Company as required by the regulations of The Stock Exchange; Page 59 of 258 Pages (d) acting as Secretary to the Company, attending all meetings of the Board and performing all the duties reasonably expected of a Company Secretary including liaison with The Stock Exchange, preparation and delivery of returns of The Registrar of Companies and the maintenance of all statutory books other than the register of members; (e) all necessary equipment and personnel with a proper and adequate standard of proficiency and experience to enable the Manager to carry out its functions under this Agreement; and (f) the Manager shall permit such of its employees (if any) as the Company may reasonably request to be Directors of the Company. 5. Ancillary Powers of Manager --------------------------- The Manager may on behalf of the Company in respect of Relevant Investments: (a) issue orders and instructions to the Company's bankers and custodians with respect to the disposition of securities and moneys of the Company provided always that any such disposition shall at all times be subject to and effected in accordance with the arrangements for the time being in force between the Company and its bankers and custodians; (b) exercise any voting rights attached to the securities included in the Investments in pursuance of the policy agreed and established by the Board from time to time; and (c) issue instructions to and consult the auditors and legal advisers of the Company regarding any matter or thing relating to Investments including (where the Board thinks fit) institution of legal proceedings. 6. Further obligations of the Manager ---------------------------------- (1) The Manager shall, and shall procure that its representatives, employees and delegates shall, obey and comply with all lawful orders and directions in relation to the Manager's obligations under this Agreement given to it or them from time to time by the Board and shall observe and comply with the Memorandum and Articles of Association of the Company as from time to time amended and with all resolutions of the Board or the Company of which they are informed. (2) In particular, all activities engaged in by the Manager or any representative, employee or delegate of the Manager on behalf of the Company shall at all times be subject to the overall control of and review by the Board and without limiting the generality of the foregoing the Board shall set out the investment policy of the Company specifying the manner in which it wishes the Manager to give effect to such policies. (3) The Board shall instruct the Manager as to the exercise of the voting rights attached to the securities in the Portfolio and may: Page 60 of 258 Pages (a) prohibit the Manager from investing for the account of the Company in any particular security or class of securities; (b) require the Manager to sell any security or class of securities or (subject to the availability of funds) to purchase any security or class of securities; and (c) withdraw any part of the assets of the Company from the management of the Manager (but without thereby reducing the fee payable to the Manager under this Agreement) for any reason whatsoever. 7. Custody ------- (1) Unless it receives contrary instructions from the Company, the Manager shall make arrangements for the safekeeping of all cash, securities or other assets in the Portfolio for the account of the Company in accordance with this Clause 7 provided that the obligations of the Manager under this Clause 7 shall not apply in relation to any cash or other assets of the Company until the cash or assets concerned have been made available to the Manager following execution of this Agreement. Insofar as the Manager holds assets comprised in the Portfolio (or documents of title relating to such assets), it shall do so separately from its own assets and on trust for the Company. (2) The Manager shall arrange for (i) any uninvested cash to be held in the Company's name in one or more accounts with Bank of Scotland or other first class banks approved by the Company and (ii) all securities to be held in custody accounts in the Company's name at Bank of Scotland or other reputable custodians approved by the Company. (3) The Manager shall make arrangements for: (a) the collection of all income and principal with respect to the Portfolio and credit cash receipts to the bank accounts referred to above; (b) the exchange of securities where the exchange is purely ministerial (including the exchange of temporary securities for those in definitive form and the exchange of warrants for, or other documents of entitlement to securities for, the securities themselves); (c) the surrender of securities at maturity or when called for redemption against payment therefor. (4) The Manager shall notify any bank or custodian holding property comprised in the Portfolio that it is not the Manager's property. (5) The Manager shall have no right of lien or set-off or any right of retention with respect to any Investments held in the Portfolio. Page 61 of 258 Pages (6) All proxies or similar requests for consent and all notices (other than of a routine or immaterial nature) received by the manager relating to securities held in the Portfolio are to be forwarded to the Company or are to be dealt with in accordance with instructions given by the Company from time to time. 8. Management charge and expenses ------------------------------ (1) The Company shall pay to the Manager in respect of each financial period of the Company a fee for its services the amount of which shall be equal to the difference between (a) 1% of Shareholders Funds (as defined in the Secondment Services Agreement in its original form) of the Company and its subsidiaries on the last day of the preceding financial period of the Company and (b) the amount of the Fee payable to GIM pursuant to Clause 5(1) of the Secondment Services Agreement in respect of that financial period provided that the amount of the fee payable to the Manager pursuant to this sub-clause in respect of any financial period of the Company shall not be less than (Pounds) 75,000. (2) In addition, the Company shall pay to the Manager a transaction fee of (Pounds) 200 per transaction effected for the Portfolio by the Manager, as evidenced by a contract note. (3) The Company shall bear the expenses of any kind incurred by or on behalf of the Manager in the carrying out of its duties and the provision of services and facilities hereunder, save for telex, telephone and other routine communication charges and the costs of providing normal office accommodation and secretarial and clerical staff for the normal performance of those duties. (4) The fee payable pursuant to sub-clause (1) of this Clause 8 shall be paid to the Manager by the Company (unless otherwise agreed) in quarterly instalments in arrears on 30th April, 31st July, 31st October and 31st January in each year (in this sub-clause referred to as "Payment Dates") but if the amount of the fee in respect of any financial period is not ascertained by 30th April in that financial period, the Company shall pay to the Manager (Pounds) 18,750 on each of the Payment Dates and upon the amount of the fee being ascertained the Company shall pay any further amount due to the Manager in equal instalments on the Payment Dates provided that any instalment in respect of a Payment Date that has already passed shall be immediately payable to the Manager (and a pro rata fee shall be payable for any part of a quarter for which this Agreement is in force). (5) The Manager shall also be entitled to additional fees, calculated on a time basis, for services provided in connection with any transactions involving the Company and/or any of its subsidiaries outside the ordinary course of business including in particular any issue of shares, debentures or other securities or any reorganisation, redemption, consolidation, sub-division or other alteration of capital or any takeover, acquisition or disposal of or by the Company and/or any of its subsidiaries. (6) An amount equal to any amount payable to the Manager pursuant to this Clause shall be paid by the Company to the Manager promptly after delivery to the Company by the Manager of an invoice giving reasonable details in respect thereof. Notwithstanding the foregoing, the Manager shall be entitled, without delivery of an invoice as Page 62 of 258 Pages aforesaid, to charge any such amount to the Portfolio subject to notifying the Company in writing of the amount thereof promptly thereafter. 9. Subsidiaries ------------ If the Company has at any time one or more subsidiaries then, unless otherwise directed by the Board, the Manager shall in addition provide the same services to such subsidiaries as it provides hereunder to the Company. 10. Freedom to act -------------- The services of the Manager to the Company under this Agreement shall not be exclusive and the Manager shall be free to render similar services to others and nothing in this Agreement shall preclude the Manager from having dealings with or on behalf of the Company either on its own account or on account of its clients or others or make it accountable to the Company in respect of any product or commission from any such dealings. 11. Termination ----------- (1) If: (a) either party shall commit any substantial or continuing material breach of this Agreement and (where such breach is capable of remedy) fail to remedy such a breach within thirty days of being given written notice of it by the other party; or (b) either party shall have a receiver or administrator appointed over the whole or any party of their assets or a resolution is passed or an order made for the winding-up of such party other than as mentioned in sub-clause (2) below; the other party shall be entitled to terminate the appointment under this Agreement forthwith by giving written notice of termination to such party. (2) On termination of the appointment of the Manager, the Manager shall be entitled to receive all fees and other money accrued due up to the date of such termination but shall not be entitled to compensation in respect of termination (except where such appointment is terminated by the Manager in accordance with sub-clause (1)(a) of this Clause or by the Company in breach of Clause 2) and the Manager shall deliver to the Company or as it shall direct, all books of account, records, registers, correspondence, documents and assets belonging to the Company or any subsidiary in possession of or under the control of the Manager and take all necessary steps to vest in the Company any assets previously held in the name of or to the order of the Manager on behalf of the Company or any subsidiary. (3) The Manager shall also be entitled to terminate its appointment on giving four months' notice to the Company if either the Board fails to procure that Christopher Mills consults with the Manager in accordance with Clause 3(2) or if the Manager has Page 63 of 258 Pages objected to an investment proposed by Christopher Mills and has given notice to the Board under Clause 3(2), but the Board has approved the proposal. 12. Confidentiality and records --------------------------- (1) Neither party shall during the continuance of this Agreement or after its termination disclose to any person, firm or company whatsoever (except with the authority of the other party or unless ordered to do so by The Stock Exchange, the Panel on Takeovers and Mergers or by a regulatory body or court of competent jurisdiction) any information relating to the business, Portfolio, finances or other matters of a confidential nature of the other party of which it may in the course of its duties under this Agreement or otherwise become possessed and each party shall use all reasonable endeavours to prevent any such disclosure. (2) All books, statistical records, accounts, contract notes, correspondence and other documents relating to the business and affairs of the Company shall be the exclusive property of the Company and the Manager shall when reasonably requested produce the same to the Company or its employees, agents or auditors together with any information within the knowledge of the Manager in relation thereto. 13. Reports and valuations ---------------------- (1) The Manager shall provide the Company with regular monthly statements and valuations in respect of the Portfolio as at dates selected by the Company provided that the Company shall supply valuations to the Manager in respect of unlisted investments (not being Relevant Investments). The valuations provided by the manager shall be in accordance with procedures and on a basis reviewed by the Company's auditors and as required by law or the regulations of The Stock Exchange. The reference currency will be pounds sterling for such documents. (2) Statements of the contents of the Portfolio prepared in accordance with the IMRO Rules will be provided on a quarterly basis in respect of quarterly periods of account. 14. Notices ------- Any notice to be given under this Agreement may be served personally or by post at the registered office of the party to be served and in the case of service of first class post shall be deemed duly served twenty-four hours after posting and proof of posting shall be proof of delivery. 15. Liability and Indemnity ----------------------- (1) Subject to the terms of this Agreement, the Manager shall be under no liability to the Company for any loss, costs or damages which may arise in connection with the conduct of its duties hereunder or the custody of the Investments or for any depreciation in the value of any Investments or their safe custody unless due to wilful default or negligence on its part. Page 64 of 258 Pages (2) The Company shall indemnify the Manager and keep it indemnified against any costs, claims, demands or proceedings made by any person and in any way arising from its appointment hereunder unless due to wilful default or negligence on its part. The Manager agrees promptly to inform the Company in writing of any event which comes to its notice as a result of which the Company might become liable to indemnify the Manager under this Clause. 16. Assignment ---------- Neither party hereto shall be entitled to assign or otherwise part with any interest in this Agreement unless the prior written consent of the other has been obtained except that, if either party transfers the whole or a substantial part of its undertaking and property to another company as part of a reconstruction or amalgamation, that party may by written notice to the other transfer all its rights and obligations under this Agreement to that other company. 17. Governing law ------------- This Agreement is governed by and shall be construed in accordance with the laws of England to the jurisdiction of whose Courts the parties irrevocably submit. IN WITNESS of which each of the parties has executed this Agreement on the date first mentioned on page 1. SIGNED by H. Gittes ) ) /s/ H. Gittes on behalf of CONSOLIDATED ) VENTURE TRUST PLC in the ) presence of: ) SINGED by R.C.O. Hellyer ) ) /s/ R.C.O. Hellyer on behalf of J O HAMBRO & ) PARTNERS LIMITED ) in the presence of: ) Page 65 of 258 Pages EX-99.(C) 4 CUSTODY AGRMNT. J O HAMBRO & AMER. OPP. TRUST ADMINISTRATION, MANAGEMENT AND CUSTODY AGREEMENT BETWEEN AMERICAN OPPORTUNITY TRUST AND J O HAMBRO & PARTNERS Page 66 of 258 Pages Dated 7th January 1993 ---------------------- LEVERAGED OPPORTUNITY TRUST PLC and J O HAMBRO & PARTNERS LIMITED ADMINISTRATION, MANAGEMENT AND CUSTODY AGREEMENT Allen & Overy London Page 67 of 258 Pages THIS AGREEMENT is made on 7th January 1993 BETWEEN:
(1) LEVERAGED OPPORTUNITY TRUST PLC of 11 Devonshire Square, London EC2M 4YR (the "Company"); and ------- (2) J O HAMBRO & PARTNERS LIMITED of 30 Queen Anne's Gate, London SW1H 9AL (the "Manager"). ------- NOW IT IS HEREBY AGREED as follows: 1. Interpretation -------------- (1) In this Agreement: "Board" ----- means the Board of Directors of the Company, or a committee thereof or (where the context so admits) a Director of the Company, duly authorized; "IMRO" ---- means the Investment Management Regulatory Organization Limited or its successors from time to time; "IMRO Rules" ---------- means the rules of IMRO from time to time applicable; "Investments" ----------- includes any asset, right or interest falling within any paragraph in Part I of Schedule I to the Financial Services Act 1986 and any other asset, right or interest in respect of property of any kind and, without prejudice to the foregoing, wherever situate and whether or not producing income; "Portfolio" --------- means the Investments from time to time owned by the Company; "Stock Exchange" -------------- means The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited;
Page 68 of 258 Pages
"subsidiary" ---------- shall have the meaning ascribed thereto by Section 736 of the Companies Act 1985. (2) References to persons include bodies corporate and unincorporated associations and references to companies include any bodies corporate. (3) Any reference to a statutory provision includes any statutory modification or re-enactment of it for the time being in force. (4) Subclauses (1) to (3) above apply unless the contrary intention appears. (5) The headings in this Agreement do not affect its construction. (6) References to amounts payable by the Company shall be exclusive of value added tax thereon so that value added tax shall be payable in addition if and to the extent chargeable. 2. Appointment ----------- The Company hereby appoints the Manager to be the investment manager and administrator of the Company to provide the services and facilities mentioned below with effect from the date of execution of this Agreement, such appointment to continue (unless previously terminated under Clause 11 below) until terminated by either party upon the expiry of not less than two years' written notice given to the other. 3. Investment Management --------------------- (1) The Manager shall undertake with regard to such Investments as may from time to time be notified to and agreed with the Manager (the "Relevant Investments"), the duties normally performed by investment managers, subject to the policy directions and overall guidelines from time to time notified to the Manager by the Board, and in particular but without in any way prejudicing the generality of the foregoing shall on behalf of the Company:
Page 69 of 258 Pages
(a) keep under constant review the Relevant Investments from time to time held by the Company; (b) be entitled (at its absolute discretion and without obtaining the prior written permission of the Company) to withdraw deposits, to effect purchases and sales and other transactions in respect of Relevant Investments and subscriptions to issues of Relevant Investments, to enter into underwriting commitments in relation to Relevant Investments on behalf of the Company and otherwise to invest, realise and re-invest the Portfolio in relation to Relevant Instruments and exercise all rights attaching to Relevant Investments comprised therein and in each such case to charge the amounts payable to the Portfolio; (c) search out and evaluate investment opportunities in Relevant Investments for the Company; (d) analyse the progress of companies in which the Company has made Relevant Investments; (e) submit to the Board such reports and information regarding Relevant Investments as the Board shall reasonably require; and (f) recommend to the Board any future developments or changes to the investment policy of the Company which the Manager may consider to be advisable. (2) The Board shall procure that Christopher Mills consults with the Manager prior to making investment decisions on behalf of the Company relating to unlisted investments. If the Manager objects to any such investment decisions proposed by Christopher Mills it may notify the Board and the Board shall use reasonable endeavours to convene a Board meeting to consider the matter prior to the proposed investment decision being implemented. 4. Administration and other facilities ----------------------------------- The Manager shall provide the Company with the following services and facilities: (a) office facilities at 30 Queen Anne's Gate, London SW1H 9AL or such other office as may be agreed by the Company with the Manager and such office
Page 70 of 258 Pages
shall be used as the registered and principal office of the Company and there shall be available there a suitable room (upon the giving of not less than five days' prior notice or such shorter notice as may be agreed from time to time) for the holding of meetings of the Board but nothing in this Agreement shall be construed or have effect as constituting the relationship of landlord and tenant between the Manger and the Company and the Company shall be a bare licensee of the Manager; (b) all financial, accountancy, secretarial, clerical and other administrative services of any kind necessary for the conduct of the affairs of the Company; (c) keeping on behalf of the Company such books, records and statements to give a complete record of all transactions carried out by the Company in relation to the investment, realisation and re- investment of the Portfolio and such other books, records and statements as may be required to give a complete record of all other transactions carried out by the Company and as will enable the Company to publish yearly and half-yearly the report and accounts of the Company as required by the regulations of The Stock Exchange; (d) acting as Secretary to the Company, attending all meetings of the Board and performing all the duties reasonably expected of a Company Secretary including liaison with The Stock Exchange, preparation and delivery of returns of The Registrar of Companies and the maintenance of all statutory books other than the register of members; (e) all necessary equipment and personnel with a proper and adequate standard of proficiency and experience to enable the Manger to carry out its functions under this Agreement; and (f) the Manager shall permit such of its employees (if any) as the Company may reasonably request to be Directors of the Company. 5. Ancillary Powers of Manager --------------------------- The Manager may on behalf of the Company in respect of Relevant Investments:
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(a) issue orders and instructions to the Company's bankers and custodians with respect to the disposition of securities and moneys of the Company provided always that any such disposition shall at all times be subject to and effected in accordance with the arrangements for the time being in force between the Company and its bankers and custodians; (b) exercise any voting rights attached to the securities included in the Investments in pursuance of the policy agreed and established by the Board from time to time; and (c) issue instructions to and consult the auditors and legal advisers of the Company regarding any matter or thing relating to Investments including (where the Board thinks fit) institution of legal proceedings. 6. Further obligations of the Manager ---------------------------------- (1) The Manager shall, and shall procure that its representatives, employees and delegates shall, obey and comply with all lawful orders and directions in relation to the Manager's obligations under this Agreement given to it or them from time to time by the Board and shall observe and comply with the Memorandum and Articles of Association of the Company as from time to time amended and with all resolutions of the Board or the Company of which they are informed. (2) In particular, all activities engaged in by the Manager or any representative, employee or delegate of the Manager on behalf of the Company shall at all times be subject to the overall control of and review by the Board and without limiting the generality of the foregoing the Board shall set out the investment policy of the Company specifying the manner in which it wishes the Manger to give effect to such policies. (3) The Board shall instruct the Manager as to the exercise of the voting rights attached to the securities in the Portfolio and may: (a) prohibit the Manager from investing for the account of the Company in any particular security or class of securities;
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(b) require the Manager to sell any security or class of securities or (subject to the availability of funds) to purchase any security or class of securities; and (c) withdraw any part of the assets of the Company from the management of the Manager (but without thereby reducing the fee payable to the Manager under this Agreement) for any reason whatsoever. 7. Custody ------- (1) Unless it receives contrary instructions from the Company, the Manager shall make arrangements for the safekeeping of all cash, securities or other assets in the Portfolio for the account of the Company in accordance with this Clause 7 provided that the obligations of the Manager under this Clause 7 shall not apply in relation to any cash or other assets of the Company until the cash or assets concerned have been made available to the Manager following execution of this Agreement. Insofar as the Manager holds assets comprised in the Portfolio (or documents of title relating to such assets), it shall do so separately from its own assets and on trust for the Company. (2) The Manager shall arrange for (i) any uninvested cash to be held in the Company's name in one or more accounts with Bank of Scotland or other first class banks approved by the Company and (ii) all securities to be held in custody accounts in the Company's name at Bank of Scotland or other reputable custodians approved by the Company. (3) The Manager shall make arrangements for: (a) the collection of all income and principal with respect to the Portfolio and credit cash receipts to the bank accounts referred to above; (b) the exchange of securities where the exchange is purely ministerial (including the exchange of temporary securities for those in definitive form and the exchange of warrants for, or other documents of entitlement to securities for, the securities themselves); (c) the surrender of securities at maturity or when called for redemption against payment therefor.
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(4) The Manager shall notify any bank or custodian holding property comprised in the Portfolio that it is not the Manager's property. (5) The Manager shall have no right of lien or set-off or any right of retention with respect to any Investments held in the Portfolio. (6) All proxies or similar requests for consent and all notices (other than of a routine or immaterial nature) received by the Manager relating to securities held in the Portfolio are to be forwarded to the Company or are to be dealt with in accordance with instructions given by the Company from time to time. 8. Management charge and expenses ------------------------------ (1) The Company shall pay to the Manager as remuneration for the provision of its services hereunder a fee payable annually in arrears on 31st December in each year and calculated at the rate of 0.25 per cent per annum (plus value added tax) by reference to the Net Asset Value (calculated on a gross assets basis) as at 30th September, the first such payment, being a pro rata part of the annual fee, to be made on 31st December 1993 in respect of the period from the date of this Agreement to 30th September, 1993. On termination of this Agreement a pro rata fee shall be payable for any part of the year to 30th September for which this Agreement is in force, payable on the 31st December next following termination. (2) The Company shall bear the expenses of any kind incurred by or on behalf of the Manager in the carrying out of its duties and the provision of services and facilities hereunder, save for telex, telephone and other routine communication charges and the costs of providing normal office accommodation and secretarial and clerical staff for the normal performance of those duties. (3) The Manager shall also be entitled to additional fees, calculated on a time basis, for services provided in connection with any transactions involving the Company and/or any of its subsidiaries outside the ordinary course of business including in particular any issue of shares, debentures or other securities or any reorganization, redemption, consolidation, sub-division or other alteration of capital or any takeover, acquisition or disposal of or by the Company and/or any of its subsidiaries.
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(4) An amount equal to any amount payable to the Manager pursuant to this Clause shall be paid by the Company to the Manager promptly after delivery to the Company by the Manager of an invoice giving reasonable details in respect thereof. Notwithstanding the foregoing, the Manager shall be entitled, without delivery of an invoice as aforesaid, to charge any such amount to the Portfolio subject to notifying the Company in writing of the amount promptly thereafter. (5) For the purpose of this Clause 8 "Net Asset Value" shall mean the amount of the fixed and current tangible assets of the Company (other than shares in its subsidiaries) and its subsidiaries after deducting therefrom an amount equal to the current liabilities and the borrowings or other indebtedness in the nature of borrowings (except for borrowings repayable after an initial term of more than three years) of the Company and its subsidiaries as reasonably determined by the Manager. 9. Subsidiaries ------------ If the Company has at any time one or more subsidiaries then, unless otherwise directed by the Board, the Manager shall in addition provide the same services to such subsidiaries as it provides hereunder to the Company. 10. Freedom to act -------------- The services of the Manager to the Company under this Agreement shall not be exclusive and the Manager shall be free to render similar services to others and nothing in this Agreement shall preclude the Manager from having dealings with or on behalf of the Company either on its own account or on account of its clients or others or make it accountable to the Company in respect of any profit or commission from any such dealings. 11. Termination ----------- (1) If: (a) either party shall commit any substantial or continuing material breach of this Agreement and (where such breach is capable of remedy) fail to remedy such a breach within thirty days of being given written notice of it by the other party; or
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(b) either party shall have a receiver or administrator appointed over the whole or any part of their assets or a resolution is passed or an order made for the winding-up of such party other than as mentioned in sub-clause (2) below, the other party shall be entitled to terminate the appointment under this Agreement forthwith by giving written notice of termination to such party. (2) On termination of the appointment of the Manager, the Manager shall be entitled to receive all fees and other money accrued due up to the date of such termination but shall not be entitled to compensation in respect of termination (except where such appointment is terminated by the Manager in accordance with sub-clause (1)(a) of this Clause or by the Company in breach of Clause 2) and the Manager shall deliver to the Company or as it shall direct, all books of account, records, registers, correspondence, documents and assets belonging to the Company or any subsidiary in possession of or under the control of the Manager and take all necessary steps to vest in the Company any assets previously held in the name of or to the order of the Manager on behalf of the Company or any subsidiary. (3) The Manager shall also be entitled to terminate its appointment on giving four months' notice to the Company if either the Board fails to procure that Christopher Mills consults with the Manager in accordance with Clause 3(2) or if the Manager has objected to an investment proposed by Christopher Mills and has given notice to the Board under Clause 3(2), but the Board has approved the proposal. 12. Confidentiality and records --------------------------- (1) Neither party shall during the continuance of this Agreement or after its termination disclose to any person, firm or company whatsoever (except with the authority of the other party or unless ordered to do so by The Stock Exchange, the Panel on Takeovers and Mergers or by a regulatory body or court of competent jurisdiction) any information relating to the business, Portfolio, finances or other matters of a confidential nature of the other party of which it may in the course of its duties under this Agreement or otherwise become possessed and each party
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shall use all reasonable endeavors to prevent any such disclosure. (2) All books, statistical records, accounts, contract notes, correspondence and other documents relating to the business and affairs of the Company shall be the exclusive property of the Company and the Manager shall when reasonably requested produce the same to the Company or its employees, agents or auditors together with any information within the knowledge of the Manager in relation thereto. 13. Reports and valuations ---------------------- (1) The Manager shall provide the Company with regular monthly statements and valuations in respect of the Portfolio as at dates selected by the Company provided that the Company shall supply valuations to the Manager in respect of unlisted investments (not being Relevant Investments). The valuations provided by the Manager shall be in accordance with procedures and on a basis reviewed by the Company's auditors and as required by law or the regulations of The Stock Exchange. The reference currency will be pounds sterling for such documents. (2) Statements of the contents for the Portfolio prepared in accordance with the IMRO Rules will be provided on a quarterly basis in respect of quarterly periods of account. 14. Notices ------- Any notice to be given under this Agreement may be served personally or by post at the registered office of the party to be served and in the case of service of first class post shall be deemed duly served twenty- four hours after posting and proof of posting shall be proof of delivery. 15. Liability and Indemnity ----------------------- (1) Subject to the terms of this Agreement, the Manager shall be under no liability to the Company for any loss, costs or damages which may arise in connection with the conduct of its duties hereunder or the custody of the Investments or for any depreciation in the value of any Investments or their safe custody unless due to wilful default or negligence on its part.
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(2) The Company shall indemnify the Manager and keep it indemnified against any costs, claims, demands or proceedings made by any person and in any way arising from its appointment hereunder unless due to wilful default or negligence on its part. The Manager agrees promptly to inform the Company in writing of any event which comes to its notice as a result of which the Company might become liable to indemnify the Manager under this Clause.
Page 78 of 258 Pages 16. Assignment ---------- Neither party hereto shall be entitled to assign or otherwise part with any interest in this Agreement unless the prior written consent of the other has been obtained except that, if either party transfers the whole or a substantial part of its undertaking and property to another company as part of a reconstruction or amalgamation, that party may by written notice to the other transfer all its rights and obligations under this Agreement to that other company. 17. Governing law ------------- This Agreement is governed by and shall be construed in accordance with the laws of England to the jurisdiction of whose Courts the parties irrevocably submit. IN WITNESS of which each of the parties has executed this Agreement on the date first mentioned on page 1. SIGNED by J.J. Nelson ) ) /s/ James J. Nelson on behalf of ) LEVERAGED OPPORTUNITY TRUST PLC ) in the presence of: ) SIGNED by R.C.O. Hellyer ) ) /s/ R.C.O. Hellyer on behalf of ) J O HAMBRO & PARTNERS LIMITED ) in the presence of: ) Page 79 of 258 Pages EX-99.(D) 5 INVESTMENT AGRMNT. J O HAMBRO & SEAWAY LTD. CLIENT AGREEMENT SEAWAY LIMITED Page 80 of 258 Pages 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. Page 81 of 258 Pages 3. JOHP shall not be obliged to undertake the management of investments the management of which would in its opinion be onerous to it. DEALING TERMS 4. Subject as set out in paragraph 9, in effecting transactions for the Portfolio JOHP shall seek best execution at all times and may (subject to the investment policy set out in Part I of Schedule II) deal on such markets or exchanges and with such counterparties as it thinks fit. The Client agrees that all such transactions will be effected in accordance with the rules and regulations of the relevant market or exchange and that JOHP may take all such steps as may be required or permitted by such rules and regulations and/or by good market practice. 5. The Client's investments or documents of title or certificates evidencing title to investments or any other property belonging to the Client will not be lent by JOHP to a third party except as otherwise agreed between the Client and JOHP in writing. 6. JOHP may supplement the funds in the Portfolio by borrowing on the Client's behalf but only for the purpose of funding short-term deficiencies arising in the normal course of JOHP's duties hereunder to an extent which is not material in the context of the Portfolio taken as a whole. JOHP will not borrow money on the Client's behalf against the security of any of the Client's investments, documents of title or property. 7. JOHP may commit the Client to underwrite any issue or offer for sale of securities without the Client's prior written consent. 8. JOHP may act as principal in any transaction for the Client provided that JOHP shall secure for the Client best execution of such transaction. 9. Subject to the IMRO Rules, JOHP may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. 10. JOHP has the right under this Agreement to effect transactions on the Client's behalf in investments the price of which may be being stabilised. The attention of the Client is referred to the statement contained in Schedule II relating to stabilisation. Signature of this Agreement by or on behalf of the Client shall act as acknowledgment by the Client of receipt of such statement prior to entry into this Agreement. CONFLICTS OF INTEREST 11. Subject to paragraphs 12 and 13, JOHP shall not undertake any transactions on the Client's behalf in which JOHP has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHP's duty to the Client unless that interest or relationship is disclosed in writing to the Client. 12. The Client's Portfolio may contain securities of which the issue or offer for sale is underwritten, managed or arranged by an Associate (as defined in the Rules of IMRO) of JOHP during the preceding twelve months. Page 82 of 258 Pages 13. The Client understands that JOHP's directors or staff may from time to time hold shares or securities including holdings that may be in the Portfolio, and that JOHP's directors or staff may from time to time be directors of companies whose shares are held in the Portfolio. 14. The Client acknowledges that JOHP may acquire or dispose of on the Client's behalf shares or units in any fund, company, trust or Collective Investment Scheme (as defined by the Rules of IMRO) under JOHP's management (or in a fund, company, trust or Collective Investment Scheme connected with JOHP) if JOHP considers such an investment to be appropriate for inclusion in or exclusion from the Portfolio. CUSTODIAL SERVICES 15. (a) Save where the Client has notified JOHP in accordance with paragraph 15(b), in those cases where the Client is situated in the United Kingdom registerable investments will be registered in the name of an Eligible Custodian (as defined in the Rules of IMRO) situated in the United Kingdom and nominated by JOHP. (b) In those cases where the Client is situated overseas or where the Client so requests by notice in writing to JOHP, registerable investments will be registered in the name of an Eligible Custodian situated outside the United Kingdom and nominated by JOHP. (c) All documents of title (including those in bearer form) will be retained in the custody of an Eligible Custodian nominated by JOHP and situated in the United Kingdom or overseas as applicable. (d) None of the Eligible Custodians as aforesaid shall be Associates of JOHP. However, the Client's registerable investments may at any time be registered in the name of a nominee company which is an Associate of JOHP and Client's documents of title may be held by that Associate at any time after JOHP shall have given the Client written notice of its intention to do so. Such notice shall specify the nature of its association with such Associate. ACCOUNTS, INTEREST AND DIVIDENDS 16. The following Client accounts, together with such others that may be required, will be maintained by JOHP. (1) INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 5 and 6, JOHP shall not lend the Client's investments to any third party and shall not borrow money on the Client's behalf against the security of the Client's investments. (2) CAPITAL ACCOUNT Page 83 of 258 Pages All uninvested cash will be held in this account by a bank chosen by JOHP. The account will be debited with the cost of purchases on the Client's behalf and with sums due and payable by the Client to JOHP and will be credited with the net proceeds of sales on the Client's behalf. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will be paid on sums standing to the credit of the account and held on the Client's behalf at the prevailing market rate. The interest will be paid quarterly and will be credited to the Income Account on the Client's behalf. (3) SETTLEMENT ACCOUNT Money debited to the Capital Account in respect of the cost of purchases made on the Client's behalf and money received and receivable upon settlement of each sale made on the Client's behalf will be credited to this account and held there until the relevant settlement date. (4) INCOME ACCOUNT Dividends and interest received on investments within the Portfolio will be credited to this account. Balances on the account will be paid away quarterly in accordance with the Client's instructions or, in the absence of such instructions, will be transferred quarterly to the Capital Account as soon as reasonably practicable after the last day of each such quarter being 5th April, 30th June, 5th October and 31st December in each year. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will not be paid on monies held in this account. (e) OFF-SHORE FUNDS In those cases where the Client is situated overseas or if the Client notifies JOHP in writing that the Client wishes cash in the Portfolio to be held outside the United Kingdom, JOHP will be (subject to applicable laws and regulations) hold such cash in a bank account outside the United Kingdom. 17. The Client may at any time instruct JOHP to realize any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. 18. JOHP shall maintain separate ledger accounts on the Client's behalf. All debits from and credits to the Investment Account and/or Capital Account and/or Income Account on the Client's behalf shall be recorded in the ledger accounts, and statements of account showing all transactions, payments and receipts up to and including 5th April of each year will be sent to the Client as soon as reasonably practicable after that date. COMMUNICATIONS Page 84 of 258 Pages 19. In the interests of proper administration of the Portfolio and for related investment purposes JOHP, its representatives or employees, may call upon the Client by telephone, visit or otherwise communicate orally with the Client without express invitation. The Client's attention is drawn to the fact that the Client will forfeit any right conferred by section 56 of the Financial Services Act 1986 to treat as unenforceable any investment agreement entered into in the course of or in consequence of such a call. ADMINISTRATION 20. Contract notes in respect of every purchase and sale on the Client's behalf will be sent to the Client before the close of business on the day next following the day on which the transaction was effected. 21. JOHP will on the Client's request forward details of all transactions on the Client's behalf to the Client's tax advisor without additional charge. 22. The Client may (upon giving reasonable notice) inspect all copy contract notes, vouchers and copies of entries in books or electronic recording media kept by JOHP or to which JOHP has access relating to the transactions effected by JOHP on the Client's behalf and those records will be maintained by JOHP or JOHP will ensure that they are maintained for not less than seven years from the date of the relevant transaction. 23. All documents will be sent to the Client at the address given above unless and until otherwise directed in writing. The Client agrees that it will immediately notify JOHP in writing of any change of address, and that JOHP will not be responsible for any consequences which may arise from failure to do so. REVIEWS AND VALUATIONS 24. JOHP will prepare reviews of the Portfolio incorporating an up-to-date valuation of each investment comprised in the Portfolio and a statement of the basis on which it was valued on a six monthly basis or at such other frequency as may be agreed between JOHP and the Client. Such reviews shall be prepared as at such half yearly or other dates as shall be agreed between JOHP and the client from time to time (each such date being referred to as a "Valuation Date"), and JOHP will send such reviews to the Client within twenty-five business days of each Valuation Date. 25. On each Valuation Date cash will be valued at its face value and each investment will be valued at its middle market price on the relevant stock exchange at the close of business on such day or (if not a business day) on the nearest prior business day as is supplied by "Exshare" or any other suitable information service chosen by JOHP (which figures shall be binding save for manifest error). For the purpose of valuing in sterling any foreign currency or any security listed on a foreign stock exchange the price of which is quoted in currency other than sterling, the valuation and middle market exchange rates supplied by "Exshare" or any other suitable information service chosen by JOHP shall be applied. In the absence of that valuation or exchange rate, the middle market price as determined by the Daily Official List of The Stock Exchange or the equivalent list for any relevant stock exchange will be applied. If none of the foregoing methods of valuation are available, the investments in question will be Page 85 of 258 Pages 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 Page 86 of 258 Pages commissions which it receives in the course of its dealing on the Client's behalf: all such benefits and receipts shall supplement any other remuneration receivable by JOHP in connection with transactions effected by JOHP with or for the Client under this or any other agreement with the Client and the Client consents to all such benefits and receipts as are referred to above without prior disclosure of the same to the Client on a case-by-case basis provided that JOHP undertakes to secure for the Client best execution of all transactions affected with or through a party from whom JOHP receives such benefits and commissions, disregarding any benefit which the Client might obtain directly or indirectly as a result of such arrangements. 31. JOHP shall be entitled to alter the manner of computing or charging its fees, commissions and expenses or of paying interest on the money held on the Client's behalf in the Capital Account (including with prejudice to the generality of the foregoing its scale rates and charges) by giving one month's prior notice in writing to the Client. RESPONSIBILITY AND INSURANCE 32. JOHP will indemnify the Client in respect of any loss incurred as a result of negligence, wilful default or fraud by JOHP or any of its employees. Subject to the above, JOHP will not be responsible or liable for any claim, loss, damage, expense or costs arising by reason of any of the following: (1) any investment decision taken and acted upon in accordance with the terms of this Agreement; or (2) any delay or default in the performance of its obligations under this Agreement arising in consequence of any event or circumstance beyond the reasonable control of JOHP; or (3) any act or omission on the part of any of the banks or nominee companies controlled by them or other eligible custodians as referred to in paragraph 15 or any other person to which any of them shall have delegated its function or on the part of any other third party whatsoever; or (4) any consequential loss suffered in consequence of any act or omission of JOHP or any breach of JOHP of any term of this Agreement. 33. The Client agrees to indemnify and keep indemnified JOHP from and against all demands, claims, liabilities, losses, damages, costs and expenses whatsoever incurred by JOHP arising out of the breach by the Client of any warranty or by reason of any failure by the Client to comply with and/or perform any of the terms and conditions contained in this Agreement. 34. Where the Client is a joint account (whether or not a trust account) JOHP shall unless and until otherwise directed in writing by all the persons named in the joint account, be entitled to act on the instructions of any of them and shall not in any whatsoever be liable to the others for doing so. Page 87 of 258 Pages 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: Page 88 of 258 Pages (1) the relevant proportion of the management fee, corresponding to that part of the period ending on a Valuation Date by reference to which fees are payable, which has expired when this Agreement is terminated; (2) any additional expenses which JOHP necessarily incurs in terminating this Agreement; and (3) any losses necessarily realized in settling or concluding outstanding obligations. 42. The death, bankruptcy or other incapacity or, in the case of a body corporate, the cessation of business of the Client or a petition being presented or a meeting being convened to consider a resolution for the liquidation of the Client shall not of itself terminate JOHP's appointment; but JOHP may at its discretion treat its receipt of actual notice of any such events as if it were a written notice of termination from the Client. 43. If the Client is a joint account the Client's obligations under this Agreement shall be joint and several. On the death of any of the persons constituting the Client (being survived by any such other person), the Agreement shall not terminate and, except in the case of trustees, the interest of the deceased in the Portfolio shall automatically enure to the benefit of the survivor(s) unless otherwise specified by notice in writing to JOHP. CLIENT WARRANTIES 44. The Client warrants that the Client is the beneficial owner (or the duly authorized agent of the beneficial owner) of the whole of the Portfolio free from all liens, charges, encumbrances and restrictions on transfer except insofar as advised by the Client to JOHP, and will so remain during the currency of this Agreement. 45. The Client warrants that the Client is empowered to enter into this Agreement without the consent or authority of any other party and in the case of a Client being a body corporate the Client warrants that by entering into this Agreement it is not nor will it be in breach of its Memorandum or Articles of Association or any other relevant document. GENERAL 46. Terms and expressions defined in the rules of IMRO for the time being in force shall where the context so admits bear the same meaning in this Agreement. 47. The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. 48. The Schedules to this Agreement are an integral part of it. 49. If the Client is an individual this Agreement shall be binding on his legal personal representatives. 50. This Agreement is personal to the parties hereto and shall not be capable of assignment. Page 89 of 258 Pages 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 90 of 258 Pages 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. Page 91 of 258 Pages 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. Page 92 of 258 Pages 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 93 of 258 Pages SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 1% per annum on portfolios of up to (Pounds)2,500,000 Large Portfolios (Over (Pounds)2,500,000) - by negotiation COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST 1.25% on transactions up to (Pounds)10,000 0.5% on transactions up to (Pounds)10,000 0.50% thereafter 0.25% on the next (Pounds)40,000 0.125% thereafter
(Minimum commissions (Pounds)30 per contract) All transactions are subject to a handling charge of (Pounds)12.50 per transaction in the case of UK registered securities ((Pounds)20 for non-UK registered securities) VALUE ADDED TAX This will be charged on the fees shown above at the appropriate rates where applicable Page 94 of 258 Pages 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 95 of 258 Pages EX-99.(E) 6 INVESTMENT MGMNT. AGRMNT. J O HAMBRO & PEAK CLIENT AGREEMENT PEAK INVESTMENTS Page 96 of 258 Pages JO HAMBRO & PARTNERS LIMITED ---------------------------- Regulated by IMRO in the conduct of Investment Business THIS INVESTMENT MANAGEMENT AGREEMENT is made the 23rd day of January, 1996 BETWEEN: (1) JO HAMBRO & PARTNERS LIMITED ("JOHP") a member of the Investment Management Regulatory Organization Limited ("IMRO") and regulated in the conduct of investment business by it, whose registered office is at 10 Park Place, London SW1A 1LP; and (2) Peak Investments (portfolio name) ------------------------------------------------------- (hereafter known as the "Client") of 3 Chester Street, London SWIX 7BB ---------------------------------------------------- (address) ------------------------------------------------------- NOW IT IS HEREBY AGREED as follows: APPOINTMENT AND STATUS OF CLIENT 1. The Client, a Private Customer as defined in the Rules of IMRO, hereby appoints JOHP to act as discretionary investment manager, subject to the terms and conditions hereof, in relation to the Client's investments and cash which are from time to time placed under the management of JOHP (the "Portfolio") and JOHP hereby agrees to manage and administer the Portfolio. The appointment will commence on the date on which this Agreement is delivered to JOHP by the Client having been signed first by the Client then by JOHP. The assets comprising the Portfolio and their opening value are set out in Schedule 1. MANAGEMENT OF INVESTMENTS 2. JOHP shall have complete discretion, power and authority to manage the Portfolio and to make investments and changes in investments on the Client's behalf and as the Client's agent within the investment policy agreed between JOHP and the Client and set out in Part 1 of Schedule II. Such policy shall be subject to the guidelines and restrictions set out in Part II of Schedule II and to any guidelines, restrictions and instructions specified in writing from time to time by the Client or by the Client's duly authorized agent (written notice of whose authority shall have been received by JOHP). The Client's attention is specifically drawn to the warnings set out in Part III of Schedule II. Page 97 of 258 Pages 3. JOHP shall not be obliged to undertake the management of investments the management of which would in its opinion be onerous to it. DEALING TERMS 4. Subject as set out in paragraph 9, in effecting transactions for the Portfolio JOHP shall seek best execution at all times and may (subject to the investment policy set out in Part I of Schedule II) deal on such markets or exchanges and with such counterparties as it thinks fit. The Client agrees that all such transactions will be effected in accordance with the rules and regulations of the relevant market or exchange and that JOHP may take all such steps as may be required or permitted by such rules and regulations and/or by good market practice. 5. The Client's investments or documents of title or certificates evidencing title to investments or any other property belonging to the Client will not be lent by JOHP to a third party except as otherwise agreed between the Client and JOHP in writing. 6. JOHP may supplement the funds in the Portfolio by borrowing on the Client's behalf but only for the purpose of funding short-term deficiencies arising in the normal course of JOHP's duties hereunder to an extent which is not material in the context of the Portfolio taken as a whole. JOHP will not borrow money on the Client's behalf against the security of any of the Client's investments, documents of title or property. 7. JOHP may commit the Client to underwrite any issue or offer for sale of securities without the Client's prior written consent. 8. JOHP may act as principal in any transaction for the Client provided that JOHP shall secure for the Client best execution of such transaction. 9. Subject to the IMRO Rules, JOHP may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. 10. JOHP has the right under this Agreement to effect transactions on the Client's behalf in investments the price of which may be being stabilized. The attention of the Client is referred to the statement contained in Schedule II relating to stabilization. Signature of this Agreement by or on behalf of the Client shall act as acknowledgment by the Client of receipt of such statement prior to entry into this Agreement. CONFLICTS OF INTEREST 11. Subject to paragraphs 12 and 13, JOHP shall not undertake any transactions on the Client's behalf in which JOHP has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHP's duty to the Client unless that interest or relationship is disclosed in writing to the Client. 12. The Client's Portfolio may contain securities of which the issue or offer for sale is underwritten, managed or arranged by an Associate (as defined in the Rules of IMRO) of JOHP during the preceding twelve months. Page 98 of 258 Pages 13. The Client understands that JOHP's directors or staff may from time to time hold shares or securities including holdings that may be in the Portfolio, and that JOHP's directors or staff may from time to time be directors of companies whose shares are held in the Portfolio. 14. The Client acknowledges that JOHP may acquire or dispose of on the Client's behalf shares or units in any fund, company, trust or Collective Investment Scheme (as defined by the Rules of IMRO) under JOHP's management (or in a fund, company, trust or Collective Investment Scheme connected with JOHP) if JOHP considers such an investment to be appropriate for inclusion in or exclusion from the Portfolio. CUSTODIAL SERVICES 15. (a) Save where the Client has notified JOHP in accordance with paragraph 15(b), in those cases where the Client is situated in the United Kingdom registerable investments will be registered in the name of an Eligible Custodian (as defined in the Rules of IMRO) situated in the United Kingdom and nominated by JOHP. (b) In those cases where the Client is situated overseas or where the Client so requests by notice in writing to JOHP, registerable investments will be registered in the name of an Eligible Custodian situated outside the United Kingdom and nominated by JOHP. (c) All documents of title (including those in bearer form) will be retained in the custody of an Eligible Custodian nominated by JOHP and situated in the United Kingdom or overseas as applicable. (d) None of the Eligible Custodians as aforesaid shall be Associates of JOHP. However, the Client's registerable investments may at any time be registered in the name of a nominee company which is an Associate of JOHP and Client's documents of title may be held by that Associate at any time after JOHP shall have given the Client written notice of its intention to do so. Such notice shall specify the nature of its association with such Associate. ACCOUNTS, INTEREST AND DIVIDENDS 16. The following Client accounts, together with such others that may be required, will be maintained by JOHP. (a) INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 5 and 6, JOHP shall not lend the Client's investments to any third party and shall not borrow money on the Client's behalf against the security of the Client's investments. (b) CAPITAL ACCOUNT Page 99 of 258 Pages All uninvested cash will be held in this account by a bank chosen by JOHP. The account will be debited with the cost of purchases on the Client's behalf and with sums due and payable by the Client to JOHP and will be credited with the net proceeds of sales on the Client's behalf. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will be paid on sums standing to the credit of the account and held on the Client's behalf at the prevailing market rate. The interest will be paid quarterly and will be credited to the Income Account on the Client's behalf. (c) SETTLEMENT ACCOUNT Money debited to the Capital Account in respect of the cost of purchases made on the Client's behalf and money received and receivable upon settlement of each sale made on the Client's behalf will be credited to this account and held there until the relevant settlement date. (d) INCOME ACCOUNT Dividends and interest received on investments within the Portfolio will be credited to this account. Balances on the account will be paid away quarterly in accordance with the Client's instructions or, in the absence of such instructions, will be transferred quarterly to the Capital Account as soon as reasonably practicable after the last day of each such quarter being 5th April, 30th June, 5th October and 31st December in each year. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will not be paid on monies held in this account. (d) OFF-SHORE FUNDS In those cases where the Client is situated overseas or if the Client notifies JOHP in writing that the Client wishes cash in the Portfolio to be held outside the United Kingdom, JOHP will be (subject to applicable laws and regulations) hold such cash in a bank account outside the United Kingdom. 17. The Client may at any time instruct JOHP to realise any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. 18. JOHP shall maintain separate ledger accounts on the Client's behalf. All debits from and credits to the Investment Account and/or Capital Account and/or Income Account on the Client's behalf shall be recorded in the ledger accounts, and statements of account showing all transactions, payments and receipts up to and including 5th April of each year will be sent to the Client as soon as reasonably practicable after that date. COMMUNICATIONS Page 100 of 258 Pages 19. In the interests of proper administration of the Portfolio and for related investment purposes JOHP, its representatives or employees, may call upon the Client by telephone, visit or otherwise communicate orally with the Client without express invitation. The Client's attention is drawn to the fact that the Client will forfeit any right conferred by section 56 of the Financial Services Act 1986 to treat as unenforceable any investment agreement entered into in the course of or in consequence of such a call. ADMINISTRATION 20. Contract notes in respect of every purchase and sale on the Client's behalf will be sent to the Client before the close of business on the day next following the day on which the transaction was effected. 21. JOHP will on the Client's request forward details of all transactions on the Client's behalf to the Client's tax advisor without additional charge. 22. The Client may (upon giving reasonable notice) inspect all copy contract notes, vouchers and copies of entries in books or electronic recording media kept by JOHP or to which JOHP has access relating to the transactions effected by JOHP on the Client's behalf and those records will be maintained by JOHP or JOHP will ensure that they are maintained for not less than seven years from the date of the relevant transaction. 23. All documents will be sent to the Client at the address given above unless and until otherwise directed in writing. The Client agrees that it will immediately notify JOHP in writing of any changes of address, and that JOHP will not be responsible for any consequences which may arise from failure to do so. REVIEWS AND VALUATIONS 24. JOHP will prepare reviews of the Portfolio incorporating an up-to-date valuation of each investment comprised in the Portfolio and a statement of the basis on which it was valued on a six monthly basis or at such other frequency as may be agreed between JOHP and the Client. Such reviews shall be prepared as at such half yearly or other dates as shall be agreed between JOHP and the Client from time to time (each such date being referred to as a "Valuation Date"), and JOHP will send such reviews to the Client within twenty-five business days of each Valuation Date. 25. On each Valuation Date cash will be valued at its face value and each investment will be valued at its middle market price on the relevant stock exchange at the close of business on such day or (if not a business day) on the nearest prior business day as is supplied by "Exshare" or any other suitable information service chosen by JOHP (which figures shall be binding save for manifest error). For the purpose of valuing in sterling any foreign currency or any security listed on a foreign stock exchange the price of which is quoted in currency other than sterling, the valuation and middle market exchange rates supplied by "Exshare" or any other suitable information service chosen by JOHP shall be applied. In the absence of that valuation or exchange rate, the middle market price as determined by the Daily Official List of The Stock Page 101 of 258 Pages Exchange or the equivalent list for any relevant stock exchange will be applied. If none of the foregoing methods of valuation are available, the investments in question will be valued in such other manner (by JOHP or such other person selected by JOHP) as shall in JOHP's opinion be fair. 26. JOHP accepts no liability for any period longer than 25 business days between any Valuation Date and the despatch of a review to the Client of his Portfolio which has elapsed as a result of any act or omission of any third party. VOTING AND OTHER RIGHTS 27. JOHP will be entitled at its discretion and without notice to the Client to procure or to refrain from procuring the exercise of voting and other rights and privileges attaching to the investments comprised in the Portfolio and to accede or refrain from acceding to any compromise or arrangement in relation to any scheme of arrangement or scheme for reconstruction or amalgamation involving any such investment. JOHP will not forward to the Client any circulars, notices or proxy cards received in respect of investments comprised in the Portfolio. FEES, COMMISSIONS AND EXPENSES 28. (a) The Client will pay a management fee to JOHP in respect of the period beginning with first receipt by JOHP of any investments or money from the Client and ending with a Valuation Date (as defined in paragraph 24) and each period thereafter starting with the day after any Valuation Date and ending on the next Valuation Date (or the Termination Date as defined in paragraph 39 if sooner). (b) The management fee shall be calculated in accordance with the 'Scale Rates and Charges' set out in Schedule III. (c) The management fee shall be payable not later than 14 days after despatch to the Client of an invoice which shall be sent to the Client as soon as is reasonably practicable after each Valuation Date. Unless otherwise instructed the Client's Capital Account will be debited with the amounts due to JOHP on the 14th day after despatch of such invoice. (d) In addition the Client shall reimburse JOHP for any expenses or liabilities which it may incur in properly carrying out its duties hereunder. 29. The management fee shall be deemed to have accrued on a day-to-day basis, so that, if this Agreement commences or terminates other than on a Valuation Date (as defined in paragraph 24), the amount of the fee shall be duly apportioned. 30. Commissions (as set out in Schedule III) will be payable by the Client on purchases and sales of investments together with all expenses including stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The Client recognises that JOHP may gain a commission benefit from dealing in a bulk purchase or sale on behalf of JOHP's Page 102 of 258 Pages clients, one of whom may be the Client, or from return commissions which benefit JOHP shall be entitled to retain. JOHP will be free to accept and retain as an addition to its fees and commissions any other commissions which it receives in the course of its dealing on the Client's behalf: all such benefits and receipts shall supplement any other remuneration receivable by JOHP in connection with transactions effected by JOHP with or for the Client under this or any other agreement with the Client and the Client consents to all such benefits and receipts as are referred to above without prior disclosure of the same to the Client on a case-by-case basis provided that JOHP undertakes to secure for the Client best execution of all transactions effected with or through a party from whom JOHP receives such benefits and commissions, disregarding any benefit which the Client might obtain directly or indirectly as a result of such arrangements. 31. JOHP shall be entitled to alter the manner of computing or charging its fees, commissions and expenses or of paying interest on the money held on the Client's behalf in the Capital Account (including with prejudice to the generality of the foregoing its scale rates and charges) by giving one month's prior notice in writing to the Client. RESPONSIBILITY AND INSURANCE 32. JOHP will indemnify the Client in respect of any loss incurred as a result of negligence, wilful default or fraud by JOHP or any of its employees. Subject to the above, JOHP will not be responsible or liable for any claim, loss, damage, expense or costs arising by reason of any of the following: (a) any investment decision taken and acted upon in accordance with the terms of this Agreement; or (b) any delay or default in the performance of its obligations under this Agreement arising in consequence of any event or circumstance beyond the reasonable control of JOHP; or (c) any act or omission on the part of any of the banks or nominee companies controlled by them or other eligible custodians as referred to in paragraph 15 or any other person to which any of them shall have delegated its function or on the part of any other third party whatsoever; or (d) any consequential loss suffered in consequence of any act or omission of JOHP or any breach of JOHP of any term of this Agreement. 33. The Client agrees to indemnify and keep indemnified JOHP from and against all demands, claims, liabilities, losses, damages, costs and expenses whatsoever incurred by JOHP arising out of the breach by the Client of any warranty or by reason of any failure by the Client to comply with and/or perform any of the terms and conditions contained in this Agreement. Page 103 of 258 Pages 34. Where the Client is a joint account (whether or not a trust account) JOHP shall unless and until otherwise directed in writing by all the persons named in the joint account, be entitled to act on the instructions of any of them and shall not in any whatsoever be liable to the others for doing so. 35. JOHP has effected insurance to provide for the protection of the Client against losses arising from any negligence of JOHP or any dishonesty of employees of JOHP. 36. Under Section 54 of the Financial Services Act 1986 The Securities and Investments Board has established a scheme for compensating investors by which the Client may be entitled to compensation in the event of JOHP's inability to meet any liabilities to the Client. JOHP will make available to the Client upon request a statement describing the Client's rights to compensation under the scheme. DELEGATION AND USE OF AGENTS 37. JOHP may delegate any of its functions under this Agreement to an Associate and may provide information about the Client and the Portfolio to any such Associate but JOHP's liability to the Client for all matters so delegated shall not be affected thereby. JOHP shall give to the Client written notice of any delegation of a function which involves the exercise of its discretionary investment management powers. 38. JOHP may employ agents (including Associates) to perform any administrative, dealing, custodial and ancillary services required to enable JOHP to perform its services under this Agreement. JOHP undertakes to act in good faith and with due diligence in the choice and use of such agents. TERMINATION OF AGREEMENT 39. This Agreement may be terminated by either party by giving written notice of termination to the other at any time. Termination shall take effect on the day upon which the other party actually receives the notice (the "Termination Date") provided that, where the Client is a joint account, notice of termination by JOHP shall be given to every person named in the joint account and in such circumstances the Termination Date shall be deemed to be the day after the date of posting by first class recorded delivery or other appropriate means to all persons named in the joint account. 40. Upon the Termination Date, JOHP will complete expeditiously all transactions in progress at termination but will not execute any further transactions for the Client. Upon all fees, commissions, expenses and other sums due to it and any other liabilities for which it may be or become liable in connection with the management of the Portfolio being settled or adequately secured to the satisfaction of JOHP, JOHP will ensure that all investments and cash balances held on the Client's behalf will, after any outstanding security registration, stock exchange settlements and other administrative matters have been completed and as soon as reasonably practicable, be transferred to the Client or dealt with in accordance with the Client's instructions, in all cases at the cost of the Client. Page 104 of 258 Pages 41. Termination will not affect accrued rights, existing commitments or any contractual provision intended to survive termination and will be without penalty or other additional payment except that JOHP may charge the Client an amount equal to: (a) the relevant proportion of the management fee, corresponding to that part of the period ending on a Valuation Date by reference to which fees are payable, which has expired when this Agreement is terminated; (b) any additional expenses which JOHP necessarily incurs in terminating this Agreement; and (c) any losses necessarily realised in settling or concluding outstanding obligations. 42. The death, bankruptcy or other incapacity or, in the case of a body corporate, the cessation of business of the Client or a petition being presented or a meeting being convened to consider a resolution for the liquidation of the Client shall not of itself terminate JOHP's appointment; but JOHP may at its discretion treat its receipt of actual notice of any such events as if it were a written notice of termination from the Client. 43. If the Client is a joint account the Client's obligations under this Agreement shall be joint and several. On the death of any of the persons constituting the Client (being survived by any such other person), the Agreement shall not terminate and, except in the case of trustees, the interest of the deceased in the Portfolio shall automatically enure to the benefit of the survivor(s) unless otherwise specified by notice in writing to JOHP. CLIENT WARRANTIES 44. The Client warrants that the Client is the beneficial owner (or the duly authorised agent of the beneficial owner) of the whole of the Portfolio free from all liens, charges, encumbrances and restrictions on transfer except insofar as advised by the Client to JOHP, and will so remain during the currency of this Agreement. 45. The Client warrants that the Client is empowered to enter into this Agreement without the consent or authority of any other party and in the case of a Client being a body corporate the Client warrants that by entering into this Agreement it is not nor will it be in breach of its Memorandum or Articles of Association or any other relevant document. GENERAL 46. Terms and expressions defined in the rules of IMRO for the time being in force shall where the context so admits bear the same meaning in this Agreement. 47. The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. 48. The Schedules to this Agreement are an integral part of it. Page 105 of 258 Pages 49. If the Client is an individual this Agreement shall be binding on his legal personal representatives. 50. This Agreement is personal to the parties hereto and shall not be capable of assignment. 51. Subject to clause 31, no change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. 52. Notice required or authorised to be served hereunder must be addressed to the address of the recipient stated above or to such other address as may have been notified in writing by either party hereto to the other as its address for the service of notices. In the case of notice served by the Client from outside the United Kingdom and of notice served upon the Client at an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client at an address within the United Kingdom the notice shall be sufficiently served if served by pre-paid letter. 53. If the Client makes a complaint to JOHP verbally or in writing about any service JOHP has rendered to the Client under this Agreement the complaint shall immediately be referred to JOHP's Chief Executive or to a Senior Investment Manager who was not involved in the circumstances relating to the complaint and who will investigate such circumstances. Upon the conclusion of his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter which is the subject of the complaint. The Client has the right to refer any complaint to IMRO if the Client is not satisfied with the action taken by the Chief Executive or Senior Investment Manager, and in any event has the right to make the complaint direct to IMRO or the Investment Ombudsman without prior reference to JOHP. 54. Each party to this Agreement shall respect and protect the confidentiality of information acquired in consequence of it and shall not disclose such information to any third party save in the course of giving effect to this Agreement or as may be required by law, or where requested by regulatory authorities, or to their professional advisors where reasonably necessary for the performance of their professional services. 55. This Agreement is subject to English law and the parties hereto hereby submit to the jurisdiction of the English Courts in respect of it. Page 106 of 258 Pages SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio (see attached letter/opening valuation - where applicable) SCHEDULE II INVESTMENT POLICY, GUIDELINES AND RESTRICTIONS PART I - Investment Policy including basis of measurement of performance The investment objectives are to maintain a maximum total return commensurate with safety and the protection of the underlying value of the capital of the fund. The performance will be measured against the F.T. All Share Index, any other appropriate Index or measure of performance agreed upon by JOHP and the Client. PART II - Guidelines and Restrictions 1. There will be no restrictions placed on the types of investment in which the money comprised in the Portfolio will be invested provided that the services to be provided by JOHP will not include advising on or effecting Contingent Liability Transactions, nor will they, without the express prior authority of the Client, relate to options, futures or contracts for differences (or to any right or interest in such investments). 2. The contents of the Portfolio may be invested in any market save for the following. There shall be no restriction on the amount of monies or proportion of the Portfolio invested in any one investment or type of investment permitted hereunder provided that, subject to the provisions relating to overdraft contained in paragraph 6 of this Agreement, under no circumstances will JOHP make investments on behalf of the Client to a value in excess of the aggregate of the value of the funds and securities held by JOHP on behalf of the Client in the accounts referred to in paragraph 16 of this Agreement. PART III - Risk Warnings and Risk Disclosure Statement Page 107 of 258 Pages Investments Denominated in Foreign Currencies If a liability of the Client in one currency is to be matched by an asset in a different currency, or if JOHP provides services under this Agreement relating to an investment denominated in a foreign currency, a movement in exchange rates may have an effect which may be either favourable or unfavourable on the investment, which effect may be separate from the gain or loss otherwise experienced on such investment. Investments not readily realisable Certain categories of investments comprised in the Portfolio may not be readily realisable. You should be aware that there can be no certainty that market makers or brokers will be prepared to deal in such investments and that proper information for determining their current value may not be available. Warrants A warrant is a right to subscribe for shares, debentures, loan stock or government securities, and is exercisable against the original issuer of the securities. Warrants often involve a high degree of gearing so that a relatively small movement in the price of the underlying security results in a disproportionately large movement, unfavourable as well as favourable, in the price of the warrant. The prices of warrants can therefore be volatile. Stabilisation This statement is made in compliance with Rule 14 of Chapter IV of the rules of IMRO. "We or our representatives may from time to time effect on your behalf or recommend to you transactions in securities which are the subject of a recent new issue where the price of those transactions may have been influenced by bids made or transactions effected for the purpose of stabilising the price of those securities. You should read the explanation below carefully. Its purpose is to enable you to judge whether you wish your funds to be invested at all in such securities or, if so, whether you wish to authorise us generally to effect transactions in such securities on your behalf without further reference to you or whether you wish to be consulted before any particular transaction is effected on your behalf. Stabilisation is a process whereby the market price of a security is pegged or fixed during the period in which a new issue of securities is sold to the public. Stabilisation may take place in the new issue or in other securities related to the new issue in such a way that the price of the other securities may affect the price of the new issue or vice versa. The reason stabilisation is permitted is that when a new issue is brought to market the sudden glut will sometimes force the price lower for a period of time before buyers are found for the securities on offer. As long as he obeys a strict set of rules the "stabilising manager", normally the issuing house chiefly responsible for bringing a new issue to market, is entitled to buy securities in the market that he has previously sold to investors or allotted to institutions who were included in Page 108 of 258 Pages the new issue but who have decided not to continue participating. The effect of this may be to keep the price at a higher level than would otherwise be the case during the period of stabilising. The rules limit the period in which he may stabilise, fix the price at which he may stabilise (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are interested in the new issue or interested in purchasing at the price at which transactions are taking place". Page 109 of 258 Pages SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 1% per annum on portfolios of up to (Pounds)2,500,000 Large Portfolios (Over (Pounds)2,500,000) - by negotiation COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST 1.25% on transactions up to (pounds)10,000 0.5% on transactions up to (pounds)10,000 0.50% thereafter 0.25% on the next (pounds)40,000 0.125% thereafter
(Minimum commissions (pounds)30 per contract) All transactions are subject to a handling charge of (pounds)12.50 per transaction in the case of UK registered securities ((pounds)20 for non-UK registered securities) VALUE ADDED TAX This will be charged on the fees shown above at the appropriate rate where applicable Page 110 of 258 Pages FOR JO HAMBRO & PARTNERS LIMITED 23rd Jan. 1996 /s/ J.D. Hambro --------------------------- FOR THE CLIENT* 25 Jan. 1996 Date - ------------------------------------------ --------------------------- /s/Barbara Thomas - ------------------------------------------ /s/Allen Thomas - ------------------------------------------ *The Client should sign here as follows. An Individual or Individuals. The individual should sign his/her usual signature and insert the date. Where the Client is a joint account all persons named in the joint account should sign. A Company. The Company's duly authorised signatory should sign and insert the date. Please let JOHP have a certified true copy of a Board resolution confirming the appointment of JOHP as investment manager and authorising the signature of the Agreement. Please provide an up-to-date copy of the Memorandum and Articles of Association and the Certificate of Incorporation which will be returned. A Trust of Pension Fund. All the trustees should sign and insert the date. Please let JOHP have a copy of the Trust Deed. A Partnership. All the partners should sign and insert the date. Page 111 of 258 Pages EX-99.(F) 7 INVSTMNT. MGMNT. AGMNT. J O HAMBRO & LORD STEVEN CLIENT AGREEMENT LORD STEVENS OF LUDGATE PENSION FUND Page 112 of 258 Pages J O HAMBRO & PARTNERS LIMITED ----------------------------- Regulated by IMRO in the conduct of Investment Business THIS INVESTMENT MANAGEMENT AGREEMENT is made the day of 19 BETWEEN: (1) J O HAMBRO & PARTNERS LIMITED ("JOHP") a member of the Investment Management Regulatory Organisation Limited ("IMRO") and regulated in the conduct of investment business by it, whose registered office is at 10 Park Place, London SW1A, 1LP; and (2) Lord Stevens of Ludgate Pension Scheme --------------------------------------------------------- (portfolio name) (hereafter known as the "Client") of c/o Provident Life Association Ltd., Provident Way, -------------------------------------------------------- Basingstoke, Hamps RG21 2SZ -------------------------------------------------------------- (address) NOW IT IS HEREBY AGREED as follows: APPOINTMENT AND STATUS OF CLIENT 1. The Client, a Private Customer as defined in the Rules of IMRO, hereby appoints JOHP to act as discretionary investment manager, subject to the terms and conditions hereof, in relation to the Client's investments and cash which are from time to time placed under the management of JOHP (the "Portfolio") and JOHP hereby agrees to manage and administer the Portfolio. The appointment will commence on the date on which this Agreement is delivered to JOHP by the Client having been signed first by the Client then by JOHP. The assets comprising the Portfolio and their opening value are set out in Schedule 1. MANAGEMENT OF INVESTMENTS 2. JOHP shall have complete discretion, power and authority to manage the Portfolio and to make investments and changes in investments on the Client's behalf and as the Client's agent within the investment policy agreed between JOHP and the Client and set out in Part I of Schedule II. Such policy shall be subject to the guidelines and restrictions set out in Part II of Schedule II and to any guidelines, restrictions and instructions specified in writing from time to time by the Client or by the Client's duly authorised agent (written notice of whose authority shall have been received by JOHP.) The Client's attention is specifically drawn to the warnings set out in Part III of Schedule II. Page 113 of 258 Pages 3. JOHP shall not be obliged to undertake the management of investments the management of which would in its opinion be onerous to it. DEALING TERMS 4. Subject as set out in paragraph 9, in effecting transactions for the Portfolio JOHP shall seek best execution at all times and may (subject to the investment policy set out in Part I of Schedule II) deal on such markets or exchanges and with such counterparties as it thinks fit. The Client agrees that all such transactions will be effected in accordance with the rules and regulations of the relevant market or exchange and that JOHP may take all such steps as may be required or permitted by such rules and regulations and/or by good market practice. 5. The Client's investments or documents of title or certificates evidencing title to investments or any other property belonging to the Client will not be lent by JOHP to a third party except as otherwise agreed between the Client and JOHP in writing. 6. JOHP may supplement the funds in the Portfolio by borrowing on the Client's behalf but only for the purpose of funding short-term deficiencies arising in the normal course of JOHP's duties hereunder to an extent which is not material in the context of the Portfolio taken as a whole. JOHP will not borrow money on the Client's behalf against the security of any of the Client's investments, documents of title or property. 7. JOHP may commit the Client to underwrite any issue or offer for sale of securities without the Client's prior written consent. 8. JOHP may act as principal in any transaction for the Client provided that JOHP shall secure for the Client best execution of such transaction. 9. Subject to the IMRO Rules, JOHP may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. 10. JOHP has the right under this Agreement to effect transactions on the Client's behalf in investments the price of which may be being stabilised. The attention of the Client is referred to the statement contained in Schedule II relating to stabilisation. Signature of this Agreement by or on behalf of the Client shall act as acknowledgment by the Client of receipt of such statement prior to entry into this Agreement. CONFLICTS OF INTEREST 11. Subject to paragraphs 12 and 13, JOHP shall not undertake any transactions on the Client's behalf in which JOHP has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHP's duty to the Client unless that interest or relationship is disclosed in writing to the Client. 12. The Client's Portfolio may contain securities of which the issue or offer for sale is underwritten, managed or arranged by an Associate (as defined in the Rules of IMRO) of JOHP during the preceding twelve months. Page 114 of 258 Pages 13. The Client understands that JOHP's directors or staff may from time to time hold shares or securities including holdings that may be in the Portfolio, and that JOHP's directors or staff may from time to time be directors of companies whose shares are held in the Portfolio. 14. The Client acknowledges that JOHP may acquire or dispose of on the Client's behalf shares or units in any fund, company, trust or Collective Investment Scheme (as defined by the Rules of IMRO) under JOHP's management (or in a fund, company, trust or Collective Investment Scheme connected with JOHP) if JOHP considers such an investment to be appropriate for inclusion in or exclusion from the Portfolio. CUSTODIAL SERVICES 15. (a) Save where the Client has notified JOHP in accordance with paragraph 15(b), in those cases where the Client is situated in the United Kingdom registerable investments will be registered in the name of an Eligible Custodian (as defined in the Rules of IMRO) situated in the United Kingdom and nominated by JOHP. (b) In those cases where the Client is situated overseas or where the Client so requests by notice in writing to JOHP, registerable investments will be registered in the name of an Eligible Custodian situated outside the United Kingdom and nominated by JOHP. (c) All documents of title (including those in bearer form) will be retained in the custody of an Eligible Custodian nominated by JOHP and situated in the United Kingdom or overseas as applicable. (d) None of the Eligible Custodians as aforesaid shall be Associates of JOHP. However, the Client's registerable investments may at any time be registered in the name of a nominee company which is an Associate of JOHP and Client's documents of title may be held by that Associate at any time after JOHP shall have given the Client written notice of its intention to do so. Such notice shall specify the nature of its association with such Associate. ACCOUNTS, INTEREST AND DIVIDENDS 16. The following Client accounts, together with such others that may be required, will be maintained by JOHP. (a) INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 5 and 6, JOHP shall not lend the Client's investments to any third party and shall not borrow money on the Client's behalf against the security of the Client's investments. (b) CAPITAL ACCOUNT Page 115 of 258 Pages All uninvested cash will be held in this account by a bank chosen by JOHP. The account will be debited with the cost of purchases on the Client's behalf and with sums due and payable by the Client to JOHP and will be credited with the net proceeds of sales on the Client's behalf. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will be paid on sums standing to the credit of the account and held on the Client's behalf at the prevailing market rate. The interest will be paid quarterly and will be credited to the Income Account on the Client's behalf. (c) SETTLEMENT ACCOUNT Money debited to the Capital Account in respect of the cost of purchases made on the Client's behalf and money received and receivable upon settlement of each sale made on the Client's behalf will be credited to this account and held there until the relevant settlement date. (d) INCOME ACCOUNT Dividends and interest received on investments within the Portfolio will be credited to this account. Balances on the account will be paid away quarterly in accordance with the Client's instructions or, in the absence of such instructions, will be transferred quarterly to the Capital Account as soon as reasonably practicable after the last day of each such quarter being 5th April, 30th June, 5th October and 31st December in each year. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will not be paid on monies held in this account. (d) OFF-SHORE FUNDS In those cases where the Client is situated overseas or if the Client notifies JOHP in writing that the Client wishes cash in the Portfolio to be held outside the United Kingdom, JOHP will be (subject to applicable laws and regulations) hold such cash in a bank account outside the United Kingdom. 17. The Client may at any time instruct JOHP to realize any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. 18. JOHP shall maintain separate ledger accounts on the Client's behalf. All debits from and credits to the Investment Account and/or Capital Account and/or Income Account on the Client's behalf shall be recorded in the ledger accounts, and statements of account showing all transactions, payments and receipts up to and including 5th April of each year will be sent to the Client as soon as reasonably practicable after that date. COMMUNICATIONS Page 116 of 258 Pages 19. In the interests of proper administration of the Portfolio and for related investment purposes JOHP, its representatives or employees, may call upon the Client by telephone, visit or otherwise communicate orally with the Client without express invitation. The Client's attention is drawn to the fact that the Client will forfeit any right conferred by section 56 of the Financial Services Act 1986 to treat as unenforceable any investment agreement entered into in the course of or in consequence of such a call. ADMINISTRATION 20. Contract notes in respect of every purchase and sale on the Client's behalf will be sent to the Client before the close of business on the day next following the day on which the transaction was effected. 21. JOHP will on the Client's request forward details of all transactions on the Client's behalf to the Client's tax advisor without additional charge. 22. The Client may (upon giving reasonable notice) inspect all copy contract notes, vouchers and copies of entries in books or electronic recording media kept by JOHP or to which JOHP has access relating to the transactions effected by JOHP on the Client's behalf and those records will be maintained by JOHP or JOHP will ensure that they are maintained for not less than seven years from the date of the relevant transaction. 23. All documents will be sent to the Client at the address given above unless and until otherwise directed in writing. The Client agrees that it will immediately notify JOHP in writing of any changes of address, and that JOHP will not be responsible for any consequences which may arise from failure to do so. REVIEWS AND VALUATIONS 24. JOHP will prepare reviews of the Portfolio incorporating an up-to-date valuation of each investment comprised in the Portfolio and a statement of the basis on which it was valued on a six monthly basis or at such other frequency as may be agreed between JOHP and the Client. Such reviews shall be prepared as at such half yearly or other dates as shall be agreed between JOHP and the Client from time to time (each such date being referred to as a "Valuation Date"), and JOHP will send such reviews to the Client within twenty-five business days of each Valuation Date 25. On each Valuation Date cash will be valued at its face value and each investment will be valued at its middle market price on the relevant stock exchange at the close of business on such day or (if not a business day) on the nearest prior business day as is supplied by "Exshare" or any other suitable information service chosen by JOHP (which figures shall be binding save for manifest error). For the purpose of valuing in sterling any foreign currency or any security listed on a foreign stock exchange the price of which is quoted in currency other than sterling, the valuation and middle market exchange rates supplied by "Exshare" or any other suitable information service chosen by JOHP shall be applied. In the absence of that valuation or exchange rate, the middle market price as determined by the Daily Official List of The Stock Page 117 of 258 Pages Exchange or the equivalent list for any relevant stock exchange will be applied. If none of the foregoing methods of valuation are available, the investments in question will be valued in such other manner (by JOHP or such other person selected by JOHP) as shall in JOHP's opinion be fair. 26. JOHP accepts no liability for any period longer than 25 business days between any Valuation Date and the despatch of a review to the Client of his Portfolio which has elapsed as result of any act or omission of any third party. VOTING AND OTHER RIGHTS 27. JOHP will be entitled at its discretion and without notice to the Client to procure or to refrain from procuring the exercise of voting and other rights and privileges attaching to the investments comprised in the Portfolio and to accede or refrain from acceding to any compromise or arrangement in relation to any scheme of arrangement or scheme for reconstruction or amalgamation involving any such investment. JOHP will not forward to the Client any circulars, notices or proxy cards received in respect to investments comprised in the Portfolio. FEES, COMMISSIONS AND EXPENSES 28. (a) The Client will pay a management fee to JOHP in respect of the period beginning with first receipt by JOHP of any investments or money from the Client and ending with a Valuation Date (as defined in paragraph 24) and each period thereafter starting with the day after any Valuation Date and ending on the next Valuation Date (or the Termination Date as defined in paragraph 39 if sooner). (b) The management fee shall be calculated in accordance with the 'Scale Rates and Charges' set out in Schedule III. (c) The management fee shall be payable not later than 14 days after despatch to the Client of an invoice which shall be sent to the Client as soon as is reasonably practicable after each Valuation Date. Unless otherwise instructed the Client's Capital Account will be debited with the amounts due to JOHP on the 14th day after despatch of such invoice. (d) In addition the Client shall reimburse JOHP for any expenses or liabilities which it may incur in properly carrying out its duties hereunder. 29. The management fee shall be deemed to have accrued on a day-to-day basis, so that, if this Agreement commences or terminates other than on a Valuation Date (as defined in paragraph 24), the amount of the fee shall be duly apportioned. 30. Commissions (as set out in Schedule III) will be payable by the Client on purchases and sales of investments together will all expenses including stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The Client recognizes that JOHP may gain a commission benefit from dealing in a bulk purchase or sale on behalf of JOHP's Page 118 of 258 Pages clients, one of whom may be the Client, or from return commissions which benefit JOHP shall be entitled to retain. JOHP will be free to accept and retain as an addition to its fees and commissions any other commissions which it receives in the course of its dealing on the Client's behalf: all such benefits and receipts shall supplement any other remuneration receivable by JOHP in connection with transactions effected by JOHP with or for the Client under this or any other agreement with the Client and the Client consents to all such benefits and receipts as are referred to above without prior disclosure of the same to the Client on a case-by-case basis provided that JOHP undertakes to secure for the Client best execution of all transactions effected with or through a party from whom JOHP receives such benefits and commissions, disregarding any benefit which the Client might obtain directly or indirectly as a result of such arrangements. 31. JOHP shall be entitled to alter the manner of computing or charging its fees, commissions and expenses or of paying interest on the money held on the Client's behalf in the Capital Account (including with prejudice to the generality of the foregoing its scale rates and charges) by giving one month's prior notice in writing to the Client. RESPONSIBILITY AND INSURANCE 32. JOHP will indemnify the Client in respect of any loss incurred as a result of negligence, wilful default or fraud by JOHP or any of its employees. Subject to the above, JOHP will not be responsible or liable for any claim, loss, damage, expense or costs arising by reason of any of the following: (a) any investment decision taken and acted upon in accordance with the terms of this Agreement; or (b) any delay or default in the performance of its obligations under this Agreement arising in consequence of any event or circumstance beyond the reasonable control of JOHP; or (c) any act or omission on the part of any of the banks or nominee companies controlled by them or other eligible custodians as referred to in paragraph 15 or any other person to which any of them shall have delegated its function or on the part of any other third party whatsoever; or (d) any consequential loss suffered in consequence of any act or omission of JOHP or any breach of JOHP of any term of this Agreement. 33. The Client agrees to indemnify and keep indemnified JOHP from and against all demands, claims, liabilities, losses, damages, costs and expenses whatsoever incurred by JOHP arising out of the breach by the Client of any warranty or by reason of any failure by the Client to comply with and/or perform any of the terms and conditions in this Agreement. Page 119 of 258 Pages 34. Where the Client is a joint account (whether or not a trust account) JOHP shall unless and until otherwise directed in writing by all the persons named in the joint account, be entitled to act on the instructions of any of them and shall not in any whatsoever be liable to the others for doing so. 35. JOHP has effected insurance to provide for the protection of the Client against losses arising from any negligence of JOHP or any dishonesty of employees of JOHP. 36. Under Section 54 of the Financial Services Act 1986 The Securities and Investments Board has established a scheme for compensating investors by which the Client may be entitled to compensation in the event of JOHP's inability to meet any liabilities to the Client. JOHP will make available to the Client upon request a statement describing the Client's rights to compensation under the scheme. DELEGATION AND USE OF AGENTS 37. JOHP my delegate any of its functions under this Agreement to an Associate and may provide information about the Client and the Portfolio to any such Associate but JOHP's liability to the Client for all matters so delegated shall not be affected thereby. JOHP shall give to the Client written notice of any delegation of a function which involves the exercise of its discretionary investment management powers. 38. JOHP may employ agents (including Associates) to perform any administrative, dealing, custodial and ancillary services required to enable JOHP to perform its services under this Agreement. JOHP undertakes to act in good faith and with due diligence in the choice and use of such agents. TERMINATION OF AGREEMENT 39. This Agreement may be terminated by either party by giving written notice of termination to the other at any time. Termination shall take effect on the day upon which the other party actually receives the notice (the "Termination Date") provided that, where the Client is a joint account, notice of termination by JOHP shall be given to every person named in the joint account and in such circumstances the Termination Date shall be deemed to be the day after the date of posting by first class recorded delivery or other appropriate means to all persons named in the joint account. 40. Upon the Termination Date, JOHP will complete expeditiously all transactions in progress at termination but will not execute any further transactions for the Client. Upon all fees, commissions, expenses and other sums due to it and any other liabilities for which it may be or become liable in connection with the management of the Portfolio being settled or adequately secured to the satisfaction of JOHP, JOHP will ensure that all investments and cash balances held on the Client's behalf will, after any outstanding security registration, stock exchange settlements and other administrative matters have been completed and as soon as reasonably practicable, be transferred to the Client or dealt with in accordance with the Client's instructions, in all cases at the cost of the Client. Page 120 of 258 Pages 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. Page 121 of 258 Pages 49. If the Client is an individual this Agreement shall be binding on his legal personal representatives. 50. This Agreement is personal to the parties hereto and shall not be capable of assignment. 51. Subject to clause 31, no change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. 52. Notice required or authorised to be served hereunder must be addressed to the address of the recipient stated above or to such other address as may have been notified in writing by either party hereto to the other as its address for the service of notices. In the case of notice served by the client from outside the United Kingdom and of notice served upon the Client at an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client at an address within the United Kingdom the notice shall be sufficiently served if served by pre-paid letter. 53. If the client makes a complaint to JOHP verbally or in writing about any service JOHP has rendered to the Client under this Agreement the complaint shall immediately be referred to JOHP's Chief Executive or to a Senior Investment Manager who was not involved in the circumstances relating to the complaint and who will investigate such circumstances. Upon the conclusion of his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter which is the subject of the complaint. The Client has the right to refer any complaint to IMRO if the Client is not satisfied with the action taken by the Chief Executive or Senior Investment Manager, and in any event has the right to make the complaint direct to IMRO or the Investment Ombudsman without prior reference to JOHP. 54. Each party to this Agreement shall respect and protect the confidentiality of information acquired in consequence of it and shall not disclose such information to any third party save in the course of giving effect to this Agreement or as may be required by law, or where requested by regulatory authorities, or to their professional advisors where reasonably necessary for the performance of their professional services. 55. This Agreement is subject to English law and the parties hereto hereby submit to the jurisdiction of the English Courts in respect of it. Page 122 of 258 Pages SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio (see attached letter/opening valuation - where applicable) SCHEDULE II INVESTMENT POLICY, GUIDELINES AND RESTRICTIONS PART I - Investment Policy including basis of measurement of performance The investment objectives are to maintain a maximum total return commensurate with safety and the protection of the underlying value of the capital of the fund. The performance will be measured against the F.T. All Share Index, any other appropriate Index or measure of performance agreed upon by JOHP and the Client. PART II - Guidelines and Restrictions 1. There will be no restrictions placed on the types of investment in which the money comprised in the Portfolio will be invested provided that the services to be provided by JOHP will not include advising on or effecting Contingent Liability Transactions, nor will they, without the express prior authority of the Client, relate to options, futures or contracts for differences (or to any right or interest in such investments). 2. The contents of the Portfolio may be invested in any market save for the following. There shall be no restriction on the amount of monies or proportion of the Portfolio invested in any one investment or type of investment permitted hereunder provided that, subject to the provisions relating to overdraft contained in paragraph 6 of this Agreement, under no circumstances will JOHP make investment on behalf of the Client to a value in excess of the aggregate of the value of the funds and securities held by JOHP on behalf of the Client in the accounts referred to in paragraph 16 of this Agreement. PART III - Risk Warnings and Risk Disclosure Statement Investments denominated in foreign Currencies If a liability of the Client in one currency is to be matched by an asset in a different currency, or if JOHP provides services under this Agreement relating to any investment denominated in a foreign currency, a movement in exchange rates may have an effect which may be either favorable or unfavorable on the investment, which effect may be separate from the gain or loss otherwise experienced on such investment. Page 123 of 258 Pages Investments not readily realisable Certain categories of investments comprised in the Portfolio may not be readily realisable. You should be aware that there can be no certainty that market makers or brokers will be prepared to deal in such investments and that proper information for determining their current value may not be available. Warrants A warrant is a right to subscribe for shares, debentures, loan stock or government securities, and is exercisable against the original issuer of the securities. Warrants often involve a high degree of gearing so that a relatively small movement in the price of the underlying security results in a disproportionately large movement, unfavorable as well as favorable, in the price of the warrant. The prices of warrants can therefore be volatile. Stabilisation This statement is made in compliance with Rule 14 of Chapter IV of the rules of IMRO. "We or our representatives may from time to time effect on your behalf or recommend to you transactions in securities which are the subject of a recent new issue where the price of those transactions may have been influenced by bids made or transactions effected for the purpose of stabilising the price of those securities. You should read the explanation below carefully. Its purpose is to enable you to judge whether you wish your funds to be invested at all in such securities or, if so, whether you wish to authorize us generally to effect transaction in such securities on your behalf without further reference to you or whether you wish to be consulted before any particular transaction in effected on your behalf. Stabilisation is a process whereby the market price of a security is pegged or fixed during the period in which a new issue of securities is sold to the public. Stabilisation may take place in the new issue or in other securities related to the new issue in such a way that the price of the other securities may affect the price of the new issue or vice versa. The reason stabilisation is permitted is that when a new issue is brought to market the sudden glut will sometimes force the price lower for a period of time before buyers are found for the securities on offer. As long as he obeys a strict set of rules the "stabilising manager", normal the issuing house chiefly responsible for bringing a new issue to market, is entitled to buy securities in the market that he has previously sold to investors or allotted to institutions who were included in the new issue but who have decided not to continue participating. The effect of this may be to keep the price at a higher level than would otherwise be the case during the period of stabilising. The rules limit the period in which he may stabilise, fix the price at which he may stabilize (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. Page 124 of 258 Pages The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are interest in the new issue or interested in purchasing at the price at which transactions are taking place". SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 1% per annum on portfolios of up to (Pounds)2,500,000 Large Portfolios (Over (Pounds)2,500,000) - by negotiation COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST 1.25% on transactions up to (Pounds)10,000 0.5% on transactions up to (Pounds)10,000 0.50% thereafter 0.25% on the next (Pounds)40,000 0.125% thereafter
(Minimum commissions (Pounds)30 per contract) All transactions are subject to a handling charge of (Pounds)12.50 per transaction in the case of UK registered securities ((Pounds)20 for non-UK registered securities) VALUE ADDED TAX This will be charged on the fees shown above at the appropriate rate where applicable Page 125 of 258 Pages FOR J O HAMBRO & PARTNERS LIMITED 23rd Jan. 1996 Date /s/ J.D. Hambro - ------------------------------------- ------------------------------------- FOR THE CLIENT* 9/2/96 Date - ------------------------------------- ------------------------------------- /s/ - ------------------------------------- /s/ - ------------------------------------- *The Client should sign here as follows. An Individual or Individuals. The individual should sign his/her usual signature and insert the date. Where the Client is a joint account all persons named in the joint account should sign. A Company. The Company's duly authorised signatory should sign and insert the date. Please let JOHP have a certified true copy of a Board resolution confirming the appointment of JOHP as investment manager and authorizing the signature of the Agreement. Pleas provide an up-to-date copy of the Memorandum and Articles of Association and the Certificate of Incorporation which will be returned. A Trust or Pension Fund. All the trustees should sign and insert the date. Please let JOHP have a copy of the Trust Deed. A Partnership. All the partners should sign and insert the date. Page 126 of 258 Pages [ILB] Page 127 of 258 Pages EX-99.(G) 8 INVSTMNT. MGMNT. AGRMNT. HAMBRO & JAN GILBERT CLIENT AGREEMENT JAN GILBERT CHARITABLE REMAINDER TRUST Page 128 of 258 Pages JO HAMBRO & PARTNERS LIMITED ---------------------------- Regulated by IMRO in the conduct of Investment Business THIS INVESTMENT MANAGEMENT AGREEMENT is made the 18th day of September 1996 BETWEEN: (1) JO HAMBRO & PARTNERS LIMITED ("JOHP") a member of the Investment Management Regulatory Organization Limited ("IMRO") and regulated in the conduct of investment business by it, whose registered office is at 10 Park Place, London SW1A 1LP; and (2) Jan Gilbert Charitable Remainder Trust (portfolio name) ---------------------------------------------------------- (hereafter known as the "Client") of c/o Dave Webster, 57 Shadow Mountain Drive ------------------------------------------------------------------------ Sedona, Arizona 86336 USA --------------------------------------------------------------------------- (address) NOW IT IS HEREBY AGREED as follows: APPOINTMENT AND STATUS OF CLIENT 1. The Client, a Private Customer as defined in the Rules of IMRO, hereby appoints JOHP to act as discretionary investment manager, subject to the terms and conditions hereof, in relation to the Client's investments and cash which are from time to time placed under the management of JOHP (the "Portfolio") and JOHP hereby agrees to manage and administer the Portfolio. The appointment will commence on the date on which this Agreement is delivered to JOHP by the Client having been signed first by the Client then by JOHP. The assets comprising the Portfolio and their opening value are set out in Schedule 1. MANAGEMENT OF INVESTMENTS 2. JOHP shall have complete discretion, power and authority to manage the Portfolio and to make investments and changes in investments on the Client's behalf and as the Client's agent within the investment policy agreed between JOHP and the Client and set out in Part 1 of Schedule II. Such policy shall be subject to the guidelines and restrictions set out in Part II of Schedule II and to any guidelines, restrictions and instructions specified in writing from time to time by the Client or by the Client's duly authorized agent (written notice of whose authority shall have been received by JOHP). The Client's attention is specifically drawn to the warnings set out in Part III of Schedule II. Page 129 of 258 Pages 3. JOHP shall not be obliged to undertake the management of investments the management of which would in its opinion be onerous to it. DEALING TERMS 4. Subject as set out in paragraph 9, in effecting transactions for the Portfolio JOHP shall seek best execution at all times and may (subject to the investment policy set out in Part I of Schedule II) deal on such markets or exchanges and with such counterparties as it thinks fit. The Client agrees that all such transactions will be effected in accordance with the rules and regulations of the relevant market or exchange and that JOHP may take all such steps as may be required or permitted by such rules and regulations and/or by good market practice. 5. The Client's investments or documents of title or certificates evidencing title to investments or any other property belonging to the Client will not be lent by JOHP to a third party except as otherwise agreed between the Client and JOHP in writing. 6. JOHP may supplement the funds in the Portfolio by borrowing on the Client's behalf but only for the purpose of funding short-term deficiencies arising in the normal course of JOHP's duties hereunder to an extent which is not material in the context of the Portfolio taken as a whole. JOHP will not borrow money on the Client's behalf against the security of any of the Client's investments, documents of title or property. 7. JOHP may commit the Client to underwrite any issue or offer for sale of securities without the Client's prior written consent. 8. JOHP may act as principal in any transaction for the Client provided that JOHP shall secure for the Client best execution of such transaction. 9. Subject to the IMRO Rules, JOHP may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. 10. JOHP has the right under this Agreement to effect transactions on the Client's behalf in investments the price of which may be being stabilized. The attention of the Client is referred to the statement contained in Schedule II relating to stabilization. Signature of this Agreement by or on behalf of the Client shall act as acknowledgment by the Client of receipt of such statement prior to entry into this Agreement. CONFLICTS OF INTEREST 11. Subject to paragraphs 12 and 13, JOHP shall not undertake any transactions on the Client's behalf in which JOHP has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHP's duty to the Client unless that interest or relationship is disclosed in writing to the Client. 12. The Client's Portfolio may contain securities of which the issue or offer for sale is underwritten, managed or arranged by an Associate (as defined in the Rules of IMRO) of JOHP during the preceding twelve months. Page 130 of 258 Pages 13. The Client understands that JOHP's directors or staff may from time to time hold shares or securities including holdings that may be in the Portfolio, and that JOHP's directors or staff may from time to time be directors of companies whose shares are held in the Portfolio. 14. The Client acknowledges that JOHP may acquire or dispose of on the Client's behalf shares or units in any fund, company, trust or Collective Investment Scheme (as defined by the Rules of IMRO) under JOHP's management (or in a fund, company, trust or Collective Investment Scheme connected with JOHP) if JOHP considers such an investment to be appropriate for inclusion in or exclusion from the Portfolio. CUSTODIAL SERVICES 15. (a) Save where the Client has notified JOHP in accordance with paragraph 15(b), in those cases where the Client is situated in the United Kingdom registerable investments will be registered in the name of an Eligible Custodian (as defined in the Rules of IMRO) situated in the United Kingdom and nominated by JOHP. (b) In those cases where the Client is situated overseas or where the Client so requests by notice in writing to JOHP, registerable investments will be registered in the name of an Eligible Custodian situated outside the United Kingdom and nominated by JOHP. (c) All documents of title (including those in bearer form) will be retained in the custody of an Eligible Custodian nominated by JOHP and situated in the United Kingdom or overseas as applicable. (d) None of the Eligible Custodians as aforesaid shall be Associates of JOHP. However, the Client's registerable investments may at any time be registered in the name of a nominee company which is an Associate of JOHP and Client's documents of title may be held by that Associate at any time after JOHP shall have given the Client written notice of its intention to do so. Such notice shall specify the nature of its association with such Associate. ACCOUNTS, INTEREST AND DIVIDENDS 16. The following Client accounts, together with such others that may be required, will be maintained by JOHP. (a) INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 5 and 6, JOHP shall not lend the Client's investments to any third party and shall not borrow money on the Client's behalf against the security of the Client's investments. (b) CAPITAL ACCOUNT Page 131 of 258 Pages All uninvested cash will be held in this account by a bank chosen by JOHP. The account will be debited with the cost of purchases on the Client's behalf and with sums due and payable by the Client to JOHP and will be credited with the net proceeds of sales on the Client's behalf. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will be paid on sums standing to the credit of the account and held on the Client's behalf at the prevailing market rate. The interest will be paid quarterly and will be credited to the Income Account on the Client's behalf. (c) SETTLEMENT ACCOUNT Money debited to the Capital Account in respect of the cost of purchases made on the Client's behalf and money received and receivable upon settlement of each sale made on the Client's behalf will be credited to this account and held there until the relevant settlement date. (d) INCOME ACCOUNT Dividends and interest received on investments within the Portfolio will be credited to this account. Balances on the account will be paid away quarterly in accordance with the Client's instructions or, in the absence of such instructions, will be transferred quarterly to the Capital Account as soon as reasonably practicable after the last day of each such quarter being 5th April, 30th June, 5th October and 31st December in each year. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will not be paid on monies held in this account. (d) OFF-SHORE FUNDS In those cases where the Client is situated overseas or if the Client notifies JOHP in writing that the Client wishes cash in the Portfolio to be held outside the United Kingdom, JOHP will be (subject to applicable laws and regulations) hold such cash in a bank account outside the United Kingdom 17. The Client may at any time instruct JOHP to realise any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. 18. JOHP shall maintain separate ledger accounts on the Client's behalf. All debits from and credits to the Investment Account and/or Capital Account and/or Income Account on the Client's behalf shall be recorded in the ledger accounts, and statements of account showing all transactions, payments and receipts up to and including 5th April of each year will be sent to the Client as soon as reasonably practicable after that date. COMMUNICATIONS Page 132 of 258 Pages 19. In the interests of proper administration of the Portfolio and for related investment purposes JOHP, its representatives or employees, may call upon the Client by telephone, visit or otherwise communicate orally with the Client without express invitation. The Client's attention is drawn to the fact that the Client will forfeit any right conferred by section 56 of the Financial Services Act 1986 to treat as unenforceable any investment agreement entered into in the course of or in consequence of such a call. ADMINISTRATION 20. Contract notes in respect of every purchase and sale on the Client's behalf will be sent to the Client before the close of business on the day next following the day on which the transaction was effected. 21. JOHP will on the Client's request forward details of all transactions on the Client's behalf to the Client's tax advisor without additional charge. 22. The Client may (upon giving reasonable notice) inspect all copy contract notes, vouchers and copies of entries in books or electronic recording media kept by JOHP or to which JOHP has access relating to the transactions effected by JOHP on the Client's behalf and those records will be maintained by JOHP or JOHP will ensure that they are maintained for not less than seven years from the date of the relevant transaction. 23. All documents will be sent to the Client at the address given above unless and until otherwise directed in writing. The Client agrees that it will immediately notify JOHP in writing of any changes of address, and that JOHP will not be responsible for any consequences which may arise from failure to do so. REVIEWS AND VALUATIONS 24. JOHP will prepare reviews of the Portfolio incorporating an up-to-date valuation of each investment comprised in the Portfolio and a statement of the basis on which it was valued on a six monthly basis or at such other frequency as may be agreed between JOHP and the Client. Such reviews shall be prepared as at such half yearly or other dates as shall be agreed between JOHP and the Client from time to time (each such date being referred to as a "Valuation Date"), and JOHP will send such reviews to the Client within twenty-five business days of each Valuation Date. 25. On each Valuation Date cash will be valued at its face value and each investment will be valued at its middle market price on the relevant stock exchange at the close of business on such day or (if not a business day) on the nearest prior business day as is supplied by "Exshare" or any other suitable information service chosen by JOHP (which figures shall be binding save for manifest error). For the purpose of valuing in sterling any foreign currency or any security listed on a foreign stock exchange the price of which is quoted in currency other than sterling, the valuation and middle market exchange rates supplied by "Exshare" or any other suitable information service chosen by JOHP shall be applied. In the absence of that valuation or exchange rate, the middle market price as determined by the Daily Official List of The Stock Page 133 of 258 Pages Exchange or the equivalent list for any relevant stock exchange will be applied. If none of the foregoing methods of valuation are available, the investments in question will be valued in such other manner (by JOHP or such other person selected by JOHP) as shall in JOHP's opinion be fair. 26. JOHP accepts no liability for any period longer than 25 business days between any Valuation Date and the despatch of a review to the Client of his Portfolio which has elapsed as a result of any act or omission of any third party. VOTING AND OTHER RIGHTS 27. JOHP will be entitled at its discretion and without notice to the Client to procure or to refrain from procuring the exercise of voting and other rights and privileges attaching to the investments comprised in the Portfolio and to accede or refrain from acceding to any compromise or arrangement in relation to any scheme of arrangement or scheme for reconstruction or amalgamation involving any such investment. JOHP will not forward to the Client any circulars, notices or proxy cards received in respect of investments comprised in the Portfolio. FEES, COMMISSIONS AND EXPENSES 28. (a) The Client will pay a management fee to JOHP in respect of the period beginning with first receipt by JOHP of any investments or money from the Client and ending with a Valuation Date (as defined in paragraph 24) and each period thereafter starting with the day after any Valuation Date and ending on the next Valuation Date (or the Termination Date as defined in paragraph 39 if sooner). (b) The management fee shall be calculated in accordance with the 'Scale Rates and Charges' set out in Schedule III. (c) The management fee shall be payable not later than 14 days after despatch to the Client of an invoice which shall be sent to the Client as soon as is reasonably practicable after each Valuation Date. Unless otherwise instructed the Client's Capital Account will be debited with the amounts due to JOHP on the 14th day after despatch of such invoice. (d) In addition the Client shall reimburse JOHP for any expenses or liabilities which it may incur in properly carrying out its duties hereunder. 29. The management fee shall be deemed to have accrued on a day-to-day basis, so that, if this Agreement commences or terminates other than on a Valuation Date (as defined in paragraph 24), the amount of the fee shall be duly apportioned. 30. Commissions (as set out in Schedule III) will be payable by the Client on purchases and sales of investments together with all expenses including stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The Client recognises that JOHP may gain a commission benefit from dealing in a bulk purchase or sale on behalf of JOHP's Page 134 of 258 Pages clients, one of whom may be the Client, or from return commissions which benefit JOHP shall be entitled to retain. JOHP will be free to accept and retain as an addition to its fees and commissions any other commissions which it receives in the course of its dealing on the Client's behalf: all such benefits and receipts shall supplement any other remuneration receivable by JOHP in connection with transactions effected by JOHP with or for the Client under this or any other agreement with the Client and the Client consents to all such benefits and receipts as are referred to above without prior disclosure of the same to the Client on a case-by-case basis provided that JOHP undertakes to secure for the Client best execution of all transactions effected with or through a party from whom JOHP receives such benefits and commissions, disregarding any benefit which the Client might obtain directly or indirectly as a result of such arrangements. 31. JOHP shall be entitled to alter the manner of computing or charging its fees, commissions and expenses or of paying interest on the money held on the Client's behalf in the Capital Account (including with prejudice to the generality of the foregoing its scale rates and charges) by giving one month's prior notice in writing to the Client. RESPONSIBILITY AND INSURANCE 32. JOHP will indemnify the Client in respect of any loss incurred as a result of negligence, wilful default or fraud by JOHP or any of its employees. Subject to the above, JOHP will not be responsible or liable for any claim, loss, damage, expense or costs arising by reason of any of the following: (a) any investment decision taken and acted upon in accordance with the terms of this Agreement; or (b) any delay or default in the performance of its obligations under this Agreement arising in consequence of any event or circumstance beyond the reasonable control of JOHP; or (c) any act or omission on the part of any of the banks or nominee companies controlled by them or other eligible custodians as referred to in paragraph 15 or any other person to which any of them shall have delegated its function or on the part of any other third party whatsoever; or (d) any consequential loss suffered in consequence of any act or omission of JOHP or any breach of JOHP of any term of this Agreement. 33. The Client agrees to indemnify and keep indemnified JOHP from and against all demands, claims, liabilities, losses, damages, costs and expenses whatsoever incurred by JOHP arising out of the breach by the Client of any warranty or by reason of any failure by the Client to comply with and/or perform any of the terms and conditions contained in this Agreement. Page 135 of 258 Pages 34. Where the Client is a joint account (whether or not a trust account) JOHP shall unless and until otherwise directed in writing by all the persons named in the joint account, be entitled to act on the instructions of any of them and shall not in any whatsoever be liable to the others for doing so. 35. JOHP has effected insurance to provide for the protection of the Client against losses arising from any negligence of JOHP or any dishonesty of employees of JOHP. 36. Under Section 54 of the Financial Services Act 1986 The Securities and Investments Board has established a scheme for compensating investors by which the Client may be entitled to compensation in the event of JOHP's inability to meet any liabilities to the Client. JOHP will make available to the Client upon request a statement describing the Client's rights to compensation under the scheme. DELEGATION AND USE OF AGENTS 37. JOHP may delegate any of its functions under this Agreement to an Associate and may provide information about the Client and the Portfolio to any such Associate but JOHP's liability to the Client for all matters so delegated shall not be affected thereby. JOHP shall give to the Client written notice of any delegation of a function which involves the exercise of its discretionary investment management powers. 38. JOHP may employ agents (including Associates) to perform any administrative, dealing, custodial and ancillary services required to enable JOHP to perform its services under this Agreement. JOHP undertakes to act in good faith and with due diligence in the choice and use of such agents. TERMINATION OF AGREEMENT 39. This Agreement may be terminated by either party by giving written notice of termination to the other at any time. Termination shall take effect on the day upon which the other party actually receives the notice (the "Termination Date") provided that, where the Client is a joint account, notice of termination by JOHP shall be given to every person named in the joint account and in such circumstances the Termination Date shall be deemed to be the day after the date of posting by first class recorded delivery or other appropriate means to all persons named in the joint account. 40. Upon the Termination Date, JOHP will complete expeditiously all transactions in progress at termination but will not execute any further transactions for the Client. Upon all fees, commissions, expenses and other sums due to it and any other liabilities for which it may be or become liable in connection with the management of the Portfolio being settled or adequately secured to the satisfaction of JOHP, JOHP will ensure that all investments and cash balances held on the Client's behalf will, after any outstanding security registration, stock exchange settlements and other administrative matters have been completed and as soon as reasonably practicable, be transferred to the Client or dealt with in accordance with the Client's instructions, in all cases at the cost of the Client. Page 136 of 258 Pages 41. Termination will not affect accrued rights, existing commitments or any contractual provision intended to survive termination and will be without penalty or other additional payment except that JOHP may charge the Client an amount equal to: (a) the relevant proportion of the management fee, corresponding to that part of the period ending on a Valuation Date by reference to which fees are payable, which has expired when this Agreement is terminated; (b) any additional expenses which JOHP necessarily incurs in terminating this Agreement; and (c) any losses necessarily realised in settling or concluding outstanding obligations. 42. The death, bankruptcy or other incapacity or, in the case of a body corporate, the cessation of business of the Client or a petition being presented or a meeting being convened to consider a resolution for the liquidation of the Client shall not of itself terminate JOHP's appointment; but JOHP may at its discretion treat its receipt of actual notice of any such events as if it were a written notice of termination from the Client. 43. If the Client is a joint account the Client's obligations under this Agreement shall be joint and several. On the death of any of the persons constituting the Client (being survived by any such other person), the Agreement shall not terminate and, except in the case of trustees, the interest of the deceased in the Portfolio shall automatically enure to the benefit of the survivor(s) unless otherwise specified by notice in writing to JOHP. CLIENT WARRANTIES 44. The Client warrants that the Client is the beneficial owner (or the duly authorised agent of the beneficial owner) of the whole of the Portfolio free from all liens, charges, encumbrances and restrictions on transfer except insofar as advised by the Client to JOHP, and will so remain during the currency of this Agreement. 45. The Client warrants that the Client is empowered to enter into this Agreement without the consent or authority of any other party and in the case of a Client being a body corporate the Client warrants that by entering into this Agreement it is not nor will it be in breach of its Memorandum or Articles of Association or any other relevant document. GENERAL 46. Terms and expressions defined in the rules of IMRO for the time being in force shall where the context so admits bear the same meaning in this Agreement. 47. The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. 48. The Schedules to this Agreement are an integral part of it. Page 137 of 258 Pages 49. If the Client is an individual this Agreement shall be binding on his legal personal representatives. 50. This Agreement is personal to the parties hereto and shall not be capable of assignment. 51. Subject to clause 31, no change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. 52. Notice required or authorised to be served hereunder must be addressed to the address of the recipient stated above or to such other address as may have been notified in writing by either party hereto to the other as its address for the service of notices. In the case of notice served by the Client from outside the United Kingdom and of notice served upon the Client at an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client at an address within the United Kingdom the notice shall be sufficiently served if served by pre-paid letter. 53. If the Client makes a complaint to JOHP verbally or in writing about any service JOHP has rendered to the Client under this Agreement the complaint shall immediately be referred to JOHP's Chief Executive or to a Senior Investment Manager who was not involved in the circumstances relating to the complaint and who will investigate such circumstances. Upon the conclusion of his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter which is the subject of the complaint. The Client has the right to refer any complaint to IMRO if the Client is not satisfied with the action taken by the Chief Executive or Senior Investment Manager, and in any event has the right to make the complaint direct to IMRO or the Investment Ombudsman without prior reference to JOHP. 54. Each party to this Agreement shall respect and protect the confidentiality of information acquired in consequence of it and shall not disclose such information to any third party save in the course of giving effect to this Agreement or as may be required by law, or where requested by regulatory authorities, or to their professional advisors where reasonably necessary for the performance of their professional services. 55. This Agreement is subject to English law and the parties hereto hereby submit to the jurisdiction of the English Courts in respect of it. Page 138 of 258 Pages SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio (see attached letter/opening valuation - where applicable) SCHEDULE II INVESTMENT POLICY, GUIDELINES AND RESTRICTIONS PART I - Investment Policy including basis of measurement of performance The investment objectives are to maintain a maximum total return commensurate with safety and the protection of the underlying value of the capital of the fund. The performance will be measured against the F.T. All Share Index, any other appropriate Index or measure of performance agreed upon by JOHP and the Client. PART II - Guidelines and Restrictions 1. There will be no restrictions placed on the types of investment in which the money comprised in the Portfolio will be invested provided that the services to be provided by JOHP will not include advising on or effecting Contingent Liability Transactions, nor will they, without the express prior authority of the Client, relate to options, futures or contracts for differences (or to any right or interest in such investments). 2. The contents of the Portfolio may be invested in any market save for the following. There shall be no restriction on the amount of monies or proportion of the Portfolio invested in any one investment or type of investment permitted hereunder provided that, subject to the provisions relating to overdraft contained in paragraph 6 of this Agreement, under no circumstances will JOHP make investments on behalf of the Client to a value in excess of the aggregate of the value of the funds and securities held by JOHP on behalf of the Client in the accounts referred to in paragraph 16 of this Agreement. PART III - Risk Warnings and Risk Disclosure Statement Page 139 of 258 Pages Investments Denominated in Foreign Currencies If a liability of the Client in one currency is to be matched by an asset in a different currency, or if JOHP provides services under this Agreement relating to an investment denominated in a foreign currency, a movement in exchange rates may have an effect which may be either favourable or unfavourable on the investment, which effect may be separate from the gain or loss otherwise experienced on such investment. Investments not readily realisable Certain categories of investments comprised in the Portfolio may not be readily realisable. You should be aware that there can be no certainty that market makers or brokers will be prepared to deal in such investments and that proper information for determining their current value may not be available. Warrants A warrant is a right to subscribe for shares, debentures, loan stock or government securities, and is exercisable against the original issuer of the securities. Warrants often involve a high degree of gearing so that a relatively small movement in the price of the underlying security results in a disproportionately large movement, unfavourable as well as favourable, in the price of the warrant. The prices of warrants can therefore be volatile. Stabilisation This statement is made in compliance with Rule 14 of Chapter IV of the rules of IMRO. "We or our representatives may from time to time effect on your behalf or recommend to you transactions in securities which are the subject of a recent new issue where the price of those transactions may have been influenced by bids made or transactions effected for the purpose of stabilising the price of those securities. You should read the explanation below carefully. Its purpose is to enable you to judge whether you wish your funds to be invested at all in such securities or, if so, whether you wish to authorise us generally to effect transactions in such securities on your behalf without further reference to you or whether you wish to be consulted before any particular transaction is effected on your behalf. Stabilisation is a process whereby the market price of a security is pegged or fixed during the period in which a new issue of securities is sold to the public. Stabilisation may take place in the new issue or in other securities related to the new issue in such a way that the price of the other securities may affect the price of the new issue or vice versa. The reason stabilisation is permitted is that when a new issue is brought to market the sudden glut will sometimes force the price lower for a period of time before buyers are found for the securities on offer. As long as he obeys a strict set of rules the "stabilising manager", normally the issuing house chiefly responsible for bringing a new issue to market, is entitled to buy securities in the market that he has previously sold to investors or allotted to institutions who were included in Page 140 of 258 Pages the new issue but who have decided not to continue participating. The effect of this may be to keep the price at a higher level than would otherwise be the case during the period of stabilising. The rules limit the period in which he may stabilise, fix the price at which he may stabilise (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are interested in the new issue or interested in purchasing at the price at which transactions are taking place". Page 141 of 258 Pages SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 1% per annum on portfolios of up to (Pounds)2,500,000 Large Portfolios (Over (Pounds)2,500,000) - by negotiation COMMISSION RATES EQUITIES GILTS/FIXED INTEREST (Minimum commissions (Pounds)30 per contract) All transactions are subject to a handling charge of (Pounds)12.50 per transaction in the case of UK registered securities ((Pounds)20 for non-UK registered securities) VALUE ADDED TAX This will be charged on the fees shown above at the appropriate rate where applicable Page 142 of 258 Pages FOR JO HAMBRO & PARTNERS LIMITED /s/ Christopher Mills 9/9/96 - ---------------------------------------- ----------------------------- FOR THE CLIENT* /s/ [signature appears here] 18/9/96 - ---------------------------------------- ----------------------------- Trustee for the Jan G. Gilbert Charitable Remainder Trust - ---------------------------------------- - ---------------------------------------- *The Client should sign here as follows. An Individual or Individuals. The individual should sign his/her usual signature and insert the date. Where the Client is a joint account all persons named in the joint account should sign. A Company. The Company's duly authorised signatory should sign and insert the date. Please let JOHP have a certified true copy of a Board resolution confirming the appointment of JOHP as investment manager and authorising the signature of the Agreement. Please provide an up-to-date copy of the Memorandum and Articles of Association and the Certificate of Incorporation which will be returned. A Trust of Pension Fund. All the trustees should sign and insert the date. Please let JOHP have a copy of the Trust Deed. A Partnership. All the partners should sign and insert the date. Page 143 of 258 Pages EX-99.(H) 9 INVSTMNT. MGMNT. AGRMNT. HAMBRO & RICHARDSON INTL. CLIENT AGREEMENT THE SUPERANNUATION FUND OF WIGAN RICHARDSON INTERNATIONAL LIMITED Page 144 of 258 Pages JO HAMBRO & PARTNERS LIMITED ---------------------------- Regulated by IMRO in the conduct of Investment Business THIS INVESTMENT MANAGEMENT AGREEMENT is made the day of 19 BETWEEN: (1) JO HAMBRO & PARTNERS LIMITED ("JOHP") a member of the Investment Management Regulatory Organization Limited ("IMRO") and regulated in the conduct of investment business by it, whose registered office is at 10 Park Place, London SW1A 1LP; and (2) The Superannuation Fund of Wigan Richardson International Limited -----------------------------------------------------------(portfolio name) (hereafter known as the "Client") of National Westminster Bank Chambers, Church Road -------------------------------------------------------------------- Paddock Wood, Tonbridge, Kent, TN12 6EP ----------------------------------------------------------------------- (address) NOW IT IS HEREBY AGREED as follows: APPOINTMENT AND STATUS OF CLIENT 1. The Client, a Private Customer as defined in the Rules of IMRO, hereby appoints JOHP to act as discretionary investment manager, subject to the terms and conditions hereof, in relation to the Client's investments and cash which are from time to time placed under the management of JOHP (the "Portfolio") and JOHP hereby agrees to manage and administer the Portfolio. The appointment will commence on the date on which this Agreement is delivered to JOHP by the Client having been signed first by the Client then by JOHP. The assets comprising the Portfolio and their opening value are set out in Schedule 1. MANAGEMENT OF INVESTMENTS 2. JOHP shall have complete discretion, power and authority to manage the Portfolio and to make investments and changes in investments on the Client's behalf and as the Client's agent within the investment policy agreed between JOHP and the Client and set out in Part 1 of Schedule II. Such policy shall be subject to the guidelines and restrictions set out in Part II of Schedule II and to any guidelines, restrictions and instructions specified in writing from time to time by the Client or by the Client's duly authorized agent (written notice of whose authority shall have been received by JOHP). The Client's attention is specifically drawn to the warnings set out in Part III of Schedule II. Page 145 of 258 Pages 3. JOHP shall not be obliged to undertake the management of investments the management of which would in its opinion be onerous to it. DEALING TERMS 4. Subject as set out in paragraph 9, in effecting transactions for the Portfolio JOHP shall seek best execution at all times and may (subject to the investment policy set out in Part I of Schedule II) deal on such markets or exchanges and with such counterparties as it thinks fit. The Client agrees that all such transactions will be effected in accordance with the rules and regulations of the relevant market or exchange and that JOHP may take all such steps as may be required or permitted by such rules and regulations and/or by good market practice. 5. The Client's investments or documents of title or certificates evidencing title to investments or any other property belonging to the Client will not be lent by JOHP to a third party except as otherwise agreed between the Client and JOHP in writing. 6. JOHP may supplement the funds in the Portfolio by borrowing on the Client's behalf but only for the purpose of funding short-term deficiencies arising in the normal course of JOHP's duties hereunder to an extent which is not material in the context of the Portfolio taken as a whole. JOHP will not borrow money on the Client's behalf against the security of any of the Client's investments, documents of title or property. 7. JOHP may commit the Client to underwrite any issue or offer for sale of securities without the Client's prior written consent. 8. JOHP may act as principal in any transaction for the Client provided that JOHP shall secure for the Client best execution of such transaction. 9. Subject to the IMRO Rules, JOHP may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. 10. JOHP has the right under this Agreement to effect transactions on the Client's behalf in investments the price of which may be being stabilized. The attention of the Client is referred to the statement contained in Schedule II relating to stabilization. Signature of this Agreement by or on behalf of the Client shall act as acknowledgment by the Client of receipt of such statement prior to entry into this Agreement. CONFLICTS OF INTEREST 11. Subject to paragraphs 12 and 13, JOHP shall not undertake any transactions on the Client's behalf in which JOHP has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHP's duty to the Client unless that interest or relationship is disclosed in writing to the Client. 12. The Client's Portfolio may contain securities of which the issue or offer for sale is underwritten, managed or arranged by an Associate (as defined in the Rules of IMRO) of JOHP during the preceding twelve months. Page 146 of 258 Pages 13. The Client understands that JOHP's directors or staff may from time to time hold shares or securities including holdings that may be in the Portfolio, and that JOHP's directors or staff may from time to time be directors of companies whose shares are held in the Portfolio. 14. The Client acknowledges that JOHP may acquire or dispose of on the Client's behalf shares or units in any fund, company, trust or Collective Investment Scheme (as defined by the Rules of IMRO) under JOHP's management (or in a fund, company, trust or Collective Investment Scheme connected with JOHP) if JOHP considers such an investment to be appropriate for inclusion in or exclusion from the Portfolio. CUSTODIAL SERVICES 15. (a) Save where the Client has notified JOHP in accordance with paragraph 15(b), in those cases where the Client is situated in the United Kingdom registerable investments will be registered in the name of an Eligible Custodian (as defined in the Rules of IMRO) situated in the United Kingdom and nominated by JOHP. (b) In those cases where the Client is situated overseas or where the Client so requests by notice in writing to JOHP, registerable investments will be registered in the name of an Eligible Custodian situated outside the United Kingdom and nominated by JOHP. (c) All documents of title (including those in bearer form) will be retained in the custody of an Eligible Custodian nominated by JOHP and situated in the United Kingdom or overseas as applicable. (d) None of the Eligible Custodians as aforesaid shall be Associates of JOHP. However, the Client's registerable investments may at any time be registered in the name of a nominee company which is an Associate of JOHP and Client's documents of title may be held by that Associate at any time after JOHP shall have given the Client written notice of its intention to do so. Such notice shall specify the nature of its association with such Associate. ACCOUNTS, INTEREST AND DIVIDENDS 16. The following Client accounts, together with such others that may be required, will be maintained by JOHP. (a) INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 5 and 6, JOHP shall not lend the Client's investments to any third party and shall not borrow money on the Client's behalf against the security of the Client's investments. (b) CAPITAL ACCOUNT Page 147 of 258 Pages All uninvested cash will be held in this account by a bank chosen by JOHP. The account will be debited with the cost of purchases on the Client's behalf and with sums due and payable by the Client to JOHP and will be credited with the net proceeds of sales on the Client's behalf. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will be paid on sums standing to the credit of the account and held on the Client's behalf at the prevailing market rate. The interest will be paid quarterly and will be credited to the Income Account on the Client's behalf. (c) SETTLEMENT ACCOUNT Money debited to the Capital Account in respect of the cost of purchases made on the Client's behalf and money received and receivable upon settlement of each sale made on the Client's behalf will be credited to this account and held there until the relevant settlement date. (d) INCOME ACCOUNT Dividends and interest received on investments within the Portfolio will be credited to this account. Balances on the account will be paid away quarterly in accordance with the Client's instructions or, in the absence of such instructions, will be transferred quarterly to the Capital Account as soon as reasonably practicable after the last day of each such quarter being 5th April, 30th June, 5th October and 31st December in each year. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will not be paid on monies held in this account. (d) OFF-SHORE FUNDS In those cases where the Client is situated overseas or if the Client notifies JOHP in writing that the Client wishes cash in the Portfolio to be held outside the United Kingdom, JOHP will be (subject to applicable laws and regulations) hold such cash in a bank account outside the United Kingdom 17. The Client may at any time instruct JOHP to realise any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. 18. JOHP shall maintain separate ledger accounts on the Client's behalf. All debits from and credits to the Investment Account and/or Capital Account and/or Income Account on the Client's behalf shall be recorded in the ledger accounts, and statements of account showing all transactions, payments and receipts up to and including 5th April of each year will be sent to the Client as soon as reasonably practicable after that date. COMMUNICATIONS Page 148 of 258 Pages 19. In the interests of proper administration of the Portfolio and for related investment purposes JOHP, its representatives or employees, may call upon the Client by telephone, visit or otherwise communicate orally with the Client without express invitation. The Client's attention is drawn to the fact that the Client will forfeit any right conferred by section 56 of the Financial Services Act 1986 to treat as unenforceable any investment agreement entered into in the course of or in consequence of such a call. ADMINISTRATION 20. Contract notes in respect of every purchase and sale on the Client's behalf will be sent to the Client before the close of business on the day next following the day on which the transaction was effected. 21. JOHP will on the Client's request forward details of all transactions on the Client's behalf to the Client's tax advisor without additional charge. 22. The Client may (upon giving reasonable notice) inspect all copy contract notes, vouchers and copies of entries in books or electronic recording media kept by JOHP or to which JOHP has access relating to the transactions effected by JOHP on the Client's behalf and those records will be maintained by JOHP or JOHP will ensure that they are maintained for not less than seven years from the date of the relevant transaction. 23. All documents will be sent to the Client at the address given above unless and until otherwise directed in writing. The Client agrees that it will immediately notify JOHP in writing of any changes of address, and that JOHP will not be responsible for any consequences which may arise from failure to do so. REVIEWS AND VALUATIONS 24. JOHP will prepare reviews of the Portfolio incorporating an up-to-date valuation of each investment comprised in the Portfolio and a statement of the basis on which it was valued on a six monthly basis or at such other frequency as may be agreed between JOHP and the Client. Such reviews shall be prepared as at such half yearly or other dates as shall be agreed between JOHP and the Client from time to time (each such date being referred to as a "Valuation Date"), and JOHP will send such reviews to the Client within twenty-five business days of each Valuation Date. 25. On each Valuation Date cash will be valued at its face value and each investment will be valued at its middle market price on the relevant stock exchange at the close of business on such day or (if not a business day) on the nearest prior business day as is supplied by "Exshare" or any other suitable information service chosen by JOHP (which figures shall be binding save for manifest error). For the purpose of valuing in sterling any foreign currency or any security listed on a foreign stock exchange the price of which is quoted in currency other than sterling, the valuation and middle market exchange rates supplied by "Exshare" or any other suitable information service chosen by JOHP shall be applied. In the absence of that valuation or exchange rate, the middle market price as determined by the Daily Official List of The Stock Page 149 of 258 Pages Exchange or the equivalent list for any relevant stock exchange will be applied. If none of the foregoing methods of valuation are available, the investments in question will be valued in such other manner (by JOHP or such other person selected by JOHP) as shall in JOHP's opinion be fair. 26. JOHP accepts no liability for any period longer than 25 business days between any Valuation Date and the despatch of a review to the Client of his Portfolio which has elapsed as a result of any act or omission of any third party. VOTING AND OTHER RIGHTS 27. JOHP will be entitled at its discretion and without notice to the Client to procure or to refrain from procuring the exercise of voting and other rights and privileges attaching to the investments comprised in the Portfolio and to accede or refrain from acceding to any compromise or arrangement in relation to any scheme of arrangement or scheme for reconstruction or amalgamation involving any such investment. JOHP will not forward to the Client any circulars, notices or proxy cards received in respect of investments comprised in the Portfolio. FEES, COMMISSIONS AND EXPENSES 28. (a) The Client will pay a management fee to JOHP in respect of the period beginning with first receipt by JOHP of any investments or money from the Client and ending with a Valuation Date (as defined in paragraph 24) and each period thereafter starting with the day after any Valuation Date and ending on the next Valuation Date (or the Termination Date as defined in paragraph 39 if sooner). (b) The management fee shall be calculated in accordance with the 'Scale Rates and Charges' set out in Schedule III. (c) The management fee shall be payable not later than 14 days after despatch to the Client of an invoice which shall be sent to the Client as soon as is reasonably practicable after each Valuation Date. Unless otherwise instructed the Client's Capital Account will be debited with the amounts due to JOHP on the 14th day after despatch of such invoice. (d) In addition the Client shall reimburse JOHP for any expenses or liabilities which it may incur in properly carrying out its duties hereunder. 29. The management fee shall be deemed to have accrued on a day-to-day basis, so that, if this Agreement commences or terminates other than on a Valuation Date (as defined in paragraph 24), the amount of the fee shall be duly apportioned. 30. Commissions (as set out in Schedule III) will be payable by the Client on purchases and sales of investments together with all expenses including stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The Client recognises that JOHP may gain a commission benefit from dealing in a bulk purchase or sale on behalf of JOHP's Page 150 of 258 Pages clients, one of whom may be the Client, or from return commissions which benefit JOHP shall be entitled to retain. JOHP will be free to accept and retain as an addition to its fees and commissions any other commissions which it receives in the course of its dealing on the Client's behalf: all such benefits and receipts shall supplement any other remuneration receivable by JOHP in connection with transactions effected by JOHP with or for the Client under this or any other agreement with the Client and the Client consents to all such benefits and receipts as are referred to above without prior disclosure of the same to the Client on a case-by-case basis provided that JOHP undertakes to secure for the Client best execution of all transactions effected with or through a party from whom JOHP receives such benefits and commissions, disregarding any benefit which the Client might obtain directly or indirectly as a result of such arrangements. 31. JOHP shall be entitled to alter the manner of computing or charging its fees, commissions and expenses or of paying interest on the money held on the Client's behalf in the Capital Account (including with prejudice to the generality of the foregoing its scale rates and charges) by giving one month's prior notice in writing to the Client. RESPONSIBILITY AND INSURANCE 32. JOHP will indemnify the Client in respect of any loss incurred as a result of negligence, wilful default or fraud by JOHP or any of its employees. Subject to the above, JOHP will not be responsible or liable for any claim, loss, damage, expense or costs arising by reason of any of the following: (a) any investment decision taken and acted upon in accordance with the terms of this Agreement; or (b) any delay or default in the performance of its obligations under this Agreement arising in consequence of any event or circumstance beyond the reasonable control of JOHP; or (c) any act or omission on the part of any of the banks or nominee companies controlled by them or other eligible custodians as referred to in paragraph 15 or any other person to which any of them shall have delegated its function or on the part of any other third party whatsoever; or (d) any consequential loss suffered in consequence of any act or omission of JOHP or any breach of JOHP of any term of this Agreement. 33. The Client agrees to indemnify and keep indemnified JOHP from and against all demands, claims, liabilities, losses, damages, costs and expenses whatsoever incurred by JOHP arising out of the breach by the Client of any warranty or by reason of any failure by the Client to comply with and/or perform any of the terms and conditions contained in this Agreement. Page 151 of 258 Pages 34. Where the Client is a joint account (whether or not a trust account) JOHP shall unless and until otherwise directed in writing by all the persons named in the joint account, be entitled to act on the instructions of any of them and shall not in any whatsoever be liable to the others for doing so. 35. JOHP has effected insurance to provide for the protection of the Client against losses arising from any negligence of JOHP or any dishonesty of employees of JOHP. 36. Under Section 54 of the Financial Services Act 1986 The Securities and Investments Board has established a scheme for compensating investors by which the Client may be entitled to compensation in the event of JOHP's inability to meet any liabilities to the Client. JOHP will make available to the Client upon request a statement describing the Client's rights to compensation under the scheme. DELEGATION AND USE OF AGENTS 37. JOHP may delegate any of its functions under this Agreement to an Associate and may provide information about the Client and the Portfolio to any such Associate but JOHP's liability to the Client for all matters so delegated shall not be affected thereby. JOHP shall give to the Client written notice of any delegation of a function which involves the exercise of its discretionary investment management powers. 38. JOHP may employ agents (including Associates) to perform any administrative, dealing, custodial and ancillary services required to enable JOHP to perform its services under this Agreement. JOHP undertakes to act in good faith and with due diligence in the choice and use of such agents. TERMINATION OF AGREEMENT 39. This Agreement may be terminated by either party by giving written notice of termination to the other at any time. Termination shall take effect on the day upon which the other party actually receives the notice (the "Termination Date") provided that, where the Client is a joint account, notice of termination by JOHP shall be given to every person named in the joint account and in such circumstances the Termination Date shall be deemed to be the day after the date of posting by first class recorded delivery or other appropriate means to all persons named in the joint account. 40. Upon the Termination Date, JOHP will complete expeditiously all transactions in progress at termination but will not execute any further transactions for the Client. Upon all fees, commissions, expenses and other sums due to it and any other liabilities for which it may be or become liable in connection with the management of the Portfolio being settled or adequately secured to the satisfaction of JOHP, JOHP will ensure that all investments and cash balances held on the Client's behalf will, after any outstanding security registration, stock exchange settlements and other administrative matters have been completed and as soon as reasonably practicable, be transferred to the Client or dealt with in accordance with the Client's instructions, in all cases at the cost of the Client. Page 152 of 258 Pages 41. Termination will not affect accrued rights, existing commitments or any contractual provision intended to survive termination and will be without penalty or other additional payment except that JOHP may charge the Client an amount equal to: (a) the relevant proportion of the management fee, corresponding to that part of the period ending on a Valuation Date by reference to which fees are payable, which has expired when this Agreement is terminated; (b) any additional expenses which JOHP necessarily incurs in terminating this Agreement; and (c) any losses necessarily realised in settling or concluding outstanding obligations. 42. The death, bankruptcy or other incapacity or, in the case of a body corporate, the cessation of business of the Client or a petition being presented or a meeting being convened to consider a resolution for the liquidation of the Client shall not of itself terminate JOHP's appointment; but JOHP may at its discretion treat its receipt of actual notice of any such events as if it were a written notice of termination from the Client. 43. If the Client is a joint account the Client's obligations under this Agreement shall be joint and several. On the death of any of the persons constituting the Client (being survived by any such other person), the Agreement shall not terminate and, except in the case of trustees, the interest of the deceased in the Portfolio shall automatically enure to the benefit of the survivor(s) unless otherwise specified by notice in writing to JOHP. CLIENT WARRANTIES 44. The Client warrants that the Client is the beneficial owner (or the duly authorised agent of the beneficial owner) of the whole of the Portfolio free from all liens, charges, encumbrances and restrictions on transfer except insofar as advised by the Client to JOHP, and will so remain during the currency of this Agreement. 45. The Client warrants that the Client is empowered to enter into this Agreement without the consent or authority of any other party and in the case of a Client being a body corporate the Client warrants that by entering into this Agreement it is not nor will it be in breach of its Memorandum or Articles of Association or any other relevant document. GENERAL 46. Terms and expressions defined in the rules of IMRO for the time being in force shall where the context so admits bear the same meaning in this Agreement. 47. The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. 48. The Schedules to this Agreement are an integral part of it. Page 153 of 258 Pages 49. If the Client is an individual this Agreement shall be binding on his legal personal representatives. 50. This Agreement is personal to the parties hereto and shall not be capable of assignment. 51. Subject to clause 31, no change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. 52. Notice required or authorised to be served hereunder must be addressed to the address of the recipient stated above or to such other address as may have been notified in writing by either party hereto to the other as its address for the service of notices. In the case of notice served by the Client from outside the United Kingdom and of notice served upon the Client at an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client at an address within the United Kingdom the notice shall be sufficiently served if served by pre-paid letter. 53. If the Client makes a complaint to JOHP verbally or in writing about any service JOHP has rendered to the Client under this Agreement the complaint shall immediately be referred to JOHP's Chief Executive or to a Senior Investment Manager who was not involved in the circumstances relating to the complaint and who will investigate such circumstances. Upon the conclusion of his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter which is the subject of the complaint. The Client has the right to refer any complaint to IMRO if the Client is not satisfied with the action taken by the Chief Executive or Senior Investment Manager, and in any event has the right to make the complaint direct to IMRO or the Investment Ombudsman without prior reference to JOHP. 54. Each party to this Agreement shall respect and protect the confidentiality of information acquired in consequence of it and shall not disclose such information to any third party save in the course of giving effect to this Agreement or as may be required by law, or where requested by regulatory authorities, or to their professional advisors where reasonably necessary for the performance of their professional services. 55. This Agreement is subject to English law and the parties hereto hereby submit to the jurisdiction of the English Courts in respect of it. Page 154 of 258 Pages SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio (see attached letter/opening valuation - where applicable) SCHEDULE II INVESTMENT POLICY, GUIDELINES AND RESTRICTIONS PART I - Investment Policy including basis of measurement of performance The investment objectives are to maintain a maximum total return commensurate with safety and the protection of the underlying value of the capital of the fund. The performance will be measured against the F.T. All Share Index, any other appropriate Index or measure of performance agreed upon by JOHP and the Client. PART II - Guidelines and Restrictions 1. There will be no restrictions placed on the types of investment in which the money comprised in the Portfolio will be invested provided that the services to be provided by JOHP will not include advising on or effecting Contingent Liability Transactions, nor will they, without the express prior authority of the Client, relate to options, futures or contracts for differences (or to any right or interest in such investments). 2. The contents of the Portfolio may be invested in any market save for the following. There shall be no restriction on the amount of monies or proportion of the Portfolio invested in any one investment or type of investment permitted hereunder provided that, subject to the provisions relating to overdraft contained in paragraph 6 of this Agreement, under no circumstances will JOHP make investments on behalf of the Client to a value in excess of the aggregate of the value of the funds and securities held by JOHP on behalf of the Client in the accounts referred to in paragraph 16 of this Agreement. PART III - Risk Warnings and Risk Disclosure Statement Page 155 of 258 Pages Investments Denominated in Foreign Currencies If a liability of the Client in one currency is to be matched by an asset in a different currency, or if JOHP provides services under this Agreement relating to an investment denominated in a foreign currency, a movement in exchange rates may have an effect which may be either favourable or unfavourable on the investment, which effect may be separate from the gain or loss otherwise experienced on such investment. Investments not readily realisable Certain categories of investments comprised in the Portfolio may not be readily realisable. You should be aware that there can be no certainty that market makers or brokers will be prepared to deal in such investments and that proper information for determining their current value may not be available. Warrants A warrant is a right to subscribe for shares, debentures, loan stock or government securities, and is exercisable against the original issuer of the securities. Warrants often involve a high degree of gearing so that a relatively small movement in the price of the underlying security results in a disproportionately large movement, unfavourable as well as favourable, in the price of the warrant. The prices of warrants can therefore be volatile. Stabilisation This statement is made in compliance with Rule 14 of Chapter IV of the rules of IMRO. "We or our representatives may from time to time effect on your behalf or recommend to you transactions in securities which are the subject of a recent new issue where the price of those transactions may have been influenced by bids made or transactions effected for the purpose of stabilising the price of those securities. You should read the explanation below carefully. Its purpose is to enable you to judge whether you wish your funds to be invested at all in such securities or, if so, whether you wish to authorise us generally to effect transactions in such securities on your behalf without further reference to you or whether you wish to be consulted before any particular transaction is effected on your behalf. Stabilisation is a process whereby the market price of a security is pegged or fixed during the period in which a new issue of securities is sold to the public. Stabilisation may take place in the new issue or in other securities related to the new issue in such a way that the price of the other securities may affect the price of the new issue or vice versa. The reason stabilisation is permitted is that when a new issue is brought to market the sudden glut will sometimes force the price lower for a period of time before buyers are found for the securities on offer. As long as he obeys a strict set of rules the "stabilising manager", normally the issuing house chiefly responsible for bringing a new issue to market, is entitled to buy securities in the market that he has previously sold to investors or allotted to institutions who were included in Page 156 of 258 Pages the new issue but who have decided not to continue participating. The effect of this may be to keep the price at a higher level than would otherwise be the case during the period of stabilising. The rules limit the period in which he may stabilise, fix the price at which he may stabilise (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are interested in the new issue or interested in purchasing at the price at which transactions are taking place". Page 157 of 258 Pages SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 1% per annum on portfolios of up to (pounds)2,500,000 Large Portfolios (Over (pounds)2,500,000) - by negotiation COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST 1.25% on transactions up to (pounds)10,000 0.5% on transactions up to (pounds)10,000 0.50% thereafter 0.25% on the next (pounds)40,000 0.125% thereafter
(Minimum commissions (pounds)30 per contract) All transactions are subject to a handling charge of (pounds)12.50 per transaction in the case of UK registered securities ((pounds)20 for non-UK registered securities) VALUE ADDED TAX This will be charged on the fees shown above at the appropriate rate where applicable Page 158 of 258 Pages FOR JO HAMBRO & PARTNERS LIMITED 26th Feb. 1997 Date /s/ James Hambro - ------------------------------------- ------------------------------------- FOR THE CLIENT* 18 Feb. 1997 /s/ M. Wigan - ------------------------------------- ------------------------------------- /s/ L.G. Kapellar /s/ K.K. Watkiss - ------------------------------------- ------------------------------------- /s/ C.J. Barker - ------------------------------------- *The Client should sign here as follows. An Individual or Individuals. The individual should sign his/her usual signature and insert the date. Where the Client is a joint account all persons named in the joint account should sign. A Company. The Company's duly authorised signatory should sign and insert the date. Please let JOHP have a certified true copy of a Board resolution confirming the appointment of JOHP as investment manager and authorising the signature of the Agreement. Please provide an up-to-date copy of the Memorandum and Articles of Association and the Certificate of Incorporation which will be returned. A Trust of Pension Fund. All the trustees should sign and insert the date. Please let JOHP have a copy of the Trust Deed. A Partnership. All the partners should sign and insert the date. Page 159 of 258 Pages EX-99.(I) 10 INVSTMNT. MGMNT. AGRMNT. HAMBRO & CITY OF JOY CLIENT AGREEMENT CITY OF JOY LIMITED Page 160 of 258 Pages JO HAMBRO CAPITAL MANAGEMENT LIMITED ------------------------------------ Regulated by IMRO in the conduct of Investment Business DISCRETIONARY CLIENT AGREEMENT THIS INVESTMENT MANAGEMENT AGREEMENT is made the 25th day of February 1998 BETWEEN: (1) JO HAMBRO CAPITAL MANAGEMENT LIMITED ("JOHCMP") 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) City of Joy Ltd. (portfolio name) (hereafter known as the "Client") of Merrill Lynch Bank and Trust Company (Cayman) Ltd. P.O. Box 1164 British American Building, Phase III, 5th Floor, Dr. Roy's Drive, George Town, Grand Cayman, British West Indies (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 JOHCM 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 JOHCM (the "Portfolio") and JOHCM hereby agrees to manage and administer the Portfolio. The appointment will commence on the date on which this Agreement is delivered to JOHCM by the Client having been signed first by the Client then by JOHCM. The assets comprising the Portfolio and their opening value are set out in Schedule 1. MANAGEMENT OF INVESTMENTS 2. JOHCM 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 JOHCM and the Client and set out in Part 1 of Schedule II. Such policy shall be subject to the guidelines and restrictions set out in Part II of Schedule II and to any guidelines, restrictions and instructions specified in writing from time to time by the Client or by the Client's duly authorized agent (written notice of whose authority shall have been received by Page 161 of 258 Pages JOHCM). The Client's attention is specifically drawn to the warnings set out in Part III of Schedule II. 3. JOHCM 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 JOHCM 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 JOHCM 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 JOHCM to a third party except as otherwise agreed between the Client and JOHCM in writing. 6. JOHCM 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 JOHCM's duties hereunder to an extent which is not material in the context of the Portfolio taken as a whole. JOHCM 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. JOHCM may commit the Client to underwrite any issue or offer for sale of securities without the Client's prior written consent. 8. JOHCM may act as principal in any transaction for the Client provided that JOHCM shall secure for the Client best execution of such transaction. 9. Subject to the IMRO Rules, JOHCM may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. 10. JOHCM has the right under this Agreement to effect transactions on the Client's behalf in investments the price of which may be being stabilized. The attention of the Client is referred to the statement contained in Schedule II relating to stabilization. Signature of this Agreement by or on behalf of the Client shall act as acknowledgment by the Client of receipt of such statement prior to entry into this Agreement. CONFLICTS OF INTEREST 11. Subject to paragraphs 12 and 13, JOHCM shall not undertake any transactions on the Client's behalf in which JOHCM has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHCM's duty to the Client unless that interest or relationship is disclosed in writing to the Client. Page 162 of 258 Pages 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 JOHCM during the preceding twelve months. 13. The Client understands that JOHCM's directors or staff may from time to time hold shares or securities including holdings that may be in the Portfolio, and that JOHCM'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 JOHCM 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 JOHCM's management (or in a fund, company, trust or Collective Investment Scheme connected with JOHCM) if JOHCM 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 JOHCM 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 JOHCM. (b) In those cases where the Client is situated overseas or where the Client so requests by notice in writing to JOHCM, registerable investments will be registered in the name of an Eligible Custodian situated outside the United Kingdom and nominated by JOHCM. (c) All documents of title (including those in bearer form) will be retained in the custody of an Eligible Custodian nominated by JOHCM and situated in the United Kingdom or overseas as applicable. (d) None of the Eligible Custodians as aforesaid shall be Associates of JOHCM. However, the Client's registerable investments may at any time be registered in the name of a nominee company which is an Associate of JOHCM and Client's documents of title may be held by that Associate at any time after JOHCM 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 JOHCM. (a) INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 5 and 6, JOHCM shall not lend the Client's investments to any third party and shall Page 163 of 258 Pages 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 JOHCM. 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 JOHCM and will be credited with the net proceeds of sales on the Client's behalf. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will be paid on sums standing to the credit of the account and held on the Client's behalf at the prevailing market rate. The interest will be paid quarterly and will be credited to the Income Account on the Client's behalf. (c) SETTLEMENT ACCOUNT Money debited to the Capital Account in respect of the cost of purchases made on the Client's behalf and money received and receivable upon settlement of each sale made on the Client's behalf will be credited to this account and held there until the relevant settlement date. (d) INCOME ACCOUNT Dividends and interest received on investments within the Portfolio will be credited to this account. Balances on the account will be paid away quarterly in accordance with the Client's instructions or, in the absence of such instructions, will be transferred quarterly to the Capital Account as soon as reasonably practicable after the last day of each such quarter being 5th April, 30th June, 5th October and 31st December in each year. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will not be paid on monies held in this account. (d) OFF-SHORE FUNDS In those cases where the Client is situated overseas or if the Client notifies JOHCM in writing that the Client wishes cash in the Portfolio to be held outside the United Kingdom, JOHCM 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 JOHCM to realise any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. 18. JOHCM 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 Page 164 of 258 Pages 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 JOHCM, 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. JOHCM 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 JOHCM or to which JOHCM has access relating to the transactions effected by JOHCM on the Client's behalf and those records will be maintained by JOHCM or JOHCM 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 JOHCM in writing of any changes of address, and that JOHCM will not be responsible for any consequences which may arise from failure to do so. REVIEWS AND VALUATIONS 24. JOHCM 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 JOHCM and the Client. Such reviews shall be prepared as at such half yearly or other dates as shall be agreed between JOHCM and the Client from time to time (each such date being referred to as a "Valuation Date"), and JOHCM 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 JOHCM Page 165 of 258 Pages (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 JOHCM 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 JOHCM or such other person selected by JOHCM) as shall in JOHCM's opinion be fair. 26. JOHCM accepts no liability for any period longer than 25 business days between any Valuation Date and the despatch of a review to the Client of his Portfolio which has elapsed as a result of any act or omission of any third party. VOTING AND OTHER RIGHTS 27. JOHCM 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. JOHCM 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 JOHCM in respect of the period beginning with first receipt by JOHCM 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 JOHCM on the 14th day after despatch of such invoice. (d) In addition the Client shall reimburse JOHCM for any expenses or liabilities which it may incur in properly carrying out its duties hereunder. Pages 166 of 258 Pages 29. The management fee shall be deemed to have accrued on a day-to-day basis, so that, if this Agreement commences or terminates other than on a Valuation Date (as defined in paragraph 24), the amount of the fee shall be duly apportioned. 30. Commissions (as set out in Schedule III) will be payable by the Client on purchases and sales of investments together with all expenses including stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The Client recognises that JOHCM may gain a commission benefit from dealing in a bulk purchase or sale on behalf of JOHCM's clients, one of whom may be the Client, or from return commissions which benefit JOHCM shall be entitled to retain. JOHCM 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 JOHCM in connection with transactions effected by JOHCM 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 JOHCM undertakes to secure for the Client best execution of all transactions effected with or through a party from whom JOHCM receives such benefits and commissions, disregarding any benefit which the Client might obtain directly or indirectly as a result of such arrangements. 31. JOHCM 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. JOHCM will indemnify the Client in respect of any loss incurred as a result of negligence, wilful default or fraud by JOHCM or any of its employees. Subject to the above, JOHCM 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 JOHCM; 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 JOHCM or any breach of JOHCM of any term of this Agreement. Page 167 of 258 Pages 33. The Client agrees to indemnify and keep indemnified JOHCM from and against all demands, claims, liabilities, losses, damages, costs and expenses whatsoever incurred by JOHCM 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) JOHCM 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. JOHCM has effected insurance to provide for the protection of the Client against losses arising from any negligence of JOHCM or any dishonesty of employees of JOHCM. 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 JOHCM's inability to meet any liabilities to the Client. JOHCM 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. JOHCM 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 JOHCM's liability to the Client for all matters so delegated shall not be affected thereby. JOHCM shall give to the Client written notice of any delegation of a function which involves the exercise of its discretionary investment management powers. 38. JOHCM may employ agents (including Associates) to perform any administrative, dealing, custodial and ancillary services required to enable JOHCM to perform its services under this Agreement. JOHCM 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 JOHCM 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, JOHCM 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 JOHCM, JOHCM Page 168 of 258 Pages 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 JOHCM 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 JOHCM necessarily incurs in terminating this Agreement; and (c) any losses necessarily realised in settling or concluding outstanding obligations. 42. The death, bankruptcy or other incapacity or, in the case of a body corporate, the cessation of business of the Client or a petition being presented or a meeting being convened to consider a resolution for the liquidation of the Client shall not of itself terminate JOHCM's appointment; but JOHCM 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 JOHCM. CLIENT WARRANTIES 44. The Client warrants that the Client is the beneficial owner (or the duly authorised agent of the beneficial owner) of the whole of the Portfolio free from all liens, charges, encumbrances and restrictions on transfer except insofar as advised by the Client to JOHCM, 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 Page 169 of 258 Pages 46. Terms and expressions defined in the rules of IMRO for the time being in force shall where the context so admits bear the same meaning in this Agreement. 47. The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. 48. The Schedules to this Agreement are an integral part of it. 49. If the Client is an individual this Agreement shall be binding on his legal personal representatives. 50. This Agreement is personal to the parties hereto and shall not be capable of assignment. 51. Subject to clause 31, no change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. 52. Notice required or authorised to be served hereunder must be addressed to the address of the recipient stated above or to such other address as may have been notified in writing by either party hereto to the other as its address for the service of notices. In the case of notice served by the Client from outside the United Kingdom and of notice served upon the Client at an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client at an address within the United Kingdom the notice shall be sufficiently served if served by pre-paid letter. 53. If the Client makes a complaint to JOHCM verbally or in writing about any service JOHCM has rendered to the Client under this Agreement the complaint shall immediately be referred to JOHCM's Chief Executive or to a Senior Investment Manager who was not involved in the circumstances relating to the complaint and who will investigate such circumstances. Upon the conclusion of his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter which is the subject of the complaint. The Client has the right to refer any complaint to IMRO if the Client is not satisfied with the action taken by the Chief Executive or Senior Investment Manager, and in any event has the right to make the complaint direct to IMRO or the Investment Ombudsman without prior reference to JOHCM. 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 170 of 258 Pages SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio (see attached letter/opening valuation - where applicable) SCHEDULE II PART I - Investment Policy, Benchmarks, Guidelines and Restrictions Investment Policy, Benchmarks, Guidelines and Restrictions are to be recorded on the accompanying Investment Strategy Schedule which forms a part of the Client Questionnaire. JOHCM may from time to time require this form to be updated in order that the Client's requirements are accurately recorded. PART II - Risk Warnings, Risk Disclosure Statement and Soft Commission 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 JOHCM provides services under this Agreement relating to an investment denominated in a foreign currency, a movement in exchange rates may have an effect which may be either favourable or unfavourable on the investment, which effect may be separate from the gain or loss otherwise experienced on such investment. Investments not readily realisable Certain categories of investments comprised in the Portfolio may not be readily realisable. You should be aware that there can be no certainty that market makers or brokers will be prepared to deal in such investments and that proper information for determining their current value may not be available. Warrants A warrant is a right to subscribe for shares, debentures, loan stock or government securities, and is exercisable against the original issuer of the securities. Warrants often involve a high degree of gearing so that a relatively small movement in the price of the underlying security results in a disproportionately large movement, unfavourable as well as favourable, in the price of the warrant. The prices of warrants can therefore be volatile. Stabilisation This statement is made in compliance with Rule 14 of Chapter IV of the rules of IMRO. Page 171 of 258 Pages "We or our representatives may from time to time effect on your behalf or recommend to you transactions in securities which are the subject of a recent new issue where the price of those transactions may have been influenced by bids made or transactions effected for the purpose of stabilising the price of those securities. You should read the explanation below carefully. Its purpose is to enable you to judge whether you wish your funds to be invested at all in such securities or, if so, whether you wish to authorise us generally to effect transactions in such securities on your behalf without further reference to you or whether you wish to be consulted before any particular transaction is effected on your behalf. Stabilisation is a process whereby the market price of a security is pegged or fixed during the period in which a new issue of securities is sold to the public. Stabilisation may take place in the new issue or in other securities related to the new issue in such a way that the price of the other securities may affect the price of the new issue or vice versa. The reason stabilisation is permitted is that when a new issue is brought to market the sudden glut will sometimes force the price lower for a period of time before buyers are found for the securities on offer. As long as he obeys a strict set of rules the "stabilising manager", normally the issuing house chiefly responsible for bringing a new issue to market, is entitled to buy securities in the market that he has previously sold to investors or allotted to institutions who were included in the new issue but who have decided not to continue participating. The effect of this may be to keep the price at a higher level than would otherwise be the case during the period of stabilising. The rules limit the period in which he may stabilise, fix the price at which he may stabilise (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are interested in the new issue or interested in purchasing at the price at which transactions are taking place". Soft Commission JOHCM has entered into agreements with each of Southcoast Capital Corporation and Wheat First Butcher Singer (US brokers), whereby they have agreed to pay the costs of JOHCM's on-line Reuters and First Call computerised analysis services. These arrangements are known as soft commission agreements. It is JOHCM's policy to enter into soft commission agreements where it believes that such arrangements will benefit its clients. The existence of these soft commission agreements does not deflect from JOHCM's obligation to provide best execution in respect of any transaction JOHCM executes on behalf of it Clients. PART III - Application of Client Money Regulations to Offshore Accounts Page 172 of 258 Pages Any uninvested cash in the Client's Portfolio not invested in US Treasury Bills will be held in designated client bank accounts with Bank of Scotland (Isle of Man) Ltd. The Bank of Scotland (Isle of Man) Ltd. has acknowledged in writing that (i) all money held to the credit of such accounts is held by JOHCM as trustee, and that it is not entitled to combine the accounts with any other account or to exercise any right of set-off or counterclaim against money in those accounts in respect of any sum owed on any of JOHCM's other accounts, (ii) that interest earned on these accounts shall be accredited to such accounts or to accounts of that type, and (iii) that the title of these accounts sufficiently distinguishes those accounts from any accounts containing money belonging to JOHCM, and are in the form requested by JOHCM. By signing and returning this contract the Client agrees that it is happy for its uninvested cash to be held in accounts with the Bank of Scotland (Isle of Man) Ltd. on the terms set out in this agreement. Page 173 of 258 Pages SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 0.3% COMMISSION RATES EQUITIES GILTS/FIXED INTEREST 0.50% 0.5% on transactions up to $20,000 0.25% on the next $80,000 0.125% thereafter (Minimum commissions (Pounds)30 per contract) All transactions are subject to a handling charge of $20 per transaction in the case of UK registered securities ($30 for non-UK registered securities) VALUE ADDED TAX This will be charged on the fees shown above at the appropriate rate where applicable Page 174 of 258 Pages FOR JO HAMBRO CAPITAL MANAGEMENT 25/2/98 /s/ R. C. O. Hellyer - --------------------------------- ------------------------------------ (Date) FOR THE CLIENT* Authorised Signatories for and on behalf of Fiduciary Services Limited as sole director of City of Joy Ltd. 3/2/98 /s/ signature appears here - --------------------------------- ------------------------------------ (Date) *The Client should sign here as follows. An Individual or Individuals. The individual should sign his/her usual signature and insert the date. Where the Client is a joint account all persons named in the joint account should sign. A Company. The Company's duly authorised signatory should sign and insert the date. Please let JOHCM have a certified true copy of a Board resolution confirming the appointment of JOHCM as investment manager and authorising the signature of the Agreement. Please provide an up-to-date copy of the Memorandum and Articles of Association and the Certificate of Incorporation which will be returned. A Trust of Pension Fund. All the trustees should sign and insert the date. Please let JOHCM have a copy of the Trust Deed. A Partnership. All the partners should sign and insert the date. Page 175 of 258 Pages EX-99.(J) 11 INVSTMNT. MGMNT. AGRMNT. HAMBRO & LABRADOR TRUST CLIENT AGREEMENT LABRADOR TRUST Page 176 of 258 Pages JO HAMBRO CAPITAL MANAGEMENT LIMITED ------------------------------------ Regulated by IMRO in the conduct of Investment Business DISCRETIONARY CLIENT AGREEMENT THIS INVESTMENT MANAGEMENT AGREEMENT is made the 19th day of December 1997 BETWEEN: (1) JO HAMBRO CAPITAL MANAGEMENT LIMITED ("JOHCMP") 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) Labrador ------------------------------------------------------(portfolio name) (hereafter known as the "Client") of ---------------------------------------------------------------------- ---------------------------------------------------------------------- (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 JOHCM 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 JOHCM (the "Portfolio") and JOHCM hereby agrees to manage and administer the Portfolio. The appointment will commence on the date on which this Agreement is delivered to JOHCM by the Client having been signed first by the Client then by JOHCM. The assets comprising the Portfolio and their opening value are set out in Schedule 1. MANAGEMENT OF INVESTMENTS 2. JOHCM 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 JOHCM and the Client and set out in Part 1 of Schedule II. Such policy shall be subject to the guidelines and restrictions set out in Part II of Schedule II and to any guidelines, restrictions and instructions specified in writing from time to time by the Client or by the Client's duly authorized agent (written notice of whose authority shall have been received by JOHCM). The Client's attention is specifically drawn to the warnings set out in Part III of Schedule II. Page 177 of 258 Pages 3. JOHCM 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 JOHCM 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 JOHCM 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 JOHCM to a third party except as otherwise agreed between the Client and JOHCM in writing. 6. JOHCM 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 JOHCM's duties hereunder to an extent which is not material in the context of the Portfolio taken as a whole. JOHCM 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. JOHCM may commit the Client to underwrite any issue or offer for sale of securities without the Client's prior written consent. 8. JOHCM may act as principal in any transaction for the Client provided that JOHCM shall secure for the Client best execution of such transaction. 9. Subject to the IMRO Rules, JOHCM may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. 10. JOHCM has the right under this Agreement to effect transactions on the Client's behalf in investments the price of which may be being stabilized. The attention of the Client is referred to the statement contained in Schedule II relating to stabilization. Signature of this Agreement by or on behalf of the Client shall act as acknowledgment by the Client of receipt of such statement prior to entry into this Agreement. CONFLICTS OF INTEREST 11. Subject to paragraphs 12 and 13, JOHCM shall not undertake any transactions on the Client's behalf in which JOHCM has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHCM's duty to the Client unless that interest or relationship is disclosed in writing to the Client. Page 178 of 258 Pages 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 JOHCM during the preceding twelve months. 13. The Client understands that JOHCM's directors or staff may from time to time hold shares or securities including holdings that may be in the Portfolio, and that JOHCM'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 JOHCM 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 JOHCM's management (or in a fund, company, trust or Collective Investment Scheme connected with JOHCM) if JOHCM 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 JOHCM 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 JOHCM. (b) In those cases where the Client is situated overseas or where the Client so requests by notice in writing to JOHCM, registerable investments will be registered in the name of an Eligible Custodian situated outside the United Kingdom and nominated by JOHCM. (c) All documents of title (including those in bearer form) will be retained in the custody of an Eligible Custodian nominated by JOHCM and situated in the United Kingdom or overseas as applicable. (d) None of the Eligible Custodians as aforesaid shall be Associates of JOHCM. However, the Client's registerable investments may at any time be registered in the name of a nominee company which is an Associate of JOHCM and Client's documents of title may be held by that Associate at any time after JOHCM 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 JOHCM. (a) INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 5 and 6, JOHCM shall not lend the Client's investments to any third party and Page 179 of 258 Pages 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 JOHCM. 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 JOHCM and will be credited with the net proceeds of sales on the Client's behalf. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will be paid on sums standing to the credit of the account and held on the Client's behalf at the prevailing market rate. The interest will be paid quarterly and will be credited to the Income Account on the Client's behalf. (c) SETTLEMENT ACCOUNT Money debited to the Capital Account in respect of the cost of purchases made on the Client's behalf and money received and receivable upon settlement of each sale made on the Client's behalf will be credited to this account and held there until the relevant settlement date. (d) INCOME ACCOUNT Dividends and interest received on investments within the Portfolio will be credited to this account. Balances on the account will be paid away quarterly in accordance with the Client's instructions or, in the absence of such instructions, will be transferred quarterly to the Capital Account as soon as reasonably practicable after the last day of each such quarter being 5th April, 30th June, 5th October and 31st December in each year. Money drawn on behalf of the Client from the account shall not exceed the total of money held in the account on behalf of the Client at that time. Interest will not be paid on monies held in this account. (d) OFF-SHORE FUNDS In those cases where the Client is situated overseas or if the Client notifies JOHCM in writing that the Client wishes cash in the Portfolio to be held outside the United Kingdom, JOHCM 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 JOHCM to realise any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. 18. JOHCM 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 Page 180 of 258 Pages 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 JOHCM, 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. JOHCM 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 JOHCM or to which JOHCM has access relating to the transactions effected by JOHCM on the Client's behalf and those records will be maintained by JOHCM or JOHCM 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 JOHCM in writing of any changes of address, and that JOHCM will not be responsible for any consequences which may arise from failure to do so. REVIEWS AND VALUATIONS 24. JOHCM 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 JOHCM and the Client. Such reviews shall be prepared as at such half yearly or other dates as shall be agreed between JOHCM and the Client from time to time (each such date being referred to as a "Valuation Date"), and JOHCM 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 JOHCM Page 181 of 258 Pages (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 JOHCM 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 JOHCM or such other person selected by JOHCM) as shall in JOHCM's opinion be fair. 26. JOHCM accepts no liability for any period longer than 25 business days between any Valuation Date and the despatch of a review to the Client of his Portfolio which has elapsed as a result of any act or omission of any third party. VOTING AND OTHER RIGHTS 27. JOHCM 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. JOHCM 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 JOHCM in respect of the period beginning with first receipt by JOHCM 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 JOHCM on the 14th day after despatch of such invoice. (d) In addition the Client shall reimburse JOHCM for any expenses or liabilities which it may incur in properly carrying out its duties hereunder. Page 182 of 258 Pages 29. The management fee shall be deemed to have accrued on a day-to-day basis, so that, if this Agreement commences or terminates other than on a Valuation Date (as defined in paragraph 24), the amount of the fee shall be duly apportioned. 30. Commissions (as set out in Schedule III) will be payable by the Client on purchases and sales of investments together with all expenses including stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The Client recognises that JOHCM may gain a commission benefit from dealing in a bulk purchase or sale on behalf of JOHCM's clients, one of whom may be the Client, or from return commissions which benefit JOHCM shall be entitled to retain. JOHCM 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 JOHCM in connection with transactions effected by JOHCM 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 JOHCM undertakes to secure for the Client best execution of all transactions effected with or through a party from whom JOHCM receives such benefits and commissions, disregarding any benefit which the Client might obtain directly or indirectly as a result of such arrangements. 31. JOHCM 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. JOHCM will indemnify the Client in respect of any loss incurred as a result of negligence, wilful default or fraud by JOHCM or any of its employees. Subject to the above, JOHCM 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 JOHCM; 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 JOHCM or any breach of JOHCM of any term of this Agreement. Page 183 of 258 Pages 33. The Client agrees to indemnify and keep indemnified JOHCM from and against all demands, claims, liabilities, losses, damages, costs and expenses whatsoever incurred by JOHCM 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) JOHCM 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. JOHCM has effected insurance to provide for the protection of the Client against losses arising from any negligence of JOHCM or any dishonesty of employees of JOHCM. 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 JOHCM's inability to meet any liabilities to the Client. JOHCM 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. JOHCM 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 JOHCM's liability to the Client for all matters so delegated shall not be affected thereby. JOHCM shall give to the Client written notice of any delegation of a function which involves the exercise of its discretionary investment management powers. 38. JOHCM may employ agents (including Associates) to perform any administrative, dealing, custodial and ancillary services required to enable JOHCM to perform its services under this Agreement. JOHCM 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 JOHCM 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, JOHCM 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 JOHCM, JOHCM Page 184 of 258 Pages 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 JOHCM 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 JOHCM necessarily incurs in terminating this Agreement; and (c) any losses necessarily realised in settling or concluding outstanding obligations. 42. The death, bankruptcy or other incapacity or, in the case of a body corporate, the cessation of business of the Client or a petition being presented or a meeting being convened to consider a resolution for the liquidation of the Client shall not of itself terminate JOHCM's appointment; but JOHCM 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 JOHCM. CLIENT WARRANTIES 44. The Client warrants that the Client is the beneficial owner (or the duly authorised agent of the beneficial owner) of the whole of the Portfolio free from all liens, charges, encumbrances and restrictions on transfer except insofar as advised by the Client to JOHCM, 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 Page 185 of 258 Pages 46. Terms and expressions defined in the rules of IMRO for the time being in force shall where the context so admits bear the same meaning in this Agreement. 47. The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. 48. The Schedules to this Agreement are an integral part of it. 49. If the Client is an individual this Agreement shall be binding on his legal personal representatives. 50. This Agreement is personal to the parties hereto and shall not be capable of assignment. 51. Subject to clause 31, no change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. 52. Notice required or authorised to be served hereunder must be addressed to the address of the recipient stated above or to such other address as may have been notified in writing by either party hereto to the other as its address for the service of notices. In the case of notice served by the Client from outside the United Kingdom and of notice served upon the Client at an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client at an address within the United Kingdom the notice shall be sufficiently served if served by pre-paid letter. 53. If the Client makes a complaint to JOHCM verbally or in writing about any service JOHCM has rendered to the Client under this Agreement the complaint shall immediately be referred to JOHCM's Chief Executive or to a Senior Investment Manager who was not involved in the circumstances relating to the complaint and who will investigate such circumstances. Upon the conclusion of his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter which is the subject of the complaint. The Client has the right to refer any complaint to IMRO if the Client is not satisfied with the action taken by the Chief Executive or Senior Investment Manager, and in any event has the right to make the complaint direct to IMRO or the Investment Ombudsman without prior reference to JOHCM. 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 186 of 258 Pages SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio (see attached letter/opening valuation - where applicable) SCHEDULE II PART I - Investment Policy, Benchmarks, Guidelines and Restrictions Investment Policy, Benchmarks, Guidelines and Restrictions are to be recorded on the accompanying Investment Strategy Schedule which forms a part of the Client Questionnaire. JOHCM may from time to time require this form to be updated in order that the Client's requirements are accurately recorded. PART II - Risk Warnings, Risk Disclosure Statement and Soft Commission 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 JOHCM provides services under this Agreement relating to an investment denominated in a foreign currency, a movement in exchange rates may have an effect which may be either favourable or unfavourable on the investment, which effect may be separate from the gain or loss otherwise experienced on such investment. Investments not readily realisable Certain categories of investments comprised in the Portfolio may not be readily realisable. You should be aware that there can be no certainty that market makers or brokers will be prepared to deal in such investments and that proper information for determining their current value may not be available. Warrants A warrant is a right to subscribe for shares, debentures, loan stock or government securities, and is exercisable against the original issuer of the securities. Warrants often involve a high degree of gearing so that a relatively small movement in the price of the underlying security results in a disproportionately large movement, unfavourable as well as favourable, in the price of the warrant. The prices of warrants can therefore be volatile. Stabilisation This statement is made in compliance with Rule 14 of Chapter IV of the rules of IMRO. Page 187 of 258 Pages "We or our representatives may from time to time effect on your behalf or recommend to you transactions in securities which are the subject of a recent new issue where the price of those transactions may have been influenced by bids made or transactions effected for the purpose of stabilising the price of those securities. You should read the explanation below carefully. Its purpose is to enable you to judge whether you wish your funds to be invested at all in such securities or, if so, whether you wish to authorise us generally to effect transactions in such securities on your behalf without further reference to you or whether you wish to be consulted before any particular transaction is effected on your behalf. Stabilisation is a process whereby the market price of a security is pegged or fixed during the period in which a new issue of securities is sold to the public. Stabilisation may take place in the new issue or in other securities related to the new issue in such a way that the price of the other securities may affect the price of the new issue or vice versa. The reason stabilisation is permitted is that when a new issue is brought to market the sudden glut will sometimes force the price lower for a period of time before buyers are found for the securities on offer. As long as he obeys a strict set of rules the "stabilising manager", normally the issuing house chiefly responsible for bringing a new issue to market, is entitled to buy securities in the market that he has previously sold to investors or allotted to institutions who were included in the new issue but who have decided not to continue participating. The effect of this may be to keep the price at a higher level than would otherwise be the case during the period of stabilising. The rules limit the period in which he may stabilise, fix the price at which he may stabilise (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are interested in the new issue or interested in purchasing at the price at which transactions are taking place". Soft Commission JOHCM has entered into agreements with each of Southcoast Capital Corporation and Wheat First Butcher Singer (US brokers), whereby they have agreed to pay the costs of JOHCM's on-line Reuters and First Call computerised analysis services. These arrangements are known as soft commission agreements. It is JOHCM's policy to enter into soft commission agreements where it believes that such arrangements will benefit its clients. The existence of these soft commission agreements does not deflect from JOHCM's obligation to provide best execution in respect of any transaction JOHCM executes on behalf of it Clients. PART III - Application of Client Money Regulations to Offshore Accounts Page 188 of 258 Pages Any uninvested cash in the Client's Portfolio not invested in US Treasury Bills will be held in designated client bank accounts with Bank of Scotland (Isle of Man) Ltd. The Bank of Scotland (Isle of Man) Ltd. has acknowledged in writing that (i) all money held to the credit of such accounts is held by JOHCM as trustee, and that it is not entitled to combine the accounts with any other account or to exercise any right of set-off or counterclaim against money in those accounts in respect of any sum owed on any of JOHCM's other accounts, (ii) that interest earned on these accounts shall be accredited to such accounts or to accounts of that type, and (iii) that the title of these accounts sufficiently distinguishes those accounts from any accounts containing money belonging to JOHCM, and are in the form requested by JOHCM. By signing and returning this contract the Client agrees that it is happy for its uninvested cash to be held in accounts with the Bank of Scotland (Isle of Man) Ltd. on the terms set out in this agreement. Page 189 of 258 Pages SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 0.5% COMMISSION RATES EQUITIES GILTS/FIXED INTEREST 1.25% on transactions up to (Pounds)10,000 0.5% on transactions up to 0.50% thereafter (Pounds)10,000 0.25% on the next (Pounds)40,000 0.125% thereafter (Minimum commissions (Pounds)30 per contract) All transactions are subject to a handling charge of (Pounds)12.50 per transaction in the case of UK registered securities ((Pounds)20 for non-UK registered securities) VALUE ADDED TAX This will be charged on the fees shown above at the appropriate rate where applicable Page 190 of 258 Pages FOR JO HAMBRO CAPITAL MANAGEMENT 19th December 1997 /s/ R. C. O. Hellyer - ----------------------------------------------- -------------------------- (Date) FOR THE CLIENT* 19th December 1997 /s/ signature appears here - ----------------------------------------------- -------------------------- (Date) *The Client should sign here as follows. An Individual or Individuals. The individual should sign his/her usual signature and insert the date. Where the Client is a joint account all persons named in the joint account should sign. A Company. The Company's duly authorised signatory should sign and insert the date. Please let JOHCM have a certified true copy of a Board resolution confirming the appointment of JOHCM as investment manager and authorising the signature of the Agreement. Please provide an up-to-date copy of the Memorandum and Articles of Association and the Certificate of Incorporation which will be returned. A Trust of Pension Fund. All the trustees should sign and insert the date. Please let JOHCM have a copy of the Trust Deed. A Partnership. All the partners should sign and insert the date. Page 191 of 258 Pages EX-99.(K) 12 INVSTMNT. MGMNT. AGRMNT. HAMBRO & R. C. BONSOR CLIENT AGREEMENT R. C. BONSOR WILL TRUST Page 192 of 258 Pages J.O HAMBRO INVESTMENT MANAGEMENT -------------------------------- THIS INVESTMENT MANAGEMENT AGREEMENT is made BETWEEN, (1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") a member of the Investment Management Regulatory Organization Limited ("IMRO") whose registered office is at 30 Queen Anne's Gate London SW1H 9AL; and (2) R.C. Bonsor Will Trust (the "Client") of c/o Morley and Scott, Lynton House, 7-12 Tanstock Square, London WCIH 9LT WHEREBY IT IS AGREED as follows: 56. APPOINTMENT The Client hereby appoints JOHIM to act as investment manager, subject to the terms and conditions hereof in relation to the Client's investment 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 and to render advice to the Client from time to time in connection with the Portfolio. The Portfolio as at the date of this Agreement is comprised of the investments and cash as set out and valued in Schedule I. 57. AUTHORIZED BUSINESS The business which JOHIM is authorized by IMRO to conduct is the giving of investment advice in relation to, and the management of, the portfolios of private and business customers and the arranging of transactions relating to investments of any kind for all types of customers. 58. MANAGEMENT OF INVESTMENTS (a) JOHIM shall, subject to paragraph 3.2, 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 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 warning set out in Part III of Schedule II. (b) JOHIM may, at its discretion, by telephone or by letter and upon either JOHIM's or the Client's instigation give advice and receive and act upon instructions given by the Client from time to time, upon the investment policy relating to the Portfolio and in relation to specific investments whether or not comprised in the Portfolio, which advice the client shall not be obliged to follow. JOHIM may refuse to carry out any such instructions which appear to it Page 193 of 258 Pages to be unreasonable or the carrying out of which would, in JOHIM's opinion, adversely affect the Portfolio, JOHIM may, but shall not be obliged to, inform the Client of the basis on which the judgment leading to such advice is founded. (c) If in accordance with paragraph 3.2 JOHIM gives advice or receives and acts upon instructions in relation to specific investments, then JOHIM shall confirm such advice and/or action taken pursuant to such instructions in writing. (d) JOHIM, its representatives and employees may, without the Client's express invitation, at any reasonable time call upon the Client either in person or by telephone whenever it considers it in the Client's interest to do so. The Client hereby forfeits its right under 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 communication. (e) JOHIM shall not be obliged to undertake the management of investments the management of which would in its opinion be onerous to it. (f) The Client's United Kingdom in vestments will be registered in the name of a nominee company of Bank of Scotland of P.O. Box 30, 55 Old Broad Street, London EC2P 2HL or of another clearing bank int he United Kingdom (the "Bank") or, if in bearer form, will be held by the Bank for the account of JOHIM clients. Unless otherwise advised this nominee company will be Bank of Scotland London Nominees Limited. The Client's overseas investments will be registered in the name of one of the Bank's correspondents or agents or, if in bearer form will be held by the Bank, its correspondents or agents for the account of JOHIM clients. Documents of title will be retained in the custody of the Bank, its correspondents or agents, which will hold them to the order of the Bank for the account of JOHIM clients. The nominee company, correspondents and agents referred to above are not companies associated with JOHIM, JOHIM may register the Client's investments in the name of a company, correspondent or agent associated with JOHIM at any time after given prior written notice to the Client. (g) The Client's investments or documents of title or certificates evidencing title to investments or any other property belong to the Client will not be lent by JOHIM to a third party. Money will not be borrowed on the Client's behalf against the security of such investments, documents or property. (h) 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. (i) JOHIM will on the Client's request forward details of all transactions on the Client's behalf to the Client's tax adviser without additional charge. (j) The Client understands that JOHIM's directors or staff may from time to time hold shares of securities including holdings that may be in the Portfolio. Page 194 of 258 Pages (k) 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 the Portfolio. (l) 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 procure that they be maintained for not less than seven years from the date of the relevant transaction. (m) JOHIM may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. (n) JOHIM has the right under this Agreement to effect transactions on the Client's behalf in investments the prices of which may be being stabilized. 59. RESTRICTIONS (a) JOHIM shall not undertake any transactions on the Client's behalf in which JOHIM has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHIM's duty to the Client unless that interest or relationship has previously been disclosed in writing to the Client. (b) JOHIM shall not effect any transactions on behalf of the Client in securities, of which the issue or offer for sale was to JOHIM's knowledge underwritten, managed or arranged by any person or company connected with JOHIM, unless prior disclosure is made to the Client. (c) Save as may be required otherwise in this Agreement, JOHIM may not commit the Client to supplement funds in the Portfolio. (d) JOHIM may commit the Client to any obligation to underwrite any issue or offer for sale of securities with the Client's prior written consent. 60. ACCOUNTS, INTEREST AND DIVIDENDS (a) 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: i. Investment Account Page 195 of 258 Pages The Client's investments will be held in this account. 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. ii. Capital Account All uninvested cash will be held in this account by the Bank. 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. iii Client 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. iv. 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 on 5th April, 30th June, 30th September and 31st December in each year. Money drawn on behalf of the Client from the account shall not exceed the total money held in the account on behalf of the Client at that time. Interest will not be paid on monies held in this account. v. Off-Shore Funds If the Client notifies JOHIM in writing that the Client wishes the investments and cash in the Portfolio to be held outside the United Kingdom, JOHIM may hold such investments and cash in a bank account outside the United Kingdom. (b) 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. Page 196 of 258 Pages (c) 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. 61. FEES, COMMISSIONS AND EXPENSES (a) The Client will pay to JOHIM from the date hereof a management fee in arrears on the lst May and lst November of each year in respect of the period of six months or any lesser period ending on the day prior to such date, and on the Termination Date (as defined in Clause 9.1) in respect of the period ending on that date, all in accordance with the 'Scale Rates and Charges' set out in Schedule III. In addition the Client shall reimburse JOHIM for any expenses or liabilities which it may incur in property carrying out its duties hereunder. (b) The management fee shall accrue on a day-to-day basis, so that, if this Agreement commences or terminates other than on lst May or lst November, the amount of the fee shall be duly apportioned. (c) 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 effected with or through a party from which JOHIM receives such benefits and commissions, disregarding any benefit which might enure directly or indirectly to the Client as a result of such arrangements. (d) 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 on the Client's behalf (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. (e) All sums due and payable by the Client to JOHIM will be transferred as soon as practicable from the money held on the Client's behalf in the Capital Account Page 197 of 258 Pages (and corresponding entire shall be made in the relevant ledger account maintained on the Client's behalf). 62. REVIEWS AND VALUATIONS (a) JOHIM will send to the Client on each Valuation Date (being in each year such half-yearly dates as are agreed between JOHIM and the Client from time to time) a review of the Portfolio incorporating an up-to- date valuation of each investment comprised in the Portfolio and a statement indicating how it was values. (b) On each Valuation Date cash will be valued at its face value and each investment will be valued at its 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" (which figures shall be biding 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 exchange rates supplied by "Exshare" 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, London 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. (c) Each valuation will be made no more than 25 business days before the day on which the review incorporating it is sent to the Client provided that JOHIM accepts no liability for any longer period which may elapse as a result only of any act or omission of any third party. 63. VOTING AND OTHER RIGHTS (a) JOHIM will be entitled at its discretion and without notice to the Client to exercise or to refrain from exercising 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 schedule 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. 64. TERMINATION OF AGREEMENT (a) The Agreement is terminable by the Client without penalty and without prejudice to the completion of transaction already initiated and will continue until terminated by written notice of termination given at any time and in any circumstances by either party to the other. Notice of termination given by either party 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 Page 198 of 258 Pages joint account, notice of termination by JOHIM shall be given to every person named in the joint account. 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. (b) Upon the Termination Date, JOHIM's responsibility for the management of the portfolio will terminate forthwith and JOHIM will not execute any further transactions for the Client (except for transactions initiated, but not completed, upon the Termination Date). 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 procure that all investments and cash balances held on the Client's behalf will, after any outstanding security registrations, 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. (c) No additional payment will be required to be made to JOHIM by the Client in respect of the termination of this Agreement, except that JOHIM may charge the Client an amount equal to: i. the relevant proportion of the management fee, corresponding to that party of the period of six months ending on 30th April or 31st October of each year by reference to which fees are payable, which has expired when this Agreement is terminated; ii. any additional expenses which JOHIM necessarily incurs in terminating this Agreement; and iii any losses necessarily realized in settling or concluding outstanding obligations. (d) 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. 65. RESPONSIBILITY AND INSURANCE (a) JOHIM will indemnify the Client in respect of any loss incurred as a result of gross 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: i. any investment decision taken and acted upon in accordance with the terms of this Agreement; or Page 199 of 258 Pages ii. 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 iii any act or omission on the part of the Bank or its nominee company or any person to which either of them shall have delegated its function or on the part of any other third party whatsoever; or iv. any consequential loss suffered in consequence of any act or omission of JOHIM or any breach by JOHIM of any term of this Agreement. (b) 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, by reason of any failure by the Client to comply with and/or perform any of the terms and conditions, contained in this Agreement. (c) 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. (d) JOHIM has effected insurance to provide protection of the Client against losses arising from any negligence of JOHIM, any dishonest of employees of JOHIM or the dealing by JOHIM in any securities the documents of title to which have been stolen or forged. (e) By Section 54 of the Finance Services Act 1986 The Securities and Investments Board may establish 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. Upon the establishment of such a scheme JOHIM will make available to the Client upon request a statement describing the Client's rights to compensation under the scheme. 66. ACTING AS PRINCIPAL JOHIM may act as principal in any transaction for the Client provided that JOHIM shall secure for the Client best execution of such transaction and provided that, in each instance, the Client's written consent is first obtained. 67. GENERAL (a) The Client warrants that the Client is the beneficial owner of the whole of the Portfolio free from all liens and encumbrances and will so remain during the currency of the Agreement. Page 200 of 258 Pages (b) No part of the Portfolio or of the income therefrom shall be or become a beneficial asset of JOHIM except to the extent that the Capital Account is debited on the Client's behalf with the amount of fees, commissions, costs, expenses or other sums owed to JOHIM. (c) 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. (d) Documents will be sent to the Client at the address given above unless and until otherwise directed in writing. Copies of contract notes and statements may also be sent to other interested parties upon the Client's written request. The Client will immediately notify JOHIM in writing of any changes of address, and JOHIM cannot be held responsible for any consequences which may arise from failure to do so. (e) 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 to an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client to an address within the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter. (f) This Agreement is subject to English law and the parties hereto hereby submit to the jurisdiction of the English courts in respect of it. (g) 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. (h) 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 complain 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 his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter complained of. 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 without prior reference to JOHIM. Page 201 of 258 Pages (i) If the Client is an individual this Agreement shall be binding on his legal personal representatives. (j) This Agreement is personal to the parties hereto and shall not be capable of assignment. (k) No subsequent change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. (l) JOHIM is a member of IMRO and as such is regulated by IMRO in the conduct of Investment Business (as defined in Section 1(2) of the Financial Services Act 1986). (m) 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. (n) The Clause headings in this Agreement are included for each of reference only and shall not affect its interpretation. (o) The Schedules to this Agreement are an integral part of it. (p) This Agreement will come into force on the date and at the time on which it is delivered to JOHIM by the Client having been signed first by JOHIM and then by the Client. For J. O. Hambro Investment Management Limited /s/ [signature appears here] Date 23/2/89 - ---------------------------------------------- --------------------- For the Client* /s/ [signature appears here] Date 8/3/89 - ----------------------------------------------- --------------------- /s/ [signature appears here] - ----------------------------------------------- - ----------------------------------------------- *This Client should sign here as follows: Page 202 of 258 Pages 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 signatory 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 this 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 203 of 258 Pages EX-99.(L) 13 INVSTMNT. MGMNT. AGRMNT. HAMBRO & EARL SPENCER CLIENT AGREEMENT EARL SPENCER (FORMERLY VISCOUNT ALTHORP) Page 204 of 258 Pages Note to the file Viscount Althorp became Earl Spencer in March 1992 J O HAMBRO INVESTMENT - --------------------- THIS INVESTMENT MANAGEMENT AGREEMENT is made the 18th day of November 1991 BETWEEN: (1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") a member of the Investment Management Regulatory Organisation Limited ("IMRO") whose registered office is at 30 Queen Anne's Gate London SW1H9AL; and (2) Viscount Althorp ("the Client") of The Falconry, Althorp, Northampton NOW IT IS HEREBY AGREED as follows: 68. APPOINTMENT The Client hereby appoints JOHIM to act as 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 and to render advice to the Client from time to time in connection with the Portfolio. The Portfolio as at the date of this Agreement is comprised of the investments and cash as set out and valued in Schedule I. 69. AUTHORISED BUSINESS The business which JOHIM is authorised by IMRO to conduct is the giving of investment advice in relation to, and the management of, the portfolios of private and business customers and the arranging of transactions relating to investments of any kind for all types of customers. 70. MANAGEMENT OF INVESTMENTS (a) JOHIM shall, subject to paragraph 3.2, 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 by the Client or by the Client's duly authorised agent (written notice of whose authority shall have been received by JOHIM). The Client's attention is specifically drawn to the warning set out in Part III of Schedule II. Page 205 of 258 Pages (b) JOHIM may, at its discretion, by telephone or by letter and upon either JOHIM's or the Client's instigation give advice and receive and act upon instructions given by the Client from time to time, upon the investment policy relating to the portfolio and in relation to specific investments whether or not comprised in the Portfolio, which advice the Client shall not be obliged to follow. JOHIM may refuse to carry out any such instructions which appear to it to be unreasonable or the carrying out of which would, in JOHIM's opinion, adversely affect the Portfolio. JOHIM may, but shall not be obliged to, inform the Client of the basis on which the judgment leading to such advice is founded. (c) If in accordance with paragraph 3.2 JOHIM gives advice or receives and acts upon instructions in relation to specific investments, then JOHIM shall confirm such advice and/or action taken pursuant to such instructions in writing. (d) JOHIM, its representatives and employees may, without the Client's express invitation, at any reasonable time call upon the Client either in person or by telephone whenever it considers it in the Client's interests to do so. The Client hereby forfeits its right under 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 communication. (e) JOHIM shall not be obliged to undertake the management of investments the management of which would in its opinion be onerous to it. (f) (a) Pursuant to the directions of the Client and save where the Client has notified JOHIM in accordance with paragraph 5.1(e), in those cases where the Client is situated in the United Kingdom registerable investments will be registered in the name of an eligible custodian situated in the United Kingdom and nominated by JOHIM. (b) Pursuant to the directions of the Client, in those cases where the Client is situated overseas 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 an Associate of JOHIM and Client's documents of title may be held by an Associate of JOHIM, 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. (e) JOHIM accepts no liability for any default by any eligible custodian as referred to in this paragraph. Page 206 of 258 Pages (g) 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. JOHIM will not borrow money on the Client's behalf against the security of such investments, documents or property. (h) 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. (i) 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. (j) 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. (k) 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 the Portfolio. (l) 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 procure that they be maintained for not less than seven years from the date of the relevant transaction. (m) JOHIM may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. (n) JOHIM has the right under this Agreement to effect transactions on the Client's behalf in investments the prices 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. 71. RESTRICTIONS AND PERMISSIONS (a) Subject to paragraph 4.2, JOHIM shall not undertake any transactions on the Client's behalf in which JOHIM has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHIM's duty to the Client unless that interest or relationship has previously been disclosed in writing to the Client. Page 207 of 258 Pages (b) The Client's Portfolio may contain securities of which the issue or offer for sale is underwritten, managed or arranged by an Associate of JOHIM during the preceding twelve months. (c) 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. (d) JOHIM may commit the Client to any obligation to underwrite any issue or offer for sale of securities with the Client's prior written consent. 72. ACCOUNTS, INTEREST AND DIVIDENDS (a) 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. i. INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 3.7 and 4.3, 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. ii. CAPITAL ACCOUNT All uninvested cash will be held in this account by the Bank. 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. iii. 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. iv. 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 Page 208 of 258 Pages 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. v. OFF-SHORE FUNDS If the Client notifies JOHIM in writing that the Client wishes the investments and cash in the Portfolio to be registered or held outside the Untied Kingdom, JOHIM will (subject to applicable laws and regulations) hold such investments and cash in a bank account outside the United Kingdom. (b) The Client may at any time instruct JOHIM to realise any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. (c) 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. 73. FEES, COMMISSIONS AND EXPENSES (a) (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 7.2) 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 9.1] 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 within 14 days of dispatch 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 14th day after dispatch 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. (b) 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 below), the amount of the fee shall be duly apportioned. Page 209 of 258 Pages (c) Commissions (as set out in Schedule III) will be payable by the Client on purchases and sales of investments together with all expenses including stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The Client recognises that 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 effected 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. (d) 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 on the Client's behalf (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. (e) All sums due and payable by the Client to JOHIM will be transferred as soon as practicable from the money held on the Client's behalf in the Capital Account (and corresponding entities shall be made in the relevant ledger account maintained on the Client's behalf). 74. REVIEW AND VALUATIONS (a) JOHIM will prepare six monthly statements 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. (b) 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"). (c) JOHIM will send such six monthly reviews to the Client within twenty- five business days of each Valuation Date. (d) 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" (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 Page 210 of 258 Pages other than sterling, the valuation and middle market exchange rates supplied by "Exshare" 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. (e) JOHIM accepts no liability for any period longer than 25 business days between any Valuation Date and receipt by the Client of a review of his Portfolio which has elapsed as a result of any act or omission of any third party. 75. VOTING AND OTHER RIGHTS JOHIM will be entitled at its discretion and without notice to the Client to exercise or to refrain from exercising 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. 76. TERMINATION OF AGREEMENT (a) This Agreement is terminable by the Client without penalty and without prejudice to the completion of transactions already initiated and will continue until terminated by written notice of termination given at any time and in any circumstances by either party to the other. Notice of termination given by either party 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. 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. (b) Upon the Termination Date, JOHIM's responsibility for the management of the Portfolio will terminate forthwith and JOHIM will not execute any further transactions for the Client (except for transactions initiated, but not completed, upon the Termination Date). 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 registrations, stock exchange settlements and other administrative matters have been completed and as soon as reasonably practicable, be transferred to the Client or dealt with in accordance with the Client's instructions, in all cases at the cost of the Client. Page 211 of 258 Pages (c) No additional payment will be required to be made to JOHIM by the Client in respect of the termination of this Agreement, except that JOHIM may charge the Client an amount equal to: i. 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; ii. any additional expenses which JOHIM necessarily incurs in terminating this Agreement; and iii any losses necessarily realised in settling or concluding outstanding obligations. (d) 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. 77. RESPONSIBILITY AND INSURANCE (a) JOHIM will indemnify the Client in respect of any loss incurred as a result of gross negligence, wilful default or fraud by JOHIM or any of its employees. Subject to the above, JOHIM will not be responsible or liable fro any claim, loss, damage, expense or costs arising by reason of any of the following: i. any investment decision taken and acted upon in accordance with the terms of this Agreement; or ii. 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 iii 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 3.6 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 iv. any consequential loss suffered in consequence of any act or omission of JOHIM or any breach by JOHIM of any term of this Agreement. (b) 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, by reason of any failure by the Client to comply with and/or perform any of the terms and conditions contained in this Agreement. Page 212 of 258 Pages (c) 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. (d) JOHIM has effected insurance to provide the protection of the Client against losses arising from any negligence of JOHIM, any dishonesty of employees of JOHIM or the dealing by JOHIM in any securities the documents of title to which have been stolen or forged. (e) By Section 54 of the Financial Services Act 1986 The Securities and Investments Board may establish 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. Upon the establishment of such a scheme JOHIM will make available to the Client upon request a statement describing the Client's rights to compensation under the scheme. 78. ACTING AS PRINCIPAL JOHIM may act as principal in any transaction for the Client provided that JOHIM shall secure for the Client best execution of such transaction and provided that, in each instance, the Client's written consent is first obtained. 79. GENERAL (a) The Client warrants that the Client is the beneficial owner of the whole of the Portfolio free from all liens and encumbrances, except insofar as instructed by the Client to JOHIM, and will so remain during the currency of this Agreement. (b) No part of the Portfolio or of the income therefrom shall be or become a beneficial asset of JOHIM except to the extent that the Capital Account is debited on the Client's behalf with the amount of fees, commissions, costs, expenses or other sums owed to JOHIM. (c) 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. (d) Documents will be sent to the Client at the address given above unless and until otherwise directed in writing. Copies of contract notes and statements may also be sent to other interested parties upon the Client's written request. The Client will immediately notify JOHIM in writing of any changes of address, and JOHIM cannot be held responsible for any consequences which may arise from failure to do so. Page 213 of 258 Pages (e) 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 to an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client to an address within the United Kingdom the notice shall be sufficiently served if served by pre-paid letter. (f) This Agreement is subject to English law and the parties hereto hereby submit to the jurisdiction of the English Courts in respect of it. (g) 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. (h) 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 his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter complained of. The Client has the fight 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 without prior reference to JOHIM. (i) If the Client is an individual this Agreement shall be binding on his legal personal representatives. (j) This Agreement is personal to the parties hereto and shall not be capable of assignment. (k) No subsequent change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. (l) JOHIM is a member of IMRO and as such is regulated by IMRO in the conduct of Investment Business (as defined in Section 1(2) of the Financial Services Act 1986). (m) 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. (n) The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. Page 214 of 258 Pages (o) The Schedules to this Agreement are an integral part of it. (p) This Agreement will come into force on the date and at the time on which it is delivered to JOHIM by the Client having been signed first by JOHIM and then by the Client. Page 215 of 258 Pages SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio as at the date of this Agreement (See attached sheet - where applicable) (Pounds)250,000 Received on 13-9-94 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 F.T. All Share Index or F.T.S.E. 100 Index or any other relevant World Market Index. Part II - Guidelines and Restrictions 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 Margined Transactions, nor will they relate to futures or contracts for differences (or to any right or interest in such investments) save that we may in certain circumstances buy options on your behalf. We may also close out an options contract at any time before its maturity, leave any such contract open until its maturity, exercise any option purchased through any options contract up to its expiry or allow any such option to expire unexercised. 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 4.3 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 5.1 of this Agreement. PART II - Risk Warnings and Risk Disclosure Statement Investment Denominated in Foreign Currencies Page 216 of 258 Pages 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, an investment in exchange rates may have an effect which may be either unfavorable or favorable 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 compromised 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. Options The markets upon which options are traded can be highly volatile and such investments carry a high risk of loss. If we buy an option for the portfolio we may, in our absolute discretion, and without prior reference to you, make contractual or other arrangements or settle or close out outstanding obligations. 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 recommend to you or effect on your behalf transactions in securities the subject of a recent new issue the price of which transactions may have been influenced by bids made or transactions effected for the purpose of stabilising the price of those securities. You should read the explanation below carefully. Its purpose is to enable you to judge whether you wish your funds to be invested at all in such securities or, if so, whether you wish to authorise us generally to effect transactions in such securities on your behalf without further reference to you or whether you wish to be consulted before any particular transaction is effected on your behalf. Stabilisation is a process whereby the market price of a security is pegged or fixed during the period in which a new issue of securities is sold to the public. Stabilisation may take place in the new issue or in other securities related to the new issue in such a way that the price of the other securities may affect the price of the new issue or vice versa. The reason stabilisation is permitted is that when a new issue is brought to market the sudden glut will sometimes force the price lower for a period of time before buyers are found for the securities on offer. As long as he obeys a strict set of rules the "stabilising manager", normally the issuing house chiefly responsible for bringing a new issue to market, is entitled to buy securities in the market that he has previously sold to investors or allotted to institutions who were included in the new issue but who have decided not to continue participating. The effect of this may be to keep the price at a higher level than would otherwise be the case during the period of stabilising. Page 217 of 258 Pages These rules limit the period in which he may stabilise, fix the price at which he may stabilise (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are interested in the new issue or interested in purchasing at the price at which transactions are taking place. Page 218 of 258 Pages SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 1.0% per annum on portfolios of up to (Pounds)500,000 0.6% per annum on the next (Pounds)500,000 0.3% per annum on the next (Pounds)1,500,000 (Equivalent to 0.5% on the first (Pounds)2,500,000) 0.5% per annum on the next (Pounds)2,500,000 0.3% thereafter (Subject to a minimum of (Pounds)1000 per annum) COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST 1.25% on transactions up to (Pounds)10,000 0.5% on transactions up to (Pounds)10,000 0.50% thereafter 0.25% on the next (Pounds)40,000 0.125% thereafter
(Minimum commission (Pounds)30 per contract) All transactions are subject to a handling charge of (Pounds)12.50 per transaction in the case of UK registered securities ((Pounds)20 for non-UK registered securities) INTEREST ON CAPITAL ACCOUNT 1.5% below Bank of Scotland base rate VALUE ADDED TAX There will be charged on the fees shown above at the appropriate rate where applicable Page 219 of 258 Pages FOR J O HAMBRO INVESTMENT MANAGEMENT LIMITED /s/ [signature appears here] Date 13/11/91 - ------------------------------------------- ---------------------- For the Client* /s/ [signature appears here] Date 18/11/91 - ------------------------------------------- ---------------------- - -------------------------- - -------------------------- *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 sing. A Company. The Company's duly authorized signatory 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 this 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 220 of 258 Pages EX-99.(M) 14 INVSTMNT. MGMNT. AGRMNT. HAMBRO & JAMES NORTON CLIENT AGREEMENT JAMES NORTON Page 221 of 258 Pages J O HAMBRO INVESTMENT - --------------------- THIS INVESTMENT MANAGEMENT AGREEMENT is made the 11th day of October 1994 BETWEEN: (1) J O HAMBRO INVESTMENT MANAGEMENT LIMITED ("JOHIM") a member of the Investment Management Regulatory Organisation Limited ("IMRO") whose registered office is at 30 Queen Anne's Gate London SW1H9AL; and (2) James Norton, Esq. ("the Client") of 12 Ovinghon Street, London SwB 2JB NOW IT IS HEREBY AGREED as follows: 80. APPOINTMENT The Client hereby appoints JOHIM to act as 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 and to render advice to the Client from time to time in connection with the Portfolio. The Portfolio as at the date of this Agreement is comprised of the investments and cash as set out and valued in Schedule I. 81. AUTHORISED BUSINESS The business which JOHIM is authorised by IMRO to conduct is the giving of investment advice in relation to, and the management of, the portfolios of private and business customers and the arranging of transactions relating to investments of any kind for all types of customers. 82. MANAGEMENT OF INVESTMENTS (a) JOHIM shall, subject to paragraph 3.2, 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 by the Client or by the Client's duly authorised agent (written notice of whose authority shall have been received by JOHIM). The Client's attention is specifically drawn to the warning set out in Part III of Schedule II. (b) JOHIM may, at its discretion, by telephone or by letter and upon either JOHIM's or the Client's instigation give advice and receive and act upon instructions given by the Client from time to time, upon the investment policy relating to the portfolio and in relation to specific investments whether or not comprised in the Portfolio, Page 222 of 258 Pages which advice the Client shall not be obliged to follow. JOHIM may refuse to carry out any such instructions which appear to it to be unreasonable or the carrying out of which would, in JOHIM's opinion, adversely affect the Portfolio. JOHIM may, but shall not be obliged to, inform the Client of the basis on which the judgment leading to such advice is founded. (c) If in accordance with paragraph 3.2 JOHIM gives advice or receives and acts upon instructions in relation to specific investments, then JOHIM shall confirm such advice and/or action taken pursuant to such instructions in writing. (d) JOHIM, its representatives and employees may, without the Client's express invitation, at any reasonable time call upon the Client either in person or by telephone whenever it considers it in the Client's interests to do so. The Client hereby forfeits its right under 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 communication. (e) JOHIM shall not be obliged to undertake the management of investments the management of which would in its opinion be onerous to it. (f) (a) Pursuant to the directions of the Client and save where the Client has notified JOHIM in accordance with paragraph 5.1(e), in those cases where the Client is situated in the United Kingdom registerable investments will be registered in the name of an eligible custodian situated in the United Kingdom and nominated by JOHIM. (b) Pursuant to the directions of the Client, in those cases where the Client is situated overseas 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 an Associate of JOHIM and Client's documents of title may be held by an Associate of JOHIM, 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. (e) JOHIM accepts no liability for any default by any eligible custodian as referred to in this paragraph. (g) 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 Page 223 of 258 Pages JOHIM. JOHIM will not borrow money on the Client's behalf against the security of such investments, documents or property. (h) 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. (i) 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. (j) 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. (k) 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 the Portfolio. (l) 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 procure that they be maintained for not less than seven years from the date of the relevant transaction. (m) JOHIM may, without prior reference to the Client, enter into a transaction on behalf of more than one client collectively. (n) JOHIM has the right under this Agreement to effect transactions on the Client's behalf in investments the prices 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. 83. RESTRICTIONS AND PERMISSIONS (a) Subject to paragraph 4.2, JOHIM shall not undertake any transactions on the Client's behalf in which JOHIM has directly or indirectly a material interest or have any relationship with another party which may involve a conflict with JOHIM's duty to the Client unless that interest or relationship has previously been disclosed in writing to the Client. (b) The Client's Portfolio may contain securities of which the issue or offer for sale is underwritten, managed or arranged by an Associate of JOHIM during the preceding twelve months. Page 224 of 258 Pages (c) 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. (d) JOHIM may commit the Client to any obligation to underwrite any issue or offer for sale of securities with the Client's prior written consent. 84. ACCOUNTS, INTEREST AND DIVIDENDS (a) 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. i. INVESTMENT ACCOUNT The Client's investments will be held in this account. Subject to paragraphs 3.7 and 4.3, 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. ii. CAPITAL ACCOUNT All uninvested cash will be held in this account by the Bank. 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. iii. 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. iv. 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 Page 225 of 258 Pages 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. v. OFF-SHORE FUNDS If the Client notifies JOHIM in writing that the Client wishes the investments and cash in the Portfolio to be registered or held outside the Untied Kingdom, JOHIM will (subject to applicable laws and regulations) hold such investments and cash in a bank account outside the United Kingdom. (b) The Client may at any time instruct JOHIM to realise any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. (c) 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. 85. FEES, COMMISSIONS AND EXPENSES (a) (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 7.2) 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 9.1] 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 within 14 days of dispatch 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 14th day after dispatch 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. (b) 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 below), the amount of the fee shall be duly apportioned. (c) 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 Page 226 of 258 Pages duty reserve tax and VAT thereon (if applicable). The Client recognises 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 effected 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. (d) 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 on the Client's behalf (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. (e) All sums due and payable by the Client to JOHIM will be transferred as soon as practicable from the money held on the Client's behalf in the Capital Account (and corresponding entities shall be made in the relevant ledger account maintained on the Client's behalf). 86. REVIEW AND VALUATIONS (a) JOHIM will prepare six monthly statements 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. (b) 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"). (c) JOHIM will send such six monthly reviews to the Client within twenty- five business days of each Valuation Date. (d) 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" (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" shall be applied. In the absence of that valuation or exchange rate, the Page 227 of 258 Pages 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. (e) JOHIM accepts no liability for any period longer than 25 business days between any Valuation Date and receipt by the Client of a review of his Portfolio which has elapsed as a result of any act or omission of any third party. 87. VOTING AND OTHER RIGHTS JOHIM will be entitled at its discretion and without notice to the Client to exercise or to refrain from exercising 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. 88. TERMINATION OF AGREEMENT (a) This Agreement is terminable by the Client without penalty and without prejudice to the completion of transactions already initiated and will continue until terminated by written notice of termination given at any time and in any circumstances by either party to the other. Notice of termination given by either party 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. 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. (b) Upon the Termination Date, JOHIM's responsibility for the management of the Portfolio will terminate forthwith and JOHIM will not execute any further transactions for the Client (except for transactions initiated, but not completed, upon the Termination Date). 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 registrations, 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. (c) No additional payment will be required to be made to JOHIM by the Client in respect of the termination of this Agreement, except that JOHIM may charge the Client an amount equal to: Page 228 of 258 Pages i. 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; ii. any additional expenses which JOHIM necessarily incurs in terminating this Agreement; and iii. any losses necessarily realised in settling or concluding outstanding obligations. (d) 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. 89. RESPONSIBILITY AND INSURANCE (a) JOHIM will indemnify the Client in respect of any loss incurred as a result of gross negligence, wilful default or fraud by JOHIM or any of its employees. Subject to the above, JOHIM will not be responsible or liable fro any claim, loss, damage, expense or costs arising by reason of any of the following: i. any investment decision taken and acted upon in accordance with the terms of this Agreement; or ii. 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 iii. 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 3.6 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 iv. any consequential loss suffered in consequence of any act or omission of JOHIM or any breach by JOHIM of any term of this Agreement. (b) 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, by reason of any failure by the Client to comply with and/or perform any of the terms and conditions contained in this Agreement. (c) 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 Page 229 of 258 Pages 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. (d) JOHIM has effected insurance to provide the protection of the Client against losses arising from any negligence of JOHIM, any dishonesty of employees of JOHIM or the dealing by JOHIM in any securities the documents of title to which have been stolen or forged. (e) By Section 54 of the Financial Services Act 1986 The Securities and Investments Board may establish 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. Upon the establishment of such a scheme JOHIM will make available to the Client upon request a statement describing the Client's rights to compensation under the scheme. 90. ACTING AS PRINCIPAL JOHIM may act as principal in any transaction for the Client provided that JOHIM shall secure for the Client best execution of such transaction and provided that, in each instance, the Client's written consent is first obtained. 91. GENERAL (a) The Client warrants that the Client is the beneficial owner of the whole of the Portfolio free from all liens and encumbrances, except insofar as instructed by the Client to JOHIM, and will so remain during the currency of this Agreement. (b) No part of the Portfolio or of the income therefrom shall be or become a beneficial asset of JOHIM except to the extent that the Capital Account is debited on the Client's behalf with the amount of fees, commissions, costs, expenses or other sums owed to JOHIM. (c) 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. (d) Documents will be sent to the Client at the address given above unless and until otherwise directed in writing. Copies of contract notes and statements may also be sent to other interested parties upon the Client's written request. The Client will immediately notify JOHIM in writing of any changes of address, and JOHIM cannot be held responsible for any consequences which may arise from failure to do so. (e) 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 Page 230 of 258 Pages of notices. In the case of notice served by the Client from outside the United Kingdom and of notice served upon the Client to an address outside the United Kingdom, the notice shall be sufficiently served if served by pre-paid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client to an address within the United Kingdom the notice shall be sufficiently served if served by pre-paid letter. (f) This Agreement is subject to English law and the parties hereto hereby submit to the jurisdiction of the English Courts in respect of it. (g) 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. (h) 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 his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter complained of. The Client has the fight 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 without prior reference to JOHIM. (i) If the Client is an individual this Agreement shall be binding on his legal personal representatives. (j) This Agreement is personal to the parties hereto and shall not be capable of assignment. (k) No subsequent change, alteration or modification to this Agreement or the Schedules hereto shall be made unless in writing and signed by the parties hereto. (l) JOHIM is a member of IMRO and as such is regulated by IMRO in the conduct of Investment Business (as defined in Section 1(2) of the Financial Services Act 1986). (m) 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. (n) The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. (o) The Schedules to this Agreement are an integral part of it. Page 231 of 258 Pages (p) This Agreement will come into force on the date and at the time on which it is delivered to JOHIM by the Client having been signed first by JOHIM and then by the Client. Page 232 of 258 Pages SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio as at the date of this Agreement (See attached sheet - where applicable) (Pounds)250,000 Received on 13-9-94 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 F.T. All Share Index or F.T.S.E. 100 Index or any other relevant World Market Index. Part II - Guidelines and Restrictions 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 Margined Transactions, nor will they relate to futures or contracts for differences (or to any right or interest in such investments) save that we may in certain circumstances buy options on your behalf. We may also close out an options contract at any time before its maturity, leave any such contract open until its maturity, exercise any option purchased through any options contract up to its expiry or allow any such option to expire unexercised. 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 4.3 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 5.1 of this Agreement. PART II - Risk Warnings and Risk Disclosure Statement Investment Denominated in Foreign Currencies Page 233 of 258 Pages 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, an investment in exchange rates may have an effect which may be either unfavorable or favorable 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 compromised 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. Options The markets upon which options are traded can be highly volatile and such investments carry a high risk of loss. If we buy an option for the portfolio we may, in our absolute discretion, and without prior reference to you, make contractual or other arrangements or settle or close out outstanding obligations. 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 recommend to you or effect on your behalf transactions in securities the subject of a recent new issue the price of which transactions may have been influenced by bids made or transactions effected for the purpose of stabilising the price of those securities. You should read the explanation below carefully. Its purpose is to enable you to judge whether you wish your funds to be invested at all in such securities or, if so, whether you wish to authorise us generally to effect transactions in such securities on your behalf without further reference to you or whether you wish to be consulted before any particular transaction is effected on your behalf. Stabilisation is a process whereby the market price of a security is pegged or fixed during the period in which a new issue of securities is sold to the public. Stabilisation may take place in the new issue or in other securities related to the new issue in such a way that the price of the other securities may affect the price of the new issue or vice versa. The reason stabilisation is permitted is that when a new issue is brought to market the sudden glut will sometimes force the price lower for a period of time before buyers are found for the securities on offer. As long as he obeys a strict set of rules the "stabilising manager", normally the issuing house chiefly responsible for bringing a new issue to market, is entitled to buy securities in the market that he has previously sold to investors or allotted to institutions who were included in the new issue but who have decided not to continue participating. The effect of this may be to keep the price at a higher level than would otherwise be the case during the period of stabilising. Page 234 of 258 Pages These rules limit the period in which he may stabilise, fix the price at which he may stabilise (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are interested in the new issue or interested in purchasing at the price at which transactions are taking place. Page 235 of 258 Pages SCHEDULE III Scale Rates and Charges MANAGEMENT FEES To be levied six monthly DISCRETIONARY PORTFOLIO SERVICE 1.0% per annum on portfolios of up to (Pounds)500,000 0.6% per annum on the next (Pounds)500,000 0.3% per annum on the next (Pounds)1,500,000 (Equivalent to 0.5% on the first (Pounds)2,500,000) 0.5% per annum on the next (Pounds)2,500,000 0.3% thereafter (Subject to a minimum of (Pounds)1000 per annum) COMMISSION RATES
EQUITIES GILTS/FIXED INTEREST 1.25% on transactions up to (Pounds)10,000 0.5% on transactions up to (Pounds)10,000 0.50% thereafter 0.25% on the next (Pounds)40,000 0.125% thereafter
(Minimum commission (Pounds)30 per contract) All transactions are subject to a handling charge of (Pounds)12.50 per transaction in the case of UK registered securities ((Pounds)20 for non-UK registered securities) INTEREST ON CAPITAL ACCOUNT 1.5% below Bank of Scotland base rate VALUE ADDED TAX There will be charged on the fees shown above at the appropriate rate where applicable Page 236 of 258 Pages FOR J O HAMBRO INVESTMENT MANAGEMENT LIMITED /s/ [signature appears here] Date 11/10/94 - ---------------------------------------- -------------------- For the Client* /s/ James Norton Date 11/10/94 - ---------------------------------------- -------------------- - ----------------------------- - ----------------------------- *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 signatory 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 this 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 237 of 258 Pages EX-99.(N) 15 INVSTMNT. MGMNT. AGRMNT. HAMBRO. & MRS. MORRISON CLIENT AGREEMENT MRS. S. E. Z. MORRISON Page 238 of 258 Pages THIS INVESTMENT MANAGEMENT AGREEMENT is made the 26th day of February, 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) Mrs. S. E. Z. Morrison --------------------------------------------------------------------------- (portfolio name) (hereafter known as the "Client") of ---------------------- 34 Norland Square --------------------------------------------------------------------------- London SW1L 4PU (address) ---------------------------------------------------------- NOW IT IS HEREBY AGREED as follows: APPOINTMENT AND STATUS OF CLIENT 92. 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 1. MANAGEMENT OF INVESTMENTS 93. 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 our in Part I of Schedule II. Such policy shall be subject to the guidelines and restrictions set out in Part II of Schedule II and to any guidelines, restrictions and instructions specified in writing from time to time by the Client or by the Client's duly authorised agent (written notice of whose authority shall have been received by JOHIM). The Client's attention is specifically drawn to the warnings set out in Part III of Schedule II. 94. 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 95. 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 Page 239 of 258 Pages 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. 96. 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. 97. 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. 98. 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. 99. JOHIM may act as principal in any transaction for the Client provided that JOHIM shall secure for the Client best execution of such transaction. 100. 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. 101. 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 102. 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 or 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. 103. 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. 104. 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 or companies whose shares are held in the Portfolio. 105. 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 Page 240 of 258 Pages 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 106. (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, INTERESTS AND DIVIDENDS 107. 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 Page 241 of 258 Pages 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 our 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. 108. The Client may at any time instruct JOHIM to realise any or all of the investments in the Portfolio and may withdraw any sum standing to the credit of the Capital Account and held on the Client's behalf. 109. 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 ledge 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 110. 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 Page 242 of 258 Pages unenforceable any investment agreement entered into in the course of or in consequence of such a call. ADMINISTRATION 111. 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. 112. JOHIM will be on the Client's request forward details of all transactions on the Client's behalf to the Client's tax advisor without additional charge. 113. 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. 114. 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 changes of address, and that JOHIM will not be responsible for any consequences which may arise from failure to do so. REVIEWS AND VALUATIONS 115. 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 six monthly reviews to the Client within twenty-five business days of each Valuation Date. 116. 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. Page 243 of 258 Pages 117. 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 a result of any act or omission of any third party. VOTING AND OTHER RIGHTS 118. 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. FILES, COMMISSIONS AND EXPENSES 119. (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 14th day after despatch of such notice. (d) In addition the Client shall reimburse JOHIM for any expenses or liabilities which it may incur in properly carrying out its duties hereunder. 120. 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. 121. Commissions (as set out in Schedule III) will be payable by the Client on purchases and sales of investments together with all expenses including stamp duties, stamp duty reserve tax and VAT thereon (if applicable). The Client recognises that 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 dealing on the Client's behalf; all such benefits and receipts shall supplement Page 244 of 258 Pages 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 effected 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. 122. 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 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 123. 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 156 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 or JOHIM or any breach of JOHIM of any term of this Agreement. 124. 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. 125. 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. Page 245 of 258 Pages 126. 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. 127. 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 128. 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. 129. 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 130. 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. 131. 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 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. 132. 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: Page 246 of 258 Pages (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. 133. 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. 134. 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 135. 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. 136. 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 137. 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. 138. The Clause headings in this Agreement are included for ease of reference only and shall not affect its interpretation. 139. The Schedules to this Agreement are an integral part of it. 140. If the Client is an individual this Agreement shall be binding on his legal personal representatives. Page 247 of 258 Pages 141. This Agreement is personal to the parties hereto and shall not be capable of assignment. 142. 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. 143. 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 serviced upon the Client to an address outside the United Kingdom, the notice shall be sufficiently served if served by prepaid letter, cable or telex. In the case of notice served by the Client from within the United Kingdom and of notice served upon the Client to an address within the United Kingdom the notice shall be sufficiently served if served by prepaid letter. 144. 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 his investigation he shall make a written report to the Client and take any action he deems necessary to rectify the matter which is the subject of the complaint. The Client has the right to refer any complaint to IMRO if the Client is not satisfied with the action taken by the Chief Executive or Senior Investment Manager, and in any event has the right to make the complaint direct to IMRO or the Investment Ombudsman without prior reference to JOHIM. 145. 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. 146. This Agreement is subject to English law and the parties hereto hereby submit to the jurisdiction of the English Courts in respect of it. SCHEDULE I THE PORTFOLIO Valuation and composition of Portfolio (see attached letter/opening valuation - where applicable) SCHEDULE II Page 248 of 258 Pages 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 advised 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 realizable. You should be aware that there can be no certainty that market makers or brokers will be Page 249 of 258 Pages 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 stabilizing 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 "stabilizing 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 stabilizing. The rules limit the period in which he may stabilize, fix the price at which he may stabilise (in the case of shares and warrants but not bonds), and require him to disclose that he may be (but not that he is) stabilising. The fact that a new issue or a related security is being stabilised does not in itself mean that investors are not interested in the issue, but neither should the existence of transactions in an issue where stabilising may take place be relied upon as an indication that investors are Page 250 of 258 Pages interested in the new issue or interested in purchasing at the price at which transactions are taking place". FOR J O HAMBRO INVESTMENT MANAGEMENT LIMITED /s/ [signature appears here] Date: 26/2/96 - ------------------------------------------------ ------------------- FOR THE CLIENT* /s/ Sandra Morrison Date: 26/2/96 - ------------------------------------------------ ------------------- - ----------------------------------- - ----------------------------------- *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 signatory 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 251 of 258 Pages [THIS PAGE IS INTENTIONALLY LEFT BLANK] Page 252 of 258 Pages EX-24 16 POWER OF ATTORNEY CHRIS MILLS POWER OF ATTORNEY Page 253 of 258 Pages POWER OF ATTORNEY ----------------- This general Power of Attorney is made this ninth day of July 1997 by Christopher Harwood Bernard Mills. I hereby appoint Claudia Margaret Cecil Perkins of 10 Park Place, London SW1A 1LP to be my attorney whereby she is empowered to sign on my behalf all documents required for the proper conduct of the businesses of J O Hambro & Partners Limited, North Atlantic Smaller Companies Investment Trust Plc and its subsidiaries, American Opportunity Trust PLC and its subsidiaries, Growth Financial Services Limited and Eveswise Ltd Retirement & Death Scheme. This Power shall include but not be limited to authorising all statutory, regulatory and other legal submissions which may be required to be made by any of the above companies. IN WITNESS WHEREOF I have hereunto set my hand and seal the day and year first above written: Signed, Sealed and Delivered ) By the above named ) /s/ Christopher Harwood Bernard Mills CHRISTOPHER HARWOOD BERNARD MILLS ) in the presence of: ) Maureen O'Hara 10 Park Place London SW1A 1LP Page 254 of 258 Pages EX-99.(P) 17 JOINT FILING AGREEMENT APRIL 13, 1998 JOINT FILING AGREEMENT Page 255 of 258 Pages JOINT FILING AGREEMENT The undersigned hereby agree that the Statement on Schedule 13D dated April 13, 1998 with respect to the shares of common stock, Class A $0.01 par value, of Maxicare Health Plans, Inc. and any further amendments thereto executed by each or any of us shall be filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Date: April 13, 1998 AMERICAN OPPORTUNITY TRUST PLC By: J O Hambro Capital Management Limited, Its investment advisor By: /s/ Claudia Perkins ----------------------------------- Name: Claudia Perkins Title: Director Date: April 13, 1998 NORTH ATLANTIC SMALLER COMPANIES INVESTMENT TRUST PLC By: J O Hambro Capital Management Limited, Its investment advisor By: /s/ Claudia Perkins ----------------------------------- Name: Claudia Perkins Title: Director Date: April 13, 1998 J O HAMBRO CAPITAL MANAGEMENT LIMITED By: /s/ Claudia Perkins ----------------------------------- Name: Claudia Perkins Title: Director Page 256 of 258 Pages Date: April 13, 1998 J O HAMBRO & COMPANY LIMITED By: /s/ J. D. Hambro ----------------------------------- Name: J. D. Hambro Title: Director Date: April 13, 1998 J O HAMBRO ASSET MANAGEMENT LIMITED By: /s/ J. D. Hambro ----------------------------------- Name: J. D. Hambro Title: Director Date: April 13, 1998 J O HAMBRO INVESTMENT MANAGEMENT LIMITED By: /s/ A. J. Steel ----------------------------------- Name: A. J. Steel Title: Director Page 257 of 258 Pages Date: April 13, 1998 GROWTH FINANCIAL SERVICES LIMITED By: /s/ Claudia Perkins ----------------------------------- Name: C. H. B. Mills Title: Director CLAUDIA PERKINS PURSUANT TO A POWER OF ATTORNEY DATED 9 JULY 1997 Date: April 13, 1998 CHRISTOPHER MILLS /s/ Claudia Perkins ------------------------------------------- CLAUDIA PERKINS PURSUANT TO A POWER OF ATTORNEY DATED 9 JULY 1997 Page 258 of 258 Pages -----END PRIVACY-ENHANCED MESSAGE-----