--- title: "I Have Read Four Hundred Merger Agreements. This One Is A Marriage." dek: "The 1971 instrument between two houses contains a contribution schedule, an earn-out, a non-compete, a break fee and a claw-back. In 1994 a court enforced the break fee and awarded on it." kind: column (Column) desk: The Republic author: June Halloway (fictional) published: 2026-08-24T06:00:00Z url: https://theyburied.com/article/clause-eleven-non-compete tags: marriage settlements, Ancroft, Casa Anselmi-Vrede, trusts, break fees, succession genre: satire status: fiction — nothing in this story happened; every person, source and document is invented --- # I Have Read Four Hundred Merger Agreements. This One Is A Marriage. *The 1971 instrument between two houses contains a contribution schedule, an earn-out, a non-compete, a break fee and a claw-back. In 1994 a court enforced the break fee and awarded on it.* Clause 14 of a marriage settlement made in September 1971 says that if the marriage is dissolved within twenty-five years, otherwise than by the death of a party, the withdrawing house pays the other sixty-two thousand five hundred pounds, index-linked. The marriage was dissolved in 1993, in its twenty-second year. The other house sued on clause 14. It won four hundred and eighty-nine thousand pounds and its costs, and the judgment is reported at [1994] 2 F.L.R. 611, in a series every family practitioner owns. That is a break fee. Not like a break fee. It is one — the same instrument, drafted for the same reason, enforced by the same courts. I read merger agreements for a living from 1999 to 2006. Four hundred or so, at a guess, and the shape of one is not something you unlearn. When the Vayne-Marlbrook settlement reached my desk in May I did not think it resembled a deal document. I thought somebody had retyped one and changed the nouns. ## The five instruments An acquisition agreement has a small number of moving parts and they are always the same parts. A contribution schedule, saying what each side brings. An earn-out, paying more later if conditions are met. A non-compete, stopping the incoming party doing the same thing elsewhere. A break fee, payable if it comes apart. A claw-back, unwinding everything on a defined failure. Schedule 1 of the 1971 instrument is the contribution schedule: £1.2m and 3,100 acres in Northumberland from the Vayne-Marlbrooks; from Casa Anselmi-Vrede, the shares in a Trieste holding company and a reversionary interest in Suffolk. Clause 6 is the earn-out. It is a covenant to resettle further capital when the issue of the marriage attain their majority — a further payment, conditional on performance, promised to people who did not exist on the day it was promised. Clause 11 is the non-compete, and it has a schedule. Clause 14 is the break fee. Clause 19 is the claw-back: on failure of issue, the settled property reverts and the whole transaction unwinds. The parties were nineteen and twenty-two, and the court file records that they had met four times. > **Figure:** One marriage settlement, drawn as the deal document it is — see https://theyburied.com/article/clause-eleven-non-compete ## We took the names out and asked a stranger This is where pattern-matching stops and evidence starts. We took the 1971 instrument, removed the names and dates and the words marriage, spouse, husband, wife and issue, and sent it to a corporate finance partner at a London firm who had no idea what she was holding. One question: what is this document? Her answer, entire: > A fifty-fifty joint venture with an earn-out, a non-compete and a break fee. Mid-market. Badly typed. > > — A corporate finance partner, asked what the document was before anybody told her The only thing that had puzzled her, she said when we told her afterwards, was the twenty-five-year tail: long for a joint venture, about right for a family. Professor Delphine Marchetti-Okwuosa, who teaches the law of trusts, got the same text and named all five structures inside an hour. She was not surprised. There is one toolbox, she said, and everybody with something to protect reaches into it. ## Clause 11 in full The party of the second part shall not, during the subsistence of the settlement, accept nomination to or office in any of the bodies named in the Fourth Schedule, nor solicit the same, without the prior consent in writing of the trustees. The Fourth Schedule of the 1971 instrument names four: the Halstrow Trust, the Bellamont Institute for Comparative Law, the Fondazione Corvo-Rieti, and the Ancroft Educational Foundation. A person marrying into this family may not take a seat on four boards for as long as the settlement lasts. In a merger agreement that clause has a heading and the heading is Restrictive Covenants. ## The 2019 instrument The settlement was replaced on 6 March 2019, between a grandson of the 1971 marriage and a member of the other house. Same architecture, same clause numbers, sums indexed. The £62,500 break fee is now £940,000. The £1.2m is now £17.8m. The acreage is unchanged at 3,100, because land does not index — land is the index. Clause 11 survives. Its schedule has gone from a third of a page to twelve pages, and those twelve pages are the part we were not given. ## What I take from it This newspaper has spent ink on rosters and pedigrees — [[PX-1944]] traces nine families to 1644 — and on the chattel schedules that fall out of divorces, like [[PX-2167]]. Those record that a structure exists. They do not record how it is enforced. This does. A compact between two houses, twenty-two clauses, naming the boards a person marrying in may not sit on and the sum payable if it fails. Drafted in an office, signed before witnesses, exhibited to a court, and in 1994 a judge made one family pay the other four hundred and eighty-nine thousand pounds for leaving it. That is what is meant by an order with a membership. There is one, and it needs no oath, because an oath cannot be sued on and clause 14 can. Hereditary power in this country is administered by clause 6, clause 11, clause 14 and clause 19. The reason nobody reads them is not that they are sealed. It is that they are boring, and boring has been doing the work of secrecy for two hundred years. The boring stops where the Fourth Schedule begins. In 1971 it named four bodies in a third of a page. In 2019 it runs to twelve, and those twelve are the pages we were not given. Mr. Fitchett-Osei has drafted eleven instruments of this shape and will not name one. Nobody counts them. Nobody has built the shelf. ## Sources (invented) - The settlement of 14 September 1971, Instrument between the Vayne-Marlbrook family of Ancroft and Casa Anselmi-Vrede; 22 clauses, 4 schedules — Exhibited in full to the 1994 proceedings and read by this newspaper in the court file, which is open on application and cost eleven pounds (May 2026) - The instrument of 6 March 2019, Replacement settlement between the same two houses, one generation on — Supplied by a party to it. Clause numbering, covenants and the indexation formula are unredacted; addresses, bank details and the whole of the fourth schedule are not (June 2026) - Vayne-Marlbrook v. Anselmi-Vrede [1994] 2 F.L.R. 611, Judgment of Ockenden J., 8 November 1994; award and costs — Pulled from the bound volume at a subscription law library and read against the approved transcript (May 2026) - Prof. Delphine Marchetti-Okwuosa, Professor of the law of trusts — Sent the redacted 1971 text cold, with one question: what is this document? Interviewed by video call afterwards (June 2026) - A corporate finance partner at a London firm, Twenty-two years in mergers and acquisitions; not a family lawyer and has never read a settlement — Given the same redacted text with the words marriage, spouse, husband, wife and issue removed, and asked the same single question. Not named because her firm's clients are not part of this story (June 2026) ## Documents cited (invented) - PX-1944: https://theyburied.com/vault/PX-1944 - PX-2167: https://theyburied.com/vault/PX-2167 ## What we could not confirm - The fourth schedule of the 2019 instrument. Twelve pages, withheld from the copy we were given, listed in the index as 'Offices and Nominations'. In 1971 that schedule named four bodies and ran to a third of a page. We have asked for it twice and been refused twice, politely, and we do not know whether the growth is from four bodies to forty or from four bodies to four with a great deal of drafting round them. - How many instruments of this kind are in force. We have two. Mr. Fitchett-Osei says he has drafted eleven, and his is one firm among hundreds. We asked three professional bodies whether anyone counts settlements containing a restraint clause and none of them does, and one of them asked us why anybody would. - Whether clause 6 has ever been enforced against a person who was not born when it was signed. Clause 14 has been enforced and we can show you the page. The first cohort under clause 6 reached majority in 1993 and resettled on the terms set out for them, and we cannot establish whether either of them was ever told that resettling was a choice. ## Right of reply **Mr. Aurelian Fitchett-Osei, partner and head of private client, Fitchett Hallowes** (Replied 19 July 2026. Printed entire and unedited. He drafted the 2019 instrument and says so in his first line.): > I drafted the 2019 instrument and I am glad to say so, because your article proceeds as though somebody would not want to. > > Your column is accurate and your conclusion does not follow from it. You have discovered that the same profession solves the same problem the same way, which is what a profession is. Two parties wish to combine capital without either of them being able to destroy it unilaterally. There are perhaps five things you can do about that, and by 1890 the whole of the common law world had found all five. A schedule saying who brings what. A deferred provision so that the benefit is not all taken on day one. A restraint so that the person coming in cannot use the position against the people already there. A stated sum on early withdrawal, so that the parties argue about it now rather than in front of a judge later. And a reversion, so that if the purpose fails the property goes home. Call them a contribution schedule, an earn-out, a non-compete, a break fee and a claw-back if it pleases you. My profession called them that afterwards. We had them first. > > On clause 11 in particular. You call it a non-compete with a list, which is a good line and a poor description. Those four bodies have endowments the family settled and boards the family nominates to. A person marrying in acquires, on the day of the marriage, an interest in the capital those boards administer. Every trustee handbook printed in the last century says that such a person should not sit on those boards. You have taken a conflict-of-interest provision and described it as a restraint of trade, and in the one case where the point was argued, in 1994, the court took my view of it and not yours. > > On clause 6 you write that it binds people who are not born. Of course it does. Every settlement in England binds people who are not born; that is the entire mechanism by which a family holds anything for longer than one lifetime. If you object to that you do not object to my clients. You object to the trust, which is four hundred years old, and which currently keeps the roof on a great many buildings you would be sorry to see sold. > > Where I think you have earned your paragraph is on the fourth schedule, and I will not discuss it, and I am aware that saying so is not nothing. > > I will give you one figure since you asked for it. I have drafted eleven instruments of this general shape. Nine of them are between families whose names you would recognise if I gave them to you, which I will not. None of the eleven is secret. Not one of them is published either, and I understand that you regard the difference between those two words as the whole of your story. It is the whole of my practice as well. A thing can be entirely lawful, entirely ordinary, drafted by people who file their accounts, and still be invisible to you, and the reason for that is not a conspiracy. It is that nobody ever built the shelf you would need to go and look. --- They Buried is a satirical newspaper. Every story, source, document and person in it is invented. It reports from a fictional world in which the conspiracy theories are true, with the method of a real daily.