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EXHIBIT 6(b)
CONFORMED COPY
DATED 27th October 0000
XXX XXXXXX XXXXX XXXXXX EQUITY TRUST (1)
OLD MUTUAL SOUTH AFRICA GROWTH
ASSETS FUND LIMITED (2)
SOUTH AFRICAN MUTUAL LIFE (3)
ASSURANCE SOCIETY
OLD MUTUAL ASSET MANAGERS (BERMUDA) LIMITED (4)
OLD MUTUAL FUND HOLDINGS (BERMUDA) LIMITED (5)
and
SWISS BANK CORPORATION (6)
---------------------------------
AGREEMENT
relating to the Placing of up to 20,000,000 shares
of US$ 1 each in
Old Mutual South Africa Growth Assets Fund Limited
---------------------------------
Xxxxxx Xxxx
London
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CONTENTS
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CLAUSE HEADING PAGE
1 Definitions and interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3 Delivery of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4 Placing and subscription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5 Application to the Irish Stock Exchange . . . . . . . . . . . . . . . . . . . . . . 11
6 Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7 Closing, allotment and settlement . . . . . . . . . . . . . . . . . . . . . . . . . 13
8 Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9 Remuneration and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 Representations, warranties and undertakings . . . . . . . . . . . . . . . . . . . 16
11 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
12 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13 Effect of termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
14 Continuing obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
16 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
17 Protection of trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
18 Governing law and jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SCHEDULE
1 Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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DOCUMENTS IN THE AGREED FORM
"A" Formal Notice
"B" Placement Memorandum
"C" Placing Letter
"D" Portfolio Transfer and Subscription Agreement
"E" US Placement Agreement
"F" US Private Placement Memorandum
"G" Verification Notes
"H" Legal opinion of Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx
"I" Legal opinion of Xxxxxxx, Xxxx & Xxxxx
"J" Legal opinion of Xxxxxxx, Xxxx and Xxxxxxx
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THIS AGREEMENT is made on 27TH October 1995 BETWEEN:
(1) OLD MUTUAL SOUTH AFRICA EQUITY TRUST, a Massachusetts trust
organised as an open-ended investment company of Xxxxxxxx Xxxxx, 00
Xxx-xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx (xxx "MASTER TRUST");
(2) OLD MUTUAL SOUTH AFRICA GROWTH ASSETS FUND LIMITED, an open-ended
investment company incorporated under the laws of Bermuda of
Xxxxxxxx Xxxxx, 00 Xxx-xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx (xxx "SAGA
FUND");
(3) SOUTH AFRICAN MUTUAL LIFE ASSURANCE SOCIETY, a mutual assurance
society incorporated under the laws of South Africa of Mutualpark,
Xxx Xxxxx Xxxxx, Xxxxxxxxx 0000, XX Xxx 00, Xxxx Xxxx, Xxxxx Xxxxxx
("OLD MUTUAL);
(4) OLD MUTUAL ASSET MANAGERS (BERMUDA) LIMITED, a company incorporated
under the laws of Bermuda of Richmond House, 12 Par-la-Ville Road,
Xxxxxxxx, Bermuda ("OMAM");
(5) OLD MUTUAL FUND HOLDINGS (BERMUDA) LIMITED, a company incorporated
under the laws of Bermuda of Richmond House, 12 Par- la-Ville Road,
Xxxxxxxx, Bermuda ("OLD MUTUAL BERMUDA"); and
(6) SWISS BANK CORPORATION, a public company limited by shares
incorporated in Switzerland and registered in England and Wales
(under branch registration no. BR000326), whose principal place of
business in England is at 0 Xxxx Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX
acting through its division SBC Warburg ("SBC WARBURG").
WHEREAS:
(A) OMAM and Old Mutual Bermuda are respectively direct and indirect
wholly owned subsidiaries of Old Mutual;
(B) OMAM will be the investment adviser to the Master Trust and to Old
Mutual Global Assets Fund Limited (the "GLOBAL FUND"), an
open-ended investment company incorporated in Bermuda, which will
be a wholly owned subsidiary of Old Mutual Bermuda;
(C) the Master Trust, which is duly organised as a Massachusetts trust
and is to be registered as an open-end management company under the
Investment Company Act, has agreed to acquire a portfolio of South
African investments from Old Mutual in exchange for Old Mutual
Bermuda acquiring substantially all of the beneficial interest in
the Master Trust;
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(D) the SAGA Fund is duly incorporated in Bermuda with limited
liability under the Companies Xxx 0000 with the policy of investing
exclusively in the Master Trust;
(E) Old Mutual Equity Growth Assets South Africa Fund (the "OMEGA
FUND") is duly organised as a Massachusetts business trust and is
to be registered as an open-end management company under the
Investment Company Act with the policy of investing exclusively in
the Master Trust;
(F) the SAGA Fund was incorporated on 7th September 1995 with an
authorised share capital of US$12,000 divided into 12,000 manager's
shares of US$1 each, all of which were allotted and issued nil paid
to Old Mutual Bermuda and, at the date hereof, the authorised share
capital of the SAGA Fund is US$40,000,000 divided into 39,988,000
shares of US$1 each and 12,000 manager's shares all of which
manager's shares are beneficially owned by Old Mutual Bermuda;
(G) by resolution of the board of directors of the SAGA Fund passed on
23rd October 1995, it was resolved to offer up to 20,000,000 Shares
at a price of US$50 per Share payable in full on subscription
pursuant to the Initial Offering on and subject to the terms and
conditions set out herein and in the Placement Memorandum;
(H) the SAGA Fund is to make application, through NCB Stockbrokers
Limited, to the Irish Stock Exchange for all the Shares referred to
in recitals (F) and (G) to be admitted to the Official List;
(I) XX Xxxxxxx & Co., Inc. (the "US PLACING AGENT") has pursuant to a
Placing Agreement bearing even date herewith made with the OMEGA
Fund and others agreed (as agent of the OMEGA Fund) to use its best
efforts to solicit offers to purchase shares of the OMEGA Fund in
the United States of America; and
(J) on the terms and subject to the conditions set out herein, in
reliance on the various representations, warranties, undertakings
and indemnities contained herein SBC Warburg has agreed (as agent
for the SAGA Fund) to use its reasonable endeavours to procure
placees for Shares at US$50 per Share on and subject to the terms
set out in the Placement Memorandum but so that SBC Warburg is not
to be under any obligation whatsoever itself to subscribe for or to
underwrite any Shares in the Placing.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (including its recitals), unless the context
otherwise requires or otherwise defined herein, terms defined in
the Placement Memorandum shall
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have the same meaning in this Agreement and the following words and
expressions shall have the respective meanings set opposite them:
"ACT" means the Companies Xxx 0000 of Bermuda (as amended)
"ADMISSION" means the admission of the Issued Capital to the
Official List
"AFFILIATE" means, in relation to SBC Warburg, any holding company
of such person and any subsidiary of any such holding company and
any body corporate in which any of those entities holds a
qualifying capital interest (within the meaning of paragraph 30 of
schedule 1 to the FSA) and the directors, officers and employees of
such person and of each of such entities
"APPLICATION" means the application made by the SAGA Fund to the
Irish Stock Exchange for up to 39,988,000 Shares to be admitted to
the Official List
"BUSINESS DAY" means any day which is not a day on which banking
institutions in London or New York are generally obligated or
authorised by law or executive order to close
"BROKERS" means NCB Stockbrokers Limited of Ferry House, 00/00
Xxxxx Xxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx
"COMPLETION DAY" means the day on which Admission becomes effective
in accordance with the Listing Rules
"CONDITIONS" means the conditions set out in clause 2.1
"DIRECTORS" means the persons named as directors of the SAGA Fund
under the heading "MANAGEMENT - Directors and Trustees" in the
Placement Memorandum
"ENGAGEMENT LETTER" means two letters dated 1st September 1995 from
SBC Warburg to Old Mutual relating to, inter alia, the Placing
"FSA" means the Financial Services Xxx 0000
"FORMAL NOTICE" means the document in the agreed form marked "A"
"FUND" means the SAGA Fund and the Master Trust except as otherwise
indicated
"HOLDING COMPANY" has the meaning ascribed thereto by sections 736
and 736A. of the Companies Xxx 0000
"INITIAL CLOSING DATE" means 10th November 1995 or such earlier or
later business day (not being later than 10th December 1995) as SBC
Warburg may,
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in agreement with the SAGA Fund and Old Mutual determine on which
the closing of the Initial Offering is to occur
"INITIAL OFFERING" means the proposed placing with institutions and
other investors outside the United States of up to 20,000,000
Shares at the Placing Price and otherwise on the terms and
conditions set out in this Agreement and the Issue Documents
"INITIAL OFFERING TERMINATION DATE" means 7th November 1995 or such
earlier or later business day (not being later than 10th December
1995) as SBC Warburg may in agreement with the SAGA Fund and Old
Mutual determine by which Placing commitments are to be received
"INVESTMENT COMPANY ACT" means the United States Investment Company
Act of 1940 (as amended)
"IRISH COMPANIES ACT" means the Companies Xxx 0000 of the Republic
of Ireland
"IRISH STOCK EXCHANGE" means the Irish Unit of The International
Stock Exchange of the United Kingdom and the Republic of Ireland
Limited or any successor thereto for the time being
"ISSUE DOCUMENTS" means the Placement Memorandum and the relevant
Placing Letter
"ISSUED CAPITAL" means the Shares which fall to be issued pursuant
to the Initial Offering
"LIBOR" means the offered rate in the London Interbank Market
quoted at or about 11.00 a.m. on the Initial Closing Date for
overnight US dollar deposits on the page "LIBOR" of the Xxxxxx
Monitor Money Rates Services or, if more than one rate is offered,
the arithmetic mean thereof
"LISTING RULES" means the listing rules of the Irish Stock Exchange
"MAJORITY OF OUTSTANDING VOTING SECURITIES" has the meaning
assigned thereto in the Investment Company Act
"MATERIAL CONTRACTS" means the agreements referred to in paragraph
7 under "Additional Information" in the Placement Memorandum
"OFFICIAL LIST" means the Official List of the Irish Stock Exchange
"PLACEES" means persons who agree (on the terms and subject to the
conditions set out or referred to in the Placing Letter) to acquire
Shares pursuant to the Initial Offering and "PLACEE" shall be
construed accordingly
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"PLACING" means the Initial Offering
"PLACEMENT MEMORANDUM" means the document proposed to be issued in
connection with the Application and the Initial Offering as
approved by the Irish Stock Exchange, which will comprise listing
particulars with regard to the SAGA Fund, a final proof of which is
in the agreed form marked "B"
"PLACING LETTER" means the letter in the agreed form marked "C"
and, where the context admits, any equivalent document in
substantially the same form used by any placing agent appointed
pursuant to clause 4.2
"PLACING PRICE" means the sum of US$50 per Share
"PORTFOLIO" means the portfolio of South African securities to be
transferred from Old Mutual to the Master Trust as stated in the
Placement Memorandum
"PORTFOLIO TRANSFER AND SUBSCRIPTION AGREEMENT" means an agreement
in the agreed form marked "D" dated 23rd October 1995 made between
Old Mutual (1), Old Mutual Bermuda (2), the Master Trust (3), the
OMEGA Fund (4), the SAGA Fund (5), the Global Fund (6) and OMAM (7)
"QUALIFYING SHARES" means Shares that are (1) sold in the Initial
Offering or, if they are sold to "Category C clients" as referred
to in the Engagement Letter, in the Second Offering and (2)
continuously outstanding during the period ending on the third
anniversary of the Initial Closing Date
"REGULATION S" means regulation S under the Securities Act
"SECOND OFFERING" means the offer for up to 6 months after the
Initial Closing Date of any remaining Shares at a price equal to
their net asset value plus a sales charge
"SECURITIES ACT" means the United States Securities Act of 1933 (as
amended)
"SHARES" means shares of US$1.00 each in the capital of the SAGA
Fund to be allotted and issued for the purposes of the Placing
"STATUTES" means the Act, the Irish Companies Act, the FSA and any
regulations made thereunder
"SUBSIDIARY" has the meaning ascribed thereto by sections 736 and
736A of the Companies Xxx 0000
"US DOLLARS", "US$" and "CENT" means the currency of the United
States of America
"US PERSON" means a person or entity defined as such in Rule 902(o)
under the Securities Act
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"US PLACEMENT AGREEMENT" means the final form of the placement
agreement between the OMEGA Fund and others and the US Placing
Agent relating to the placing of shares in the OMEGA Fund in the
United States which is in the agreed form marked "E"
"US PRIVATE PLACEMENT MEMORANDUM" means the document issued in
connection with the placing of shares in the OMEGA Fund which is in
the agreed form marked "F"
"VAT" means United Kingdom value added tax
"VATA" means the Value Added Tax Xxx 0000
"VERIFICATION NOTES" means the questions and answers thereto
contained in the three documents copies of which are in the agreed
form all marked "G" entitled "Verification Notes" and signed by or
initialled on behalf of each of the persons named therein as being
responsible for such answers, together with the supporting
documentation in relation thereto
"WARRANTIES" means the representations, warranties and undertakings
made and given pursuant to clause 10 and schedule 1
"WARRANTORS" means the Master Trust, the SAGA Fund, Old Mutual,
OMAM and Old Mutual Bermuda.
1.2 Any reference to a document being "in the agreed form" is to such
document in the form agreed between Old Mutual, the SAGA Fund and
SBC Warburg prior to the exchange of this Agreement and signed by
each of them or on their behalf for the purpose of identification,
with such amendments thereto (if any) as may be agreed between Old
Mutual, the SAGA Fund and SBC Warburg.
1.3 Words denoting the singular include the plural and vice versa.
Words importing any gender shall include every gender and words
denoting persons shall include corporations, unincorporated
associations, partnerships, trusts, joint ventures and other legal
entities.
1.4 The index and headings in this Agreement have been inserted for
convenience only and shall not affect the interpretation of this
Agreement. References to recitals, clauses and schedules are to the
recitals and clauses of and the schedules to this Agreement. The
contents of the schedules shall have as full effect as if the same
were incorporated herein and terms defined herein have the same
meaning in any schedule.
1.5 Except where otherwise stated, references in this Agreement to any
statute or statutory provision include any replacement,
re-enactment, modification or extension thereof (whether before, on
or after the date hereof), any statutory provision of which the
provision referred to is a re-enactment (whether with
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or without modification), and any orders, regulations, instruments
or other subordinate legislation made under the statutory provision
referred to.
1.6 Except where otherwise stated, reference in this Agreement to any
statute or statutory provision is to the relevant statute or
provision in Great Britain.
1.7 Reference in any form to the knowledge, information, belief or
awareness of any person shall be deemed to include any knowledge,
information, belief or awareness which such person would have had
if he had made all such enquiries as were reasonable to be made by
such person in the context of the Placing.
1.8 Unless otherwise expressly provided, all references in this
Agreement to time are to the time in London.
2 CONDITIONS
2.1 The obligations hereunder of SBC Warburg as placing agent of the
SAGA Fund for the purpose of placing Shares (except to the extent
that prior performance or observance of such obligations is
required hereunder) are conditional on:
(a) the document in the agreed form marked "B" (with such
amendments thereto, if any, as may be agreed between Old
Mutual, the SAGA Fund and SBC Warburg) having been approved
by the Committee of the Irish Stock Exchange as listing
particulars for the purposes of the Listing Rules not later
than 12 noon on 27th October 1995 and in any event prior to
its delivery to the Registrar of Companies in Dublin;
(b) the signing by the Chairman of the Directors and two other
Directors (or by their respective agents or attorneys duly
authorised in writing) of two copies of the Placement
Memorandum and the delivery of such signed copies, together
with, if applicable, such authorisation, to the Brokers not
later than 12 noon on 27th October 1995;
(c) one copy of the Placement Memorandum having been delivered
to the Registrar of Companies in Dublin for registration as
required by Section 364 of the Irish Companies Act not
later than 3.00 p.m. on 27th October 1995;
(d) the Formal Notice having been submitted to, and its
contents having been approved by, the Irish Stock Exchange
not later than 4.00 p.m. on 10th November 1995;
(e) a minimum of 24,000 Shares falling to be allotted pursuant
to the Initial Offering;
(f) Admission becoming effective in accordance with the Listing
Rules not later than 9.30 a.m. on 13th November 1995;
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(g) on or before the Initial Closing Date there having been
delivered to SBC Warburg legal opinions, in form and
substance satisfactory to SBC Warburg, dated as at the
Initial Closing Date, from (i) Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, legal advisers in South Africa to SBC Warburg, the
Master Trust, the OMEGA Fund and the SAGA Fund to the
effect set forth in the agreed form draft document marked
"H"(ii) Xxxxxxx, Xxxx & Xxxxx, legal advisers in the United
States of America to the OMEGA Fund, the Master Trust and
the SAGA Fund to the effect set forth in the agreed form
draft document marked "I" and (iii) Xxxxxxx, Xxxx and
Xxxxxxx, legal advisers in Bermuda to the Master Trust, the
OMEGA Fund and the SAGA Fund to the effect set forth in the
agreed form draft document marked "J";
(h) none of the Warranties being or having become untrue,
inaccurate or misleading in any material respect at any
time before this Agreement becomes unconditional in all
other respects and no fact or circumstance having arisen
and nothing having been done or omitted to be done which
would render any of the Warranties untrue or inaccurate in
any material respect if it was repeated as at Admission
save to the extent that such breach has been waived by SBC
Warburg.
2.2 SBC Warburg shall, after consultation with Old Mutual, have power
in its absolute discretion, and on such terms as it shall in its
absolute discretion think fit, to waive fulfilment of all or any of
the Conditions (other than those set out in clauses 2.1(e) and (f))
and/or to extend the time provided for fulfilment of any of the
Conditions in respect of all or any part of the performance thereof
but so that such extension shall not go beyond 9.30 a.m. on 10th
December 1995.
2.3 If any of the Conditions is not fulfilled (or waived by SBC Warburg
in exercise of the power provided in clause 2.2 or varied by
agreement between the parties hereto) or shall have become
incapable of being fulfilled and is not so waived by the respective
time and/or date therein specified (or any later time and/or date
to which the time provided for fulfilment of such Condition is
extended in accordance with clause 2.2), the provisions of clause
13 shall apply.
2.4 Each party agrees to use all reasonable endeavours to procure that
each of the Conditions is fulfilled by the respective time and/or
date therein specified.
3 DELIVERY OF DOCUMENTS
3.1 As soon as practicable after execution of this Agreement and in any
event not later than 5.00 p.m. on 9th November 1995, the SAGA Fund
shall deliver, or procure that there are delivered, to SBC Warburg:
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(a) four copies of the Placement Memorandum signed by each of
the Directors (or by his agent or attorney duly authorised
in writing), together with a certified copy of any such
authorisations;
(b) one copy of the Verification Notes signed by or on behalf
of each of the persons named therein as being responsible
therefor, including, in the case of those relating to the
Placement Memorandum, each of the Directors;
(c) one certified copy of the minutes of the meeting of the
Directors (in, or substantially in, the form previously
approved by SBC Warburg) at which resolutions were passed,
inter alia, approving the Placement Memorandum and
authorising its issue and approving this Agreement, the
other Material Contracts and the making of the Application,
together with one copy of all documents referred to in such
minutes as being produced at such meeting to the extent not
otherwise provided to be supplied pursuant to this clause;
(d) one certified copy of each of the Memorandum and Articles
of Association and Bye-laws of the SAGA Fund and the
Declaration of Trust of the Master Trust;
(e) one certified copy of (i) the responsibility statement
given by each of the Directors in relation to the Placement
Memorandum and (ii) any power of attorney or other
authority granted by a Director pursuant to which any of
the documentation referred to in this clause 3.1 is signed;
(f) a copy of the memorandum prepared by Xxxxxx Xxxx explaining
to the Directors the nature of their responsibilities and
obligations in connection with the issue of the Placement
Memorandum;
(g) one certified copy of the certificate of incorporation of
the SAGA Fund;
(h) one certified copy of each of the Material Contracts other
than this Agreement.
In this clause 3.1 references to a certified copy shall mean a copy
of the relevant document certified by a Director or the Secretary
of the SAGA Fund as being a true copy of the original.
3.2 SBC Warburg may, in its absolute discretion, waive the requirement
that the SAGA Fund deliver to it any of the documents referred to
in clause 3.1 or may extend the time for delivery of any such
documents. Any waiver or extension may be granted by SBC Warburg
subject to such conditions as it shall in its absolute discretion
determine.
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3.3 As soon as reasonably practicable following the making of a request
in writing therefor by SBC Warburg to the SAGA Fund, the SAGA Fund
shall procure the delivery to SBC Warburg (or as SBC Warburg may
reasonably direct) of all such further information and documents as
SBC Warburg may reasonably require and which shall reasonably be
necessary for the purpose of SBC Warburg fulfilling its obligations
pursuant to this Agreement and in connection with the Initial
Offering.
4 PLACING AND SUBSCRIPTION
4.1 The SAGA Fund hereby irrevocably appoints SBC Warburg to act as the
sole lead agent of the SAGA Fund for the purpose of placing Shares
pursuant to the Initial Offering, which appointment SBC Warburg
hereby accepts. The SAGA Fund hereby confirms that the foregoing
appointment confers on SBC Warburg as agent as aforesaid all powers
(including the power to appoint placing agents subject as
hereinafter provided), authorities and discretions on behalf of the
SAGA Fund which are necessary for, or reasonably incidental to, the
performance of its duties hereunder on the terms and subject to the
conditions set out or referred to in this Agreement and the Issue
Documents, and the SAGA Fund hereby agrees to ratify and confirm
everything which SBC Warburg (and any placing agent appointed under
clause 4.2) shall lawfully do in the exercise of their respective
appointments, powers, authorities and discretions hereunder and
thereunder.
4.2 Without prejudice to the generality of clause 4.1, the SAGA Fund
hereby authorises SBC Warburg to appoint (on behalf of the SAGA
Fund) one or more placing agents approved in advance of their
appointment by Old Mutual and the SAGA Fund in connection with the
Placing, which agents shall be the agents of the SAGA Fund and not
of SBC Warburg. Such appointments shall be on such terms as the
SAGA Fund and Old Mutual shall approve, such approval not to be
unreasonably withheld or delayed. For the avoidance of any doubt,
SBC Warburg shall have no liability whatsoever for, or as a result
of, the acts or omissions of any placing agent appointed pursuant
to this clause 4.2 or for the negligence, fraud or default of any
such placing agent, unless such placing agent shall be an Affiliate
of SBC Warburg.
4.3 Pursuant to the appointment made by clause 4.1, on the terms and
subject to the conditions set out herein and in the Placement
Memorandum and in reliance on the Warranties and the indemnities
contained in clause 11, SBC Warburg hereby undertakes (as agent for
the SAGA Fund) to use its reasonable endeavours to procure placees
for Shares on the terms and subject to the conditions set out in
this Agreement and the Issue Documents, and the SAGA Fund approves
and adopts the issue by SBC Warburg of the Placing Letter for such
purpose.
4.4 For the avoidance of any doubt nothing in this Agreement or
otherwise shall oblige SBC Warburg to apply for or subscribe for
any Shares pursuant to the Placing or otherwise or impose an
absolute obligation on SBC Warburg to
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procure subscribers therefor (whether pursuant to the Placing or
otherwise), although SBC Warburg and its affiliates shall not be
debarred from participating in the Placing.
4.5 SBC Warburg represents and warrants and agrees with the SAGA Fund ,
the Master Trust and Old Mutual that (i) in marketing the Shares to
potential Placees under the Initial Offering, to the best of its
knowledge information and belief, SBC Warburg and any person
authorised to act on its behalf has acted and will act in
accordance with market practice and has not acted and will not act
in a manner which is likely to prejudice materially the interests
of the SAGA Fund (ii) this Agreement has been duly authorised and
executed on behalf of SBC Warburg and constitutes the legal, valid,
binding and enforceable obligation of SBC Warburg, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (iii) to the best of its knowledge
information and belief, neither SBC Warburg nor any person acting
on its behalf has engaged or will engage in any directed selling
efforts (as defined in Regulation S) with respect to the Shares in
the United States and (iv) to the best of its knowledge information
and belief, neither SBC Warburg nor any person acting on its behalf
has offered or sold and will not offer or sell the Shares in the
United States or for the account of a US Person.
4.6 If it should appear reasonably likely that less than
US$1,000,000,000 will be subscribed in aggregate for Shares under
the Initial Offering and shares of the OMEGA Fund under the Initial
Offering (as defined in the US Placement Agreement) the parties
hereto will, as soon as practicable after signature of this
Agreement, negotiate in good faith with each other and with Xxxxxxx
Xxxxxx and Xxxx International with a view to entering into a
separate agreement relating to the Second Offering as soon as
practicable. Such negotiations will be with a view to (a) SBC
Warburg, Xxxxxxx Xxxxxx and Rand International acting as agents for
the purpose of soliciting offers to subscribe for Shares pursuant
to the Second Offering and (b) the Second Offering being made on
substantially the terms and conditions described or referred to in
the Placement Memorandum and in the Engagement Letter.
5 APPLICATION TO THE IRISH STOCK EXCHANGE
5.1 The SAGA Fund hereby confirms to SBC Warburg that it has made
application through the Brokers to the Irish Stock Exchange for
approval of the Placement Memorandum as listing particulars and the
SAGA Fund hereby undertakes to SBC Warburg that it will proceed, at
its own expense, with the Application and the SAGA Fund shall, to
the extent that the same lies within its powers and it is lawful to
do so, take all such steps, execute all such documents, supply all
such information and documents, give all such undertakings, pay all
such fees and other expenses and do or procure to be done all such
things as may be properly required by the Irish Stock Exchange or
reasonably required by SBC Warburg in relation to the Application
and to obtain the approval of the Committee of the Irish Stock
Exchange to the admission of the Issued
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Capital to the Official List (subject only to allotment) so as to
enable Admission to become effective by 9.30 a.m. on 13th November
1995.
5.2 The SAGA Fund shall procure that:
(a) subject to the Placement Memorandum having been approved by
the Irish Stock Exchange, one copy thereof shall be
delivered to the Registrar of Companies in Dublin for
registration as required by Section 364 of the Irish
Companies Act by not later than 3.00 p.m. on 27th October
1995;
(b) subject to delivery of the Placement Memorandum for
registration as required by clause 5.2(a), the Placement
Memorandum shall be made available as required by the
Listing Rules and the Formal Notice shall be published in
the Irish Stock Exchange Daily Official List by not later
than 10th November 1995 or in such other manner or on such
other date as the SAGA Fund and SBC Warburg may agree,
subject, to the approval of the Irish Stock Exchange. If
for any reason such advertising of the Formal Notice as
aforesaid does not take place, such other advertising of or
other means of publicising the Placement Memorandum as
shall be practicable shall take place on such date(s) as
the SAGA Fund and SBC Warburg may agree subject to the
approval of the Irish Stock Exchange; and
(c) the documents stated in the Placement Memorandum as being
available for inspection shall be made so available at the
places mentioned therein as required by the Listing Rules.
5.3 Each of the SAGA Fund, the Master Trust and Old Mutual agrees with
SBC Warburg that if at any time after submission of the Placement
Memorandum to the Irish Stock Exchange and before Admission there
is a material change affecting any matter contained in the
Placement Memorandum the inclusion of which was required by the
Irish Companies Act or by the Listing Rules or by the Irish Stock
Exchange or a significant new matter arises the inclusion in the
Placement Memorandum of information in respect of which would have
been so required if it had arisen before the Placement Memorandum
was so submitted, each of the SAGA Fund, the Master Trust and Old
Mutual undertakes promptly to notify SBC Warburg thereof (with full
details) forthwith upon becoming aware of the same (but if one of
the SAGA Fund, the Master Trust or Old Mutual shall so notify, the
others shall not be obliged to make the same notification). In any
such case, without limitation or prejudice to the rights of SBC
Warburg under clause 13, SBC Warburg may require the SAGA Fund at
its own expense to make or cause to be made such announcement
and/or despatch such communication or supplement to the Placement
Memorandum as SBC Warburg shall, after consultation with the SAGA
Fund, reasonably consider necessary and the SAGA Fund and SBC
Warburg shall promptly consult regarding the form and contents, and
method of publication, of any further document which may be
required. For the
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avoidance of doubt the SAGA Fund shall not publish any such further
document unless and until it is approved by SBC Warburg (such
approval not to be unreasonably withheld or delayed) and by the
Irish Stock Exchange (through the Brokers).
5.4 SBC Warburg shall provide all reasonable and timely assistance to
the SAGA Fund in connection with the Application.
6 ANNOUNCEMENTS
6.1 The SAGA Fund hereby authorises and directs SBC Warburg to release
to the Irish Stock Exchange (through the Brokers) on the Completion
Day an announcement in the form required by the Irish Stock
Exchange in connection with the Listing of the Shares.
6.2 Save as provided in clauses 4.3, 5, 6.1 or 10.4 or as required by
law or by the Irish Stock Exchange, all announcements and circulars
by or on behalf of any of the parties hereto and relating to the
Placing and its associated transactions shall be in terms to be
agreed between Old Mutual, the SAGA Fund and SBC Warburg, such
agreement not to be unreasonably withheld or delayed.
7 CLOSING, ALLOTMENT AND SETTLEMENT
7.1 It is agreed that allocations of Shares under the Initial Offering
shall be determined by SBC Warburg at its discretion after
consultation with the SAGA Fund and Old Mutual and SBC Warburg
shall notify the SAGA Fund and Old Mutual if it wishes to reject
any proposed subscription in whole or in part. No allocation of
Shares under the Initial Offering shall be made to any single
investor (or any investor which together with its affiliates (as
defined in the US Placement Agreement)) which is proposing to
subscribe for 3,000,000 or more Shares without the consent of the
SAGA Fund and Old Mutual. The SAGA Fund shall, as soon as
practicable following fulfilment or waiver of the Conditions (other
than that set out in clause 2.1(f)) and in any event not later than
5.00 p.m. (Bermuda time) on the Initial Closing Date by resolution
of the board of directors of the SAGA Fund (or a duly authorised
committee thereof) allot fully paid to Placees the numbers of
Shares which they have agreed to acquire pursuant to the Initial
Offering in such proportions and such names as SBC Warburg shall
previously have notified to the SAGA Fund.
7.2 The Placing Letters will request Placees to make payment for their
Shares directly to a nominated bank account of the SAGA Fund by not
later than 9.30 a.m. (United States Eastern time) on the Initial
Closing Date and the SAGA Fund will give details in writing to SBC
Warburg by not later than 11 a.m. (United States Eastern time) on
the Initial Closing Date of any Placee which has not made payment
to the SAGA Fund for the Shares to be subscribed by it. If there is
any such Placee SBC Warburg may either cancel the relevant
allocation to such Placee on behalf of the SAGA Fund or accept,
with the consent of the SAGA Fund, such late payment with interest
thereon (for the
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account of the SAGA Fund) at LIBOR plus 1 per cent. in respect of
each day (or part thereof) from the due time for such payment to
the time when such payment is actually made.
7.3 The Shares to be allotted pursuant to clause 7.1 shall be allotted
subject to the Memorandum of Association and Bye- laws of the SAGA
Fund and on the terms set out or referred to in this Agreement and
the Placement Memorandum free from all liens, charges,
encumbrances, equities and other third party rights of any nature
whatsoever.
7.4 The resolution allotting Shares to be made pursuant to clause 7.1
shall be on terms directing the Secretary of the SAGA Fund to issue
Shares in the proportions and names referred to in clause 7.1 upon
and subject to Admission.
7.5 The SAGA Fund shall deliver to the Brokers a certified copy of the
resolutions of the board of directors of the SAGA Fund (or a duly
authorised committee thereof) allotting Shares pursuant to clause
7.1, if practicable, so as to permit the same to be delivered to
the Irish Stock Exchange by 9.00 a.m. on the day on which Admission
is expected to become effective.
8 REGISTRATION
8.1 The SAGA Fund shall procure that at the cost of the SAGA Fund:
(a) confirmations of ownership in respect of the Shares
allotted pursuant to the Initial Offering in the names of
the respective allottees shall be prepared and despatched
to such persons not later than 14th November 1995 provided
that no such confirmations shall be required to be
despatched in respect of Shares for which payment has not
been received; and
(b) as soon as reasonably practicable after Admission the
register of members of the SAGA Fund shall be made up to
reflect such allotments and transfers.
8.2 The SAGA Fund hereby undertakes to SBC Warburg that, as soon as
reasonably practicable following receipt of a late payment from a
Placee which has been allotted Shares pursuant to clause 7.2 it
shall notify SBC Warburg thereof and arrange for a confirmation of
ownership to be despatched to such Placee.
9 REMUNERATION AND EXPENSES
9.1 Subject to this Agreement becoming unconditional in all respects:
(a) the Master Trust shall pay to SBC Warburg, a placement fee
equal to 0.25 per cent of an amount determined by
multiplying the total number
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of Shares of the SAGA Fund placed in the Initial Offering
by SBC Warburg (or any agent appointed pursuant to clause
4.2) by the Placing Price;
(b) the SAGA Fund shall pay to SBC Warburg, an amount equal to
the out-of-pocket expenses (including but not limited to
legal and accountancy fees and disbursements in any
jurisdiction plus any VAT (or equivalent tax) charged
thereon to the extent that SBC Warburg is not entitled to a
credit therefor under sections 14 and 15 VATA or any
equivalent legislation) reasonably incurred by SBC Warburg
in connection with the Placing and the Application.
The amount payable pursuant to clause 9.1(a) shall become due and
payable by the Master Trust to SBC Warburg at 10 a.m. on the
Completion Day. The amount payable pursuant to clause 9.1(b) shall
be payable on demand by SBC Warburg.
9.2 Subject as provided in clause 13, the SAGA Fund hereby agrees with
and undertakes to SBC Warburg that it shall be liable for, and
shall promptly pay, all the preliminary costs and expenses of the
SAGA Fund, and all costs, charges, fees and expenses howsoever of,
or incidental to, the Initial Offering and the Application,
including without limitation, all fees of the Irish Stock Exchange,
all accountancy and legal expenses in any jurisdiction and public
relations consultants', design consultants' and other professional
fees, the costs of printing, advertising and circulating the Issue
Documents and any related documents, transfer agents' fees and
expenses and all costs of marketing the Initial Offering (including
without limitation the roadshows), together, in each case, if
appropriate, with any VAT thereon. In the event that any such
costs, charges, fees or expenses are in the first instance incurred
by SBC Warburg, the SAGA Fund shall promptly reimburse SBC Warburg
in respect of the same. The Master Trust agrees to pay all the
costs of its establishment.
9.3 All sums payable to SBC Warburg under this Agreement shall be paid
free and clear of all deductions or withholdings unless the
deduction or withholding is required by law, in which event the
party required to make the payment shall pay to SBC Warburg such
additional amount as shall be required to ensure that the net
amount retained by SBC Warburg is equal to the full amount which
would have been received by it had no such deduction or withholding
been made.
9.4 Where the SAGA Fund reimburses SBC Warburg in respect of any costs,
charges or expenses, the SAGA Fund shall in addition pay to SBC
Warburg in respect of VAT:
(a) if any reimbursement in respect of costs, charges or
expenses constitutes part of the consideration for any
supply of services to the SAGA Fund, such amount as equals
any VAT charged to SBC Warburg in respect of the said
costs, charges or expenses which is not
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recoverable by SBC Warburg by repayment or set-off,
together with any amount representing any VAT properly
chargeable in respect of the consideration for that supply
(including such irrecoverable VAT); and
(b) if any such costs, charges or expenses constitute
disbursements incurred by SBC Warburg as agent on behalf of
the SAGA Fund, any VAT charged thereon to SBC Warburg.
9.5 OMAM shall on the third anniversary of the Initial Closing Date,
pay or procure the payment to SBC Warburg for providing or
procuring the provision of ongoing services for shareholders a
servicing fee in respect of all Qualifying Shares of an amount
equal to 0.125 per cent per annum of the proportion of the Master
Trust's average daily net assets represented by Qualifying Shares
during the period ending on such third anniversary.
9.6 Each of OMAM and Old Mutual undertakes to SBC Warburg at its own
expense to take such steps as may be necessary and as shall be
reasonably satisfactory to SBC Warburg in order to ensure that
Qualifying Shares are at all times capable of being identified and
to ensure that the amount of the servicing fee payable to SBC
Warburg pursuant to clause 9.5 is capable of being determined. The
Master Trust and the SAGA Fund agree to facilitate the taking of
such steps by OMAM and Old Mutual to the extent practicable. For
the purpose of determining such servicing fee if a holder of both
Shares which are eligible to become Qualifying Shares ("Eligible
Shares") and other Shares redeems any Shares he shall be deemed not
to have redeemed any Eligible Shares until all such other Shares
have been redeemed by him. Any dispute or difference as to such
servicing fee shall be referred to the auditors of the Master Trust
for the time being who shall be deemed to be acting as experts and
not as arbitrators and whose certificate as to such servicing fee
shall be final and binding on the parties. The fees of such
auditors shall be borne by Old Mutual and SBC Warburg equally and
such parties shall undertake liability to such auditors for the
payment of their fees.
9.7 Any VAT properly chargeable in respect of any amount payable to SBC
Warburg pursuant to this Agreement (including without limitation
clause 9.1) shall be paid in addition to, and together with and at
the same time as, such amount.
9.8 OMAM shall provide or cause to be provided to the board of trustees
of the Master Trust such written reports regarding the amount and
purpose of any expenditures made pursuant to the Master Trust 12b-1
Plan as may be required by Rule 12b- 1(b)(3)(ii) under the
Investment Company Act.
10 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
10.1 In consideration of SBC Warburg entering into this Agreement the
Warrantors (other than the Master Trust) jointly and severally
represent, warrant and undertake and The Master Trust severally
represents, warrants and undertakes
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(but only for or as to itself, as the case may be) to SBC Warburg
in the terms set out in schedule 1.
10.2 (a) If a claim is made under this Agreement against a
Warrantor other than the SAGA Fund or the Master Trust,
such Warrantor shall not have, or pursue, any claim or
third party action to join, claim against, seek a
contribution from or otherwise claim or seek damages or
compensation from the SAGA Fund or the Master Trust.
(b) Each Warrantor other than the SAGA Fund and the Master
Trust hereby confirms to SBC Warburg that neither the
SAGA Fund nor the Master Trust has entered into any
agreement or arrangement concerning its liability for any
breach of the Warranties given by such Warrantor in
schedule 1 or its liability in relation to any other
covenant, term or condition set forth in this Agreement.
10.3 Each of the Warrantors severally undertakes to SBC Warburg:
(a) that it shall not do or procure or knowingly allow (so
far as it is within its power not to so allow) any act or
omission before Admission which would constitute a breach
of any of the Warranties or would make any of them untrue
or inaccurate or misleading if repeated by reference to
the facts and circumstances subsisting at any time prior
to Admission; and
(b) to notify SBC Warburg forthwith if it becomes aware at
any time up to Admission that any of the Warranties was
untrue or inaccurate or misleading in any material
respect or would, if repeated by reference to the facts
and circumstances subsisting at any time prior to
Admission, be untrue or inaccurate or misleading in any
material respect.
10.4 If at any time prior to Admission SBC Warburg shall receive
notification pursuant to clause 10.3(b) or shall otherwise become
aware that any of the Warranties is or has become or is likely to
become untrue, inaccurate or misleading in any material respect,
SBC Warburg may, without prejudice to its right to terminate its
obligations under this Agreement pursuant to clause 12, require the
SAGA Fund and/or the Master Trust and/or Old Mutual at its own
expense to make or cause to be made such announcement and/or
despatch such communication as SBC Warburg may reasonably require.
10.5 If supplementary listing particulars or a supplement to the
Placement Memorandum is required to be published, whether pursuant
to the Listing Rules or otherwise the Warranties shall,
notwithstanding any provision of this Agreement, be deemed to be
repeated on the date of publication of such supplementary listing
particulars or supplement to the Placement Memorandum and when so
repeated shall be read and construed as if the references therein
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to the Placement Memorandum meant the Placement Memorandum when
read together with such supplementary listing particulars or
supplement.
10.6 The Warranties shall remain in full force and effect
notwithstanding completion of this Agreement and the Placing.
10.7 Each Warrantor undertakes to SBC Warburg to comply with the
obligations undertaken by it under the Portfolio Transfer and
Subscription Agreement.
10.8 Old Mutual undertakes to ensure that each of Old Mutual Bermuda and
OMAM complies with its obligations under this Agreement.
10.9 The Master Trust undertakes to SBC Warburg and the SAGA Fund (i)
that it will not, within a period of 12 months from the Initial
Closing Date without prior consultation with SBC Warburg and the
SAGA Fund, issue any shares of beneficial interest in the Master
Trust to investors other than OMAM, the SAGA Fund, the OMEGA Fund
and Old Mutual Bermuda in accordance with the arrangements
described in the Placement Memorandum and the US Private Placement
Memorandum and (ii) that it will not so issue any shares of
beneficial interest if the result of such issue would be to
prejudice the interests of the SAGA Fund.
10.10 The SAGA Fund hereby confirms to SBC Warburg that each of the
Directors has received a copy of the memorandum referred to in
clause 3.1(f).
11 INDEMNITY
11.1 No claim shall be made against SBC Warburg or any of its affiliates
by any of the Warrantors to recover any loss, damage, liability,
cost, charge or expense which any Warrantor may suffer or incur by
reason of or arising out of the carrying out by (or on behalf of)
SBC Warburg of its obligations and services under this Agreement or
otherwise in connection with the Placing and its associated
transactions or the proper exercise of its rights in accordance
with any provision hereof (including without limitation, financial
advisory services) unless such loss, damage, liability, cost,
charge or expense shall have arisen by reason of the negligence,
fraud or wilful default of SBC Warburg or any of its agents or
affiliates or a breach by SBC Warburg of its obligations
representations or warranties under this Agreement.
11.2 The Warrantors (other than the Master Trust) hereby jointly and
severally undertake and the Master Trust severally undertakes to
SBC Warburg for itself and as agent or trustee on behalf of and for
the benefit of each and every other Indemnified Person (as defined
in clause 11.7) to keep each and every Indemnified Person fully and
effectively indemnified and held harmless from and against all or
any losses, claims (whether successful, compromised or not),
liabilities, actions, demands, proceedings, judgements and all
reasonable costs, charges and expenses which any Indemnified Person
may suffer or incur or which may be made, brought or established
against any Indemnified Person in
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any jurisdiction whatsoever by a subscriber of Shares pursuant to
the Placing or by any subsequent purchaser or transferee of Shares
or by any other person, government, governmental agency or
regulatory body whatsoever, including without limitation all such
reasonable costs, charges and expenses which such Indemnified
Person suffers or incurs in determining the extent of any such loss
or in investigating, responding to, defending or disputing any such
claim, liability, action or demand (whether or not the same is
defended or disputed successfully) and the reasonable costs and
expenses of the Indemnified Person in enforcing its rights under
this clause 11, and which in any case is occasioned by or results
from or is attributable to or arises in connection with (whether
directly or indirectly) the arrangements referred to in or
contemplated by this Agreement and/or the Placement Memorandum,
including without limitation:
(a) any of the Warranties given pursuant to clause 10.1 being,
or being alleged to be, untrue, inaccurate or misleading in
any respect; and/or
(b) any breach by a Warrantor of any of its obligations under
this Agreement; and/or
(c) the creation, allotment and issue of the Shares; and/or
(d) the Placement Memorandum not containing, or being alleged
not to contain, all information required to be stated
therein by any law or regulation, or any statement therein
(whether of fact, opinion, expectation or intention,
including any forecast or estimate) being, or being alleged
to be, untrue, inaccurate, incomplete or misleading in a
material respect or (in the case of an opinion, expectation
or intention) not based on reasonable grounds or having
been made negligently or otherwise without the required
standard of skill and care; and/or
(e) any misrepresentation or alleged misrepresentation (by
whomsoever made) being contained, or being alleged to be
contained, in the Placement Memorandum; and/or
(f) the performance by or on behalf of SBC Warburg of its
obligations under this Agreement or otherwise in connection
with the Placing and the arrangements hereby contemplated;
and/or
(g) any breach or alleged breach of the laws or regulations of
any country resulting from the distribution of the Issue
Documents or any other marketing material relating to the
Placing or the Shares authorised for issue by the SAGA Fund
(including without limitation the Preliminary Placement
Memorandum dated 15th September 1995, a report entitled
"Overview of the South African Economy", a report prepared
by Messrs. Xxxx Xxxxx, Xxx & Co. relating to the Portfolio,
a summary of the Placement Memorandum dated 4th September
1995 and the slides
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used during the roadshows) or the allotment and issue of
the Shares; and/or
(h) the transfer of the Portfolio to the Master Trust,
save to the extent that any such loss, claim, liability, action,
demand, proceeding, judgment, cost, charge or expense shall have
arisen by reason of the negligence, fraud or wilful default of SBC
Warburg or any of its affiliates or any breach by any Indemnified
Person of any of its duties or obligations hereunder.
11.3 If any claim is made, or alleged, against any Indemnified Person,
SBC Warburg shall, as soon as reasonably practicable after SBC
Warburg becomes aware thereof, notify the Warrantors. If a
Warrantor is notified of a claim made or threatened to be made
against any Indemnified Person, it shall provide such Indemnified
Person with all such information and assistance in relation thereto
as such Indemnified Person shall reasonably require. SBC Warburg
will, to the extent practicable, consult with any relevant
Warrantor regarding the defence and possible settlement of any
action to which the indemnity in clause 11.2 relates and will keep
such Warrantor apprised as to the progress of any such action.
11.4 All sums payable under any indemnity contained in this clause 11
shall be paid free and clear of all deductions or withholdings
whatsoever save only as may be required by law. If any such
deductions or withholdings are required by law or if the United
Kingdom Inland Revenue or any other taxing authority in any
jurisdiction brings into any charge to taxation (or into any
computation of income, profits or gains for the purposes of any
charge to taxation) any sum payable under any indemnity contained
in this clause 11, then the amount so payable shall be grossed up
by such amount as will ensure that after such deduction or
withholding or the deduction of such tax there shall remain a sum
equal to the amount which would otherwise be payable under such
indemnity (additional payments being made by the relevant Warrantor
as necessary from time to time).
11.5 Nothing in this clause 11 shall preclude SBC Warburg or any other
Indemnified Person from exercising any rights it may have at common
law or otherwise, including without limitation any right of
contribution. For the avoidance of doubt and without prejudice to
the generality of the foregoing, any indemnity contained in this
clause 11 is in addition to and not in substitution for any and all
indemnities to which SBC Warburg is entitled at law as agent of the
SAGA Fund, provided that nothing in this clause shall entitle SBC
Warburg to claim twice in respect of the same matter.
11.6 Any exclusion of liability on the part of SBC Warburg contained
herein shall take effect subject to any limitations imposed thereon
by the FSA or the Rules of the Securities and Futures Authority
Limited.
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11.7 In this clause 11, "Indemnified Persons" shall mean SBC Warburg,
and each of its affiliates and "Indemnified Person" shall be
construed accordingly.
12 TERMINATION
12.1 If at any time prior to Admission it shall come to the knowledge of
any Warrantor or SBC Warburg that:
(a) any statement contained in the Placement Memorandum is or
has become untrue, inaccurate or misleading; or
(b) any matter has arisen which would, if the Placement
Memorandum were issued at that time, constitute an omission
therefrom of matters required to be included therein; or
(c) any of the Warranties was untrue or inaccurate or
misleading as at the date hereof or would, if repeated by
reference to the facts and circumstances subsisting at any
time prior to Admission, be untrue or inaccurate or
misleading; or
(d) any Warrantor has not complied or cannot comply with its
obligations under this Agreement,
and such fact or event is, of itself or taken together with any
other such fact or event, material in the context of the Placing,
the relevant Warrantor or SBC Warburg (as the case may be) shall
forthwith give notice thereof to the other parties to this
Agreement and SBC Warburg shall have the right (exercisable in its
absolute discretion but after consultation with Old Mutual and the
SAGA Fund) at any time prior to Admission by notice in writing to
other parties to this Agreement to terminate the obligations of SBC
Warburg hereunder, in which event the provisions of clause 13 shall
apply.
12.2 This Agreement shall be terminable by the SAGA Fund giving notice
to the other parties to this Agreement in the event that SBC
Warburg shall be in material breach of this Agreement.
12.3 If at any time prior to Admission any government regulation, crisis
of international or national effect or any change in the conditions
prevailing in any relevant financial market which is likely
materially and adversely to affect the SAGA Fund and/or the
Portfolio or which will make it inadvisable or inexpedient to
proceed with the Placing occurs or comes into effect, each of SBC
Warburg and Old Mutual shall have the right (subject to the prior
consent of the other) at any time prior to Admission by notice in
writing to the other parties to this Agreement to terminate this
Agreement.
12.4 The obligations of the Master Trust under this Agreement shall
continue in effect for a period beyond one year from the date
hereof only so long as such continuance is specifically approved at
least annually in the manner described
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in Rule 12b-1(b)(2) under the Investment Company Act, and if not so
approved shall be deemed terminated.
12.5 The obligations of the Master Trust under this Agreement may be
terminated at any time, without the payment of any penalty, by (i)
a majority of the members of the board of trustees of the Master
Trust who are not interested persons of the Master Trust and have
no direct or indirect financial interest in the operation of the
Master Trust 12b-1 Plan or in any agreements related to such plan
or (ii) the vote of a Majority of the Outstanding Voting Securities
of the Master Trust, in each case, on 60 days' notice given to each
of the other parties hereto.
12.6 This Agreement will automatically terminate in the event of its
assignment (as defined in the Investment Company Act) by SBC
Warburg.
12.7 If this Agreement is terminated prior to Admission pursuant to
clauses 12.2 or 12.3 the provisions of clause 13 shall apply.
13 EFFECT OF TERMINATION
In the event that SBC Warburg, Old Mutual or the SAGA Fund shall
exercise its right pursuant to clause 12 to terminate this
Agreement or the provisions of this clause shall apply by virtue of
clause 2.3, subject to the following provisions of this clause, all
the outstanding obligations of SBC Warburg hereunder (and
accordingly all obligations of Placees) and any outstanding
obligations of any Warrantor shall cease and determine and none of
the parties hereto shall have any claim against any other in
respect of any matter or thing arising out of or in connection with
this Agreement for compensation, costs, damages or otherwise
howsoever save that:
(a) Old Mutual shall, so long as no shares of the OMEGA Fund
shall have been subscribed under the Initial Offering as
defined in the US Placement Agreement, pay SBC Warburg a
fee of US$250,000 for its services in connection with the
Initial Offering and its associated transactions;
(b) Old Mutual shall be liable for the legal fees and
disbursements reasonably incurred by SBC Warburg in
connection with the Placing and its associated transactions
plus any VAT charged thereon and all such costs, charges,
fees and expenses as are referred to in clause 9.2;
(c) clause 11 (and any provision hereof necessary for the
purpose of interpretation thereof) shall continue in full
force and effect for all purposes;
(d) such termination shall not prejudice any accrued rights or
claims by any party against any other party hereto
(including without limitation any right to make a claim
under the Warranties in relation to any such
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matter as gave rise to a right to terminate this Agreement
under clause 12) (it being understood that no claim for
lost profits or commissions will survive such termination
if such termination occurs before Admission);
(e) the SAGA Fund and SBC Warburg shall take such steps as may
be necessary to withdraw the Application and, if so
requested in writing by SBC Warburg, the SAGA Fund shall
make a press announcement in a form reasonably required by
SBC Warburg;
(f) the SAGA Fund shall forthwith repay all amounts received
from Placees in respect of the subscription price of the
Shares.
14 CONTINUING OBLIGATIONS
14.1 The SAGA Fund (in so far as lies within its powers howsoever
arising) hereby undertakes to SBC Warburg that, except for the
release of the announcement referred to in clause 6.1 and the
publication of the Issue Documents or as may be required by the
Irish Stock Exchange or any other regulatory authority or under any
applicable laws or by any provision of this Agreement and except
for the issue of marketing material as part of the Second Offering
to institutional investors, neither the SAGA Fund nor any person on
its behalf will at any time prior to the publication of the SAGA
Fund's audited accounts for the period ending 30th June 1996 make
any public announcement, public statement or public communication
regarding the SAGA Fund which is material in relation to the
Placing and/or the Shares, whether in response to enquiries or
otherwise, without the prior consent of SBC Warburg, such consent
not to be unreasonably withheld or delayed.
14.2 Each of the SAGA Fund and the Master Trust undertake to SBC Warburg
that it will not between the date of this Agreement and the date on
which the SAGA Fund's audited accounts for the period ending 30th
June 1996 are published enter into any commitment or agreement or
arrangement or knowingly do or permit to be done any other act or
thing which, in any such case, constitutes a significant change in
a matter contained in the Placement Memorandum or a significant new
matter capable of affecting assessment of the Shares or which would
otherwise give rise to any obligation to make any announcement to
the Irish Stock Exchange in accordance with the Listing Rules
without the prior consent of SBC Warburg, such consent not to be
unreasonably withheld or delayed.
14.3 Each of the SAGA Fund and the Master Trust hereby undertakes to SBC
Warburg that it shall at all times during the period (the "Relevant
Period" ending on the date of publication of the report and
accounts of the SAGA Fund and the Master Trust for the period
ending 30th June 1996 (or any extended or shortened accounting
period substituted therefor):
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(a) notify SBC Warburg in advance of, and forward to SBC
Warburg for comment final proofs of, and discuss with SBC
Warburg the content, timing and manner of, any announcement
of profits or losses and dividends of the SAGA Fund and the
Master Trust and any other information which is, in the
reasonable opinion of the SAGA Fund or the Master Trust (as
the case may require), likely materially to affect the
general character or nature of the business of the SAGA
Fund and/or the Master Trust or which may be necessary to
be made known to the public in order to enable shareholders
and the public to appraise the position of the SAGA Fund;
(b) forward to SBC Warburg for comment the final proofs of all
documents to be sent by the SAGA Fund to the holders of the
SAGA Fund's securities and all press announcements to be
issued by the SAGA Fund to the Irish Stock Exchange; and
(c) not take any steps which in the reasonable opinion of SBC
Warburg would be materially inconsistent with any
expression of policy or intention in the Placement
Memorandum.
14.4 During the Relevant Period the SAGA Fund and the Master Trust shall
not alter, revise or amend the terms of, or terminate, any of the
Material Contracts or waive any condition thereof except as
previously agreed by SBC Warburg in writing (such agreement not to
be unreasonably withheld or delayed).
15 NOTICES
15.1 Any notice or other communication to be given or made under or in
connection with this Agreement shall be in writing for the
attention of the relevant person stated below and served personally
or sent by prepaid registered mail to the respective address set
out below or by fax to the relevant number set out below or
otherwise as the party required to receive the same may from time
to time notify to the other parties:
(a) the Master Trust, the SAGA Fund, OMAM and Old Mutual
Bermuda
Richmond House
12 Par-la-Ville Road
Hamilton, Bermuda
Fax no: 000 000 0000
Attention: J.C.R. Xxxxxx
(b) Old Mutual
Mutualpark
Xxx Xxxxx Drive
Pinelands 7405
Xxxx Xxxx
00
00
Xxxxx Xxxxxx
Fax no: 00 0000 000 0000
Attention: X.X. Xxxxxx
(c) SBC Warburg
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax no: 0000 000 0000
Attention: Xxxxxx Xxxxx
15.2 Any such notice or other communication shall be deemed to have been
served:
(a) if delivered personally, at the time of delivery;
(b) if posted, at 10.00 a.m. on the fourth business day after
it was put into the post; and
(c) if sent by fax, upon transmission and the receipt of the
appropriate answerback at the end of such transmission.
15.3 In proving such service by post it shall be sufficient to prove
that the letter containing the notice was properly addressed and
delivered or put into the post as a prepaid registered letter. In
proving effective transmission by fax, it shall be sufficient to
prove that the fax containing such notice was sent to the
appropriate number and the appropriate answerback was received at
the end of the transmission in respect of the number of pages
comprised in the notice.
16 MISCELLANEOUS
16.1 No neglect, delay or indulgence on the part of any party hereto in
enforcing any term or condition hereof shall operate as a waiver
thereof. None of the parties hereto shall be entitled to assert
that any of its obligations has been waived unless the waiver was
granted in writing and any waiver granted shall not release that
party from performance of its remaining obligations. The exercise
of any right, power or remedy by any party hereto under this
Agreement shall not preclude any other or further exercise thereof
or the exercise of any other right, power or remedy howsoever
conferred. The rights, powers and remedies of any party hereto
herein provided are cumulative and are not exclusive of any rights,
powers or remedies provided by law or otherwise.
16.2 Any liability to SBC Warburg under this Agreement may in whole or
in part be released, compounded or compromised or time or
indulgence given by SBC Warburg in its absolute discretion as
regards any party under such liability without prejudicing or
affecting its rights against any other party in respect of the same
or a like liability, whether joint and several or otherwise.
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16.3 The provisions of this Agreement (including without prejudice to
the generality of the foregoing obligations, warranties,
representations, undertakings, indemnities and covenants) which
shall not have been fully completed shall continue in full force
and effect notwithstanding the completion of all matters and
arrangements referred to in or contemplated by this Agreement.
16.4 In exercising any right or power as trustee hereunder SBC Warburg
shall be entitled to act in such manner as it shall in its absolute
discretion consider appropriate and shall not be responsible in any
way to any other person for so acting.
16.5 The illegality or unenforceability of any part of this Agreement
shall not affect the legality or validity or enforceability of the
remainder of this Agreement.
16.6 Any time, date or period mentioned in this Agreement may be
extended by mutual agreement between Old Mutual the SAGA Fund and
SBC Warburg but as regards any time, date or period originally
fixed or so extended as aforesaid, time shall be of the essence of
this Agreement.
16.7 This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same agreement
and any party may enter into this Agreement by executing any such
counterpart.
17 PROTECTION OF TRUSTEES
17.1 This Agreement is executed and made by the trustees of the Master
Trust not individually, but as trustees under the Declaration of
Trust of the Master Trust dated as of September 1, 1995, and the
obligations of this Agreement are not binding upon any of the such
trustees individually.
18 GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance
with the laws of England.
18.2 Each of the parties hereto hereby submits to the exclusive
jurisdiction of the English Courts for all purposes relating to
this Agreement.
18.3 Each Warrantor hereby appoints Norose Notices Limited at its
registered office for the time being (being at the date hereof
Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX) to act as its
agent to accept service of process out of the English High Court in
relation to all matters arising out of this Agreement. If for any
reason such agent shall cease to be the agent of any such party for
the service of process, the relevant party shall forthwith notify
SBC Warburg and, on request of SBC Warburg, appoint a new agent for
service of process in England and deliver to SBC Warburg a copy of
the new agent's acceptance of that appointment within 30 days.
Nothing in this Agreement shall affect the right to serve process
in any other manner permitted by law.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
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SCHEDULE 1
WARRANTIES
1 Recitals (A) to (H) (both inclusive) are true and accurate in all respects.
2 All factual information supplied in writing by any Warrantor or the Directors
to SBC Warburg for the purposes of the Placing and the Placement Memorandum
(including without limitation all material supplied for the purposes of any
marketing activity or presentation relating thereto and the answers to the
questions contained in the Verification Notes), was, to the best of the
knowledge, information and belief of such party, when given, and remains,
true and accurate in all material respects and not incomplete or misleading
in any material respect and all forecasts, projections and estimates so
supplied have been made after due and proper consideration, are fair and
honest and represent reasonable expectations based on facts known or which
ought on reasonable enquiry to have been known to such party or the
Directors.
3 The Placement Memorandum complies with all applicable laws and the Listing
Rules and, without prejudice to the generality of the foregoing, contains all
the information which investors in the SAGA Fund and their professional
advisers would reasonably require, and reasonably expect to find there, for
the purpose of making an informed assessment of the assets and liabilities,
financial position, profits and losses and prospects of the SAGA Fund and the
Master Trust and of the rights attaching to the Shares.
4 All statements of fact contained in the Placement Memorandum are true and
accurate in all material respects and are not misleading and there are no
facts known or which on reasonable enquiry ought to have been known to the
SAGA Fund, the Master Trust, Old Mutual or the Directors which are not
disclosed in the Placement Memorandum the omission of which could make any
statement therein misleading in a material respect or which in the
circumstances of the Initial Offering and its associated transactions might
affect the import of any information contained in the Placement Memorandum in
a material respect or be material for disclosure therein or to any
prospective subscriber for Shares under the Initial Offering.
5 All statements, forecasts, estimates and expressions of opinion, intention
and expectation contained in the Placement Memorandum have been made after
due and proper consideration, are fair and honest and are reasonably based on
facts known to the SAGA Fund, the Master Trust, Old Mutual or the Directors
and, to the extent that they are based on reasonable assumptions, have regard
to the facts which are known or which on reasonable enquiry ought to have
been known to such party or the Directors.
6 The Initial Offering and the transactions referred to or provided for by the
Material Contracts and the creation, allotment and issue of the Shares, to
the
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extent appropriate, comply with the Statutes, the Listing Rules and all other
applicable laws, rules and regulations of Bermuda, the Republic of South
Africa and the Republic of Ireland. Any issue or distribution of the
Placement Memorandum or any marketing material relating to the SAGA Fund by
any Warrantor (other than any issue or distribution by SBC Warburg on behalf
of such Warrantor) will, to the extent appropriate, comply with the Statutes,
the Listing Rules and all other applicable laws, rules and regulations of
each jurisdiction in or into which such issue or distribution is made.
7 The SAGA Fund has power under its Memorandum of Association and Bye-Laws, and
the Directors are duly authorised and empowered, to allot and issue the
Shares comprised in the Initial Offering without any further sanction or
consent by members of the SAGA Fund or any class of them and no consents are
required by the SAGA Fund or the Directors to allot and issue any such
shares, or by any Warrantor to enter into and perform this Agreement and any
other Material Contract entered into by such Warrantor or by any Warrantor to
pay all commissions, fees, costs and expenses provided for herein, which in
each case have not been unconditionally obtained.
8 Compliance has been or will be made with all other legal requirements
concerning the SAGA Fund, the Master Trust and its officers and relating to
the Placing, the SAGA Fund's and the Master Trust's statutory books and
minute books have been or will at the Initial Closing Date be properly
written up and the SAGA Fund has not received any application or request for
rectification of its register of members.
9 A true and up-to-date copy of the Memorandum of Association and Bye-Laws of
the SAGA Fund (together with copies of all resolutions required by law to be
annexed thereto) and of the Declaration of Trust relating to the Master Trust
have been supplied to SBC Warburg or its legal counsel prior to the date of
this Agreement.
10 Neither the SAGA Fund nor the Master Trust has ever carried on any business
and has not incurred any material liabilities other than those referred to in
the Placement Memorandum and (apart from a registrars' agreement with
Westbroke Limited) the only material contracts to which each of the SAGA Fund
and the Master Trust is a party or by which it is bound are those described
in the Placement Memorandum.
11 No petition has been filed, order made or effective resolution passed for the
liquidation or winding-up of the SAGA Fund.
12 Neither the Master Trust nor the SAGA Fund is engaged in any material
litigation or arbitration proceedings or in any material proceedings before
any governmental, quasi-governmental or regulatory body and no such
proceedings are threatened or pending and there are no circumstances known to
any Warrantor which are likely to give rise to any such proceedings.
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13 The Placement Memorandum contains all relevant information concerning any
actual or potential material conflicts of interest between the SAGA Fund or
the Master Trust on the one hand and the Directors or any Warrantor on the
other hand of which the Warrantors are aware having made all reasonable
enquiries.
14 The SAGA Fund does not have any subsidiaries nor does it own any securities
or have any beneficial interest in any other company or entity and the SAGA
Fund has not entered into any binding commitment to acquire any investment
(other than interests in the Master Trust) or to enter into any joint venture
arrangement.
15 Neither the SAGA Fund nor, to the best of the knowledge and belief of the
Warrantors, any person acting on its behalf has engaged or will engage in any
directed selling efforts (as defined in Regulation S) with respect to the
Shares in the United States (except that no representation is made as to the
actions of SBC Warburg or any of its affiliates).
16 The SAGA Fund has received advice from its US legal counsel, Xxxxxxx, Xxxx &
Xxxxx, that on the Completion Day the SAGA Fund will not be an investment
company required to be registered under the Investment Company Act pursuant
to section 3(c)(i) of that Act.
17 Neither the SAGA Fund, nor any person acting on its behalf to the best of the
knowledge and belief of the SAGA Fund having made all reasonable enquiries,
has offered or sold or will offer or sell Shares in the United States or for
the account of a US Person (except that no representation is made as to the
actions of SBC Warburg or any of its affiliates).
18 The Master Trust has or will at the Initial Closing Date have good and
marketable title to the Portfolio free from all liens, charges, encumbrances,
equities and other third party rights; all governmental or other consents
required for the transfer of the Portfolio to the Master Trust will by the
date of its transfer have been obtained and be in full force and effect.
19 The Global Fund has or will at the Initial Closing Date have good and
marketable title to the Global Fund Portfolio (as defined in the Portfolio
Transfer and Subscription Agreement), free from all liens, charges,
encumbrances, equities and other third party rights; all governmental or
other consents required for the transfer of such Global Fund Portfolio to the
Global Fund will by the date of its transfer have been obtained and be in
full force and effect.
20 Each Warrantor has full power and authority to enter into and perform the
obligations imposed on it pursuant to the terms of, this Agreement and any
other Material Contract entered into by such Warrantor.
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21 The warranties numbered 1 to 4 (inclusive) in Annex A to the US Placement
Agreement are true and accurate in all respects in so far as they relate to
the Master Trust.
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SIGNED by XXXXXXX XXXXX )
for and on behalf of )
OLD MUTUAL SOUTH AFRICA )
EQUITY TRUST )
in the presence of: XXXXXX XXXXXXXX )
XXXXXXX XXXXX
Duly authorised signatory
SIGNED by XXXXXXX XXXXXXXX )
for and on behalf of )
OLD MUTUAL SOUTH AFRICA )
GROWTH ASSETS FUND LIMITED )
in the presence of: XXXXXX XXXXXXXX )
XXXXXXX XXXXXXXX
Duly authorised signatory
SIGNED by XXXXXXX XXXXXX )
for and on behalf of )
SOUTH AFRICAN MUTUAL LIFE )
ASSURANCE SOCIETY )
in the presence of: XXXXXX XXXXXXXX )
XXXXXXX XXXXXX
Duly authorised signatory
SIGNED by XXXXXXX XXXXXXX )
for and on behalf of )
OLD MUTUAL ASSET MANAGERS )
(BERMUDA) LIMITED )
in the presence of: XXXXXX XXXXXXXX )
XXXXXXX XXXXXXX
Duly authorised signatory
SIGNED by XXXXXXX XXXXXX )
for and on behalf of )
OLD MUTUAL FUND HOLDINGS )
(BERMUDA) LIMITED )
in the presence of: XXXXXX XXXXXXXX )
XXXXXXX XXXXXX
Duly authorised signatory
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SIGNED by XXXXXX XXXXX )
XXXXXXX XXXXXX )
for and on behalf of )
SWISS BANK CORPORATION )
in the presence of: XXXXXX XXXXXX )
XXXXXXX XXXXXX
XXXXXX XXXXX
Duly authorised signatory
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