CLIENT AGREEMENT
X. X. XXXXXX WILL TRUST
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X.X XXXXXX INVESTMENT MANAGEMENT
--------------------------------
THIS INVESTMENT MANAGEMENT AGREEMENT is made BETWEEN,
(1) X X XXXXXX INVESTMENT MANAGEMENT LIMITED ("JOHIM") a member of the
Investment Management Regulatory Organization Limited ("IMRO") whose
registered office is at 00 Xxxxx Xxxx'x Xxxx Xxxxxx XX0X 0XX; and
(2) X.X. Xxxxxx Will Trust (the "Client") of c/x Xxxxxx and Xxxxx, Xxxxxx
Xxxxx, 0-00 Xxxxxxxx Xxxxxx, Xxxxxx XXXX 0XX
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
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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 Xxx 0000 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 X.X. Xxx 00, 00 Xxx Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX 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.
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(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
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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.
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(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
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(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
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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
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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 Xxx 0000 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.
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(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.
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(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 X. X. Xxxxxx Investment Management Limited
/s/ [signature appears here] Date 23/2/89
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For the Client*
/s/ [signature appears here] Date 8/3/89
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/s/ [signature appears here]
-----------------------------------------------
-----------------------------------------------
*This Client should sign here as follows:
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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.
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