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Exhibit 2.1
STOCK PURCHASE AGREEMENT
This Agreement is entered into as of February 26, 1998, by and among Networks
Associates, Inc., dba Network Associates, Inc. ("NAI"), a Delaware corporation;
FSA Combination Corporation, (the "BUYER"), a Delaware Corporation and Xxxxxx
Xxxxx Xxxxx, ID number 551121 0154 184 ("SELLER"). NAI, the Buyer and the
Seller are referred to collectively herein as the "PARTIES."
A. The Seller owns all of the entire issued share capital of the Company
Syscon (Proprietary) Limited (as defined below).
B. This Agreement contemplates a transaction in which the Buyer will purchase
from the Seller, and the Seller will sell to the Buyer, all of the entire
issued share capital stock of the Company in exchange for the Purchase
Price (as set forth herein).
The Parties agree that a specified portion of the Purchase Price paid and the
Buyer shall be placed in escrow, the release of which shall be contingent on
certain events and conditions.
It is the intent of the Parties that this be a tax-free transaction accounted
for as a pooling of interest transaction under U.S. GAAP.
The Parties agree as follows:
1. DEFINITIONS
"ACCREDITED INVESTOR" has the meaning set forth in Regulation D promulgated
under the Securities Act.
"AFFILIATE" shall mean with respect to any Person, (a) any other Person at
the time directly or indirectly, controlling, controlled by or under direct
or indirect common control with such Person, (b) any Person of which such
person at the time owns or has the right to acquire, directly or
indirectly, twenty percent (20%) or more of any class of the capital stock
or beneficial interest, (c) any other Person which at the time owns, or has
the right to acquire, directly or indirectly, twenty percent (20%) or more
of any class of capital stock or beneficial interest of such Person, (d)
any executive officer or director of such
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person, (e) with respect to any partnership, joint venture or similar entity,
any general partner thereof and (f) any individual's immediate family or family
trust.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended.
"CONFIDENTIAL INFORMATION" means any information concerning the businesses and
affairs of the Company that is not already generally available to the public.
"EMPLOYEE BENEFIT PLAN" means any (a) deferred compensation or retirement plan
or arrangement, (b) defined contribution retirement plan or arrangement, (c)
defined benefit retirement plan or arrangement which, or (d) material fringe
benefit or other retirement, bonus, or incentive plan or program.
"FINANCIAL STATEMENTS" means the unaudited financial statements of the Company
for the 6 (six) months' ended 31 December 1997 which are attached to this
Agreement and initialled by the parties.
"ESCROW AMOUNT" means ten percent (10%) of the Purchase Consideration paid
pursuant to Section 2.5.
"GAAP (US)" means United States generally accepted accounting principles as in
effect from time to time.
"KNOWLEDGE" means actual knowledge after due investigation.
"LIABILITY" means any liability (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"LOSS" means claims, losses, deficits, damages, costs, liabilities and expenses
incurred by the Buyer, the Company or any of the Subsidiaries including, without
limitation, settlement costs and any reasonable legal, accounting and other
expenses for investigation or defending any actions or threatened actions.
"MATERIAL ADVERSE CHANGE" means a change adverse to the relevant Party resulting
in a Loss of greater than US$5,000, with respect to the Company, which could
result in them not being solvent.
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"MOST RECENT BALANCE SHEET" means the balance sheet contained within the Most
Recent Financial Statements.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business consistent
with past custom and practice (including with respect to quantity and
frequency).
"PERSON" means an individual, a partnership, a corporation, an association, a
joint stock company, a trust, a joint venture, limited liability company, an
unincorporated organization, or a governmental entity (or any department or
agency thereof).
"SECURITIES ACT" means the United States federal Securities Act of 1933, as
amended.
"SECURITIES EXCHANGE ACT" means the United States federal Securities Exchange
Act of 1934, as amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance, charge, or
other security interest, other than (a) mechanic's, materialmen's, and similar
liens, (b) liens for Texas not yet due and payable, (c) purchase money liens
and liens securing rental payments under capital lease arrangements, and (d)
other liens arising in the Ordinary Course of Business and not incurred in
connection with the borrowing of money.
"SUBSIDIARY" means any corporation with respect to which a specified Person (or
a Subsidiary thereof) owns a majority of the common stock or has the power to
vote or direct the voting of sufficient securities to elect a majority of the
directors.
"SOUTH AFRICA GAAP" means South Africa generally accepted accounting principles
as in effect from time to time.
"COMPANY" means Syscon (Proprietary) Limited, a company duly organized and
existing under the laws of South Africa, with its principal office in Sandown
and having the corporate identity number ("Registration Number") 84/05463/07.
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"COMPANY SHARE" means any of the shares of the Capital Stock of the
Company, each having a par value of R1,00.
"TAX" means any state, regional, local, or foreign tax, Value Added
Tax, Regional Service Levies, Secondary Tax on Companies, donations
tax, customs duties or other taxes or levies whatsoever, social
security fees or similar fees or taxes, including any interest,
penalty, or addition thereto, whether disputed or not.
"TAX RETURN" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
2. PURCHASE AND SALE OF COMPANY SHARES
2.1. Basic Transaction. On and subject to the terms and conditions of this
Agreement, the Buyer agrees to purchase from the Seller, and the
Seller agrees to sell to the Buyer, the entire issued share capital of
the company ("COMPANY SHARES") for the consideration specified below
in this Article 2 (the "PURCHASE").
2.2. Consideration. The Buyer agrees to deliver to the Seller at the
Closing as consideration for the Company Shares an amount of
R400,000,00 in cash (the "PURCHASE CONSIDERATION").
2.3. The Closing. The closing of the transactions contemplated by this
Agreement (the "CLOSING") took place at the offices of Edward,
Nathan, & Xxxxxxxxx Inc., at 4th Floor, The Forum, 0 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx, 0000 on 26 February 1998 (the "CLOSING DATE").
2.4. Deliveries at the Closing. At the Closing the Seller delivered to
the Buyer stock certificates representing all of her Company Shares,
endorsed in blank and the share ledger of the Company and the Buyer
delivered to the Seller the consideration specified in Section 2.1
above.
2.5. Escrow Deposit. At the Closing, from the Purchase Consideration
otherwise payable pursuant to this Article 2, Buyer deposited the
Escrow
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Amount into an escrow account pursuant to an escrow agreement(the
"ESCROW AGREEMENT").
2.6. Upon the satisfaction of all conditions and deliveries of the Closing
all rights and benefits of the Company shares shall be vested in NAI.
3. WARRANTIES CONCERNING THE TRANSACTION
3.1. Warranties of the Seller. The Seller warrants to the Buyer that the
statements contained in this Section 3 are correct and complete as of
the date of this Agreement and were correct and complete as of the
Closing Date with respect to herself.
3.1.1. Authorization of Transaction. The Seller has full authority to
execute this Agreement and to perform her obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the
Seller. The seller need not give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government
or governmental agency in order to consummate the transactions
contemplated by this Agreement.
Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (A) violate any statute, act, regulation, order or other
restriction of any government or court to which any Seller is subject
or (B) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right
to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other
arrangement to which any Seller is a party or by which he is bound or
to which any of his assets is subject.
3.1.2. Shares. Seller holds of record and owns beneficially 100% (one
hundred percent) of Company Shares, free of any restrictions on
transfer, Taxes, Security Interests, options, warrants, purchase
rights, contracts, and demands. The Seller is not a party to any
contract or commitment that could require any Seller to sell,
transfer, or otherwise dispose of any capital stock of the Company
(other than this Agreement). The Seller is not a party to any voting
trust, proxy or other agreement or
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understanding with respect to the voting of any capital stock of the
Company.
3.1.3. Warranties of the Buyer and NAI. Each of the Buyer and NAI jointly
and severally warrants to the Seller that the statements contained in
this Section 3 are correct and complete as of the date of this
Agreement and were correct and complete as of the Closing Date.
3.1.4. Organization of the Buyer and NAI. The Buyer and NAI are corporations
duly organized, validly existing, and in good standing under the laws
of the jurisdiction of their incorporation.
3.1.5. Authorization of Transaction. This Buyer and NAI have full authority
(including full corporate authority) to execute and deliver this
Agreement and to perform their obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of the Buyer and
NAI. The Buyer or NAI need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the
transactions contemplated by this Agreement, other than filings
required pursuant to the Securities Act and Securities Exchange Act.
3.1.6. Noncontravention. Neither the execution of this Agreement, nor the
consummation of the transactions contemplated hereby, will violate
any constitution, stature, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer or NAI are subject
or any provision of their charter or bylaws.
4. WARRANTIES CONCERNING THE COMPANY
4.1. The Seller warrants to the Buyer that the statements contained in this
Article 4 are correct and complete as of the date of this Agreement
and were correct and complete as of the Closing Date, namely -
4.1.1. the Company will be regularly incorporated as a private
company with limited liability according to the laws of the
Republic of South Africa;
4.1.2. the Seller will be entitled and able to give free and
unencumbered title of the Company Shares to the Buyer;
4.1.3. no person will have any right (including any option or right
of first refusal) to acquire any of the Company Shares or to
subscribe for, take up or acquire any of the unissued shares
in the capital of the Company, present or future;
4.1.4. the Seller will be the sole registered and beneficial owner
of the Company Shares and will be reflected in the register
of members of the Company as the sole owner thereof;
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4.1.5 true and full copies of all the material contracts of the Company have
been furnished by the Seller to the Buyer in the course of the due
diligence investigation conducted by the Buyer and correctly reflect
any amendments which have been agreed to in respect thereof and will
be of full force and effect according to their terms and the Company
will have complied in all respects with its obligations under all such
contracts;
4.1.6. the Company's books and records will have been properly maintained
according to law and will accurately reflect, in accordance with
generally accepted and sound accounting principles and standards, all
of the transactions entered into by the Company or to which it is a
party;
4.1.7. the Company will have complied with all legislation, enactments,
proclamations, ordinances, by-laws and regulations which affect it
and, in particular, it will have complied with all the provisions of
the legislation affecting, regulating or providing for income or other
tax or duties and the employment of labour and also the provisions of
the South African Companies Act, 1973;
4.1.8. save as is disclosed in the Financial Statements, neither the Company
nor the assets of the Company will be subject to any hire purchase
agreement, lease, pledge, mortgage, lien, notarial bond, hire purchase
agreement, agreement which entails a future commitment for the
company, encumbrance or the like;
4.1.9. the Company will have no liabilities, whether contingently or
otherwise, and whether as surety, co-principal debtor, guarantor or
indemnitor, other than those disclosed in the Financial Statements;
4.1.10. the Company is not engaged in any litigation, income tax appeals,
arbitration or criminal proceedings (other than proceedings for the
collection of debts from trade debtors in the ordinary course of
business) nor is the Seller aware of any facts, matters or
circumstances which may give rise to any such litigation, income tax
appeals, arbitration or criminal proceedings;
4.1.11. all amounts owing by the Company in respect of income tax for periods
ended before the effective date and all amounts of income tax for
which the Company is or will become liable in respect of its income up
to that date will have been paid or are fully provided for in the
Financial Statements;
4.1.12. the Financial Statements fairly present the state of affairs of the
Company and its business as at 31 December 1997 and the results of the
Company for the period ended on that date
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and were prepared in accordance with generally accepted and sound
accounting principles and the provisions of the South African
Companies Act, 1973 and any other relevant legislation and the
same accounting methods and bases as were hitherto used in the
preparation of the audited annual Financial Statements of the
Company were employed in preparing the Financial Statements;
4.1.13. the Seller has disclosed to the Purchaser all facts and
circumstances material to this transaction and which would be
material or would be reasonably likely to be material to a
purchaser of the Company shares and the purchase price payable in
respect thereof.
5. PRE-CLOSING COVENANTS
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing Date namely -
5.1. General. Each of the Parties will use his or its best good faith efforts
to take all action and to do all things necessary in order to consummate
and make effective the transactions contemplated by this Agreement and
documents ancillary thereto.
5.2. Notices and Consents. The Seller will cause the Company to give any
notices to third parties, and will cause the Company to use its best
efforts to obtain any third party consents, that the Buyer may request.
5.3. Operation of Business. The Seller will not cause or permit the Company to
engage in any practice, take any action, or enter into any transaction
outside the Ordinary Course of Business. Without limiting the generality
of the foregoing, the Seller will not cause or permit any of the Company
to (i) declare, set aside, or pay any dividend or make any distribution
with respect to its capital stock or redeem or otherwise acquire any of
its capital stock, (ii) take any action that would unreasonably jeopardize
the treatment of the transactions contemplated hereby as a pooling of
interests.
5.4. Preservation of Business. The Seller will cause the Company to keep its
business and properties substantially intact, including its present
operations, physical facilities, working conditions, and relationships
with lessors, licensors, suppliers, customers, and employees.
5.5. Full Access. Subject to applicable confidentiality undertakings by the
Buyer, the Seller will permit, and the Seller will cause the Company to
permit, representatives of the Buyer to have full access at all reasonable
times, and in a manner so as not to interfere with the normal business
operations of the Company, to all premises, properties, personnel, books,
records (including Tax records), contracts, and documents of or pertaining
to the Company.
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5.6. Notice to Developments. The Seller will give prompt written notice to
the Buyer of any adverse development causing a breach of any of the
representations and warranties in Article 3 above. Each Party will give
prompt written notice to the others of any adverse development causing
a breach of any of his or its own representations and warranties in
Article 3 above. No disclosure by any Party pursuant to this Section
5.6., however, shall be deemed to amend or supplement or to prevent or
cure any misrepresentation, breach of warranty, or breach of covenant.
5.7. Exclusivity. Until the fulfillment of the condition precedent or
termination of this Agreement in accordance with its terms, none of the
Seller will (and the Seller will not cause or permit the Company to)
(i) solicit, initiate, or encourage the submission of any offer from
any Person relating to the acquisition of any capital stock or other
voting securities, or any substantial portion of the assets, of the
Company or (ii) participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt
by any Person to do or seek any of the foregoing. The Seller will not
vote her Company Shares in favor of any such acquisition. The Seller
will notify the Buyer immediately if any Person makes any proposal,
offer, inquiry, or contact with respect to any of the foregoing.
6. POST-CLOSING COVENANTS
The Parties agree as follows with respect to the period following the
Closing Date.
6.1. General. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement each
of the Parties will take such further action (including the execution
and delivery of such further instruments and documents) as any other
Party reasonably may request, all at the sole cost and expense of the
requesting party (unless the requesting Party is entitled to
indemnification therefor under Article 7 below). The Seller acknowledge
and agree that from and after the Closing the Buyer will be entitled
to possession of all documents, books, records (including Tax records),
agreements, and financial data of any sort relating to the Company and
its Subsidiary.
6.2. Litigation Support. In the event and for so long as any party actively
is contesting or defending against any claim or legal action in
connection with (i) any transaction contemplated under this Agreement
or (ii) any event (or failure to act) on or prior to the Closing Date
involving the Company, each of the other Parties will cooperate with
him or it and his or its counsel in the contest or defence, make
available their personnel, and provide such testimony and access to
their books and records as shall be necessary in connection with the
contest or defence, all at the sole cost and expense of the contesting
or defending Party (unless the contesting or defending Party is
entitled to indemnification therefor under Article B below).
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6.3. Transition. The Seller will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor,
customer, supplier, or other business associate of any of the Company
from maintaining the same business relationships with the Company after
the Closing as it maintained with the Company prior to the Closing. The
Seller will refer all customer inquiries relating to the businesses of
the Company to the Buyer from and after the Closing.
7. REMEDIES FOR BREACHES OF THIS AGREEMENT
7.1. Provisions for Benefit of the Buyer. Subject to the following
provisions of this Article, the Seller shall be liable and shall
indemnify and hold the Buyer harmless from and against all Losses
arising out of misrepresentation, breach of warranty or failure to
perform a covenant or any other breach of this Agreement on the part of
the Seller, provided that the liability of the seller in respect of all
losses of the Buyer so arising or so sustained shall under no
circumstances exceed the amount of the Purchase Price and the Buyer's
claim against the Seller shall accordingly be limited to the Purchase
Price.
7.2. Compensation for Losses. Compensation for Losses shall be first paid
out of the Escrow Fund as more specifically provided for in the Escrow
Agreement, and shall at the discretion of the Buyer be paid to the
Buyer, the Company insofar as the Company is affected by the
misrepresentation, breach of warranty or covenant. Without prejudice to
any right granted to the parties herein, compensation for Losses, as
defined, shall be considered a reduction of the Purchase Price.
7.3. Notification. in the event that the Buyer shall demand indemnification
hereunder, the Buyer shall notify the Seller without undue delay, but
the Buyer's failure to do so shall in no event preclude the Buyer from
receiving indemnification from the Seller hereunder.
7.4. Other Indemnification Provisions. Seller will make no claim for
indemnification against the Company by reason of the fact that he was a
director, officer, employee, or agent of any such entity or was serving
at the request of any such entity as a partner, director, employee, or
agent of another entity with respect to any action, suit, proceeding,
complaint, claim, or demand brought by the Buyer against such Seller
(whether such action, suit, proceeding, complaint, claim, or demand is
pursuant to this Agreement, applicable law, or otherwise).
8. TAX MATTERS
The following provisions shall govern the allocation of responsibility as
between Buyer and Seller for certain tax matters following the Closing Date:
8.1. Cooperation on Tax Matters. Buyer and Seller shall cooperate fully, as
and to the extent reasonably requested by the other party, in
connection with the filing of Tax Returns and any audit, litigation or
other proceeding
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with respect to Taxes. Such cooperation shall include the retention
and (upon the other party's request) the provision of records and
information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on
a mutually convenient basis to provide additional information and
explanation of any material provided hereunder.
Buyer and Seller shall further, upon request, provide the other party
with all information that either party may be required to report.
8.2 Certain Taxes. All transfer, documentary, sales, use, stamp,
registration and other such Taxes and fees (including any penalties
and interest) incurred in connection with this Agreement shall be paid
by Buyer when due, and Buyer will, at its own expense, file all
necessary Tax Returns and other documentation with respect to all such
transfer, documentary, sales, use, stamp, registration and other Taxes
and fees.
9. BREACH
If any party breaches any material provision or term of this
Agreement (other than those which contain their own remedies or limit the
remedies in the event of a breach thereof) and fails to remedy such breach
within 14 (fourteen) days of receipt of written notice requiring it to do
so (or if it is not reasonably possible to remedy the breach within 14
(fourteen) days, within such further period as may be reasonable in the
circumstances), then the aggrieved party shall be entitled without notice,
in addition to any other remedy available to it at law or under this
agreement, including obtaining an interdict, to cancel this agreement or to
claim specific performance of any obligation whether or not the due date
for performance has arrived, in either event without prejudice to the
aggrieved party's right to claim damages.
10. MISCELLANEOUS
10.1 Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject
matter of this Agreement prior to the Closing without the prior
written approval of the Buyer and the Seller; provided, however, that
any Party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the
disclosing Party will use its best efforts to advise the other Parties
prior to making the disclosure).
10.2 Entire Agreement. This agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by
or among the Parties, written or oral, to the extent they related in
any way to the subject matter hereof.
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10.3. Succession and Assignment's Parties in Interest. This
Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and permitted
assigns. No Party may assign either this Agreement or any of
his or its rights, interests, or obligations hereunder
without the prior written approval of the Buyer and the
Seller; provided, however, that the Buyer may (i) assign any
or all of its rights and interests hereunder to one or more
of its Affiliates and (ii) designate one or more of its
Affiliates to perform its obligations hereunder (in any or
all of which cases the Buyer nonetheless shall remain
responsible for the performance of all of its obligations
hereunder). Nothing in this Agreement, express or implied,
is intended to or shall confer upon any Person any right,
benefit or remedy under or by reason of this Agreement.
10.4. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder
shall be deemed duly given if (and then two business days
after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the
intended recipient as set forth below:
If to the Seller:
Xxxxxx Xxxxx Xxxxx
00 Xxxxxxxxx Xxxxxxxx, Xxxxxxxx
Xxxxxxx, Xxxxx Xxxxxx
Telephone: x00 00 0000000
Telecopier: x00 00 0000000
With a Copy to:
Workmans
Attention: Xxxxxxx Xxxxxx
Telephone: x00 00 000 0000
Telecopier: x00 00 000 0000
If to the Buyer or NAI:
Network Associates, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a Copy to:
Xxxxxx Xxxxxx & Xxxxxxxxx, Inc.
X.X. Xxx 000000
Xxxxxxx 0000
The Forum: 0xx Xxxxx
0 Xxxxx Xxxxxx
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Sandown, Sandton 2196
Attention: Xxxxxxx Xxxx
Telephone: + 00-00-000-0000
Telecopier: + 27-11-269-7600
Any Party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at
the address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner
herein set forth.
10.5. Amendments and Waivers. No amendment of any provision of
this Agreement is valid unless it is in writing and signed
by the Buyer and the Seller. No waiver by any Party of any
default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
10.6. Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any
other situation or in any other jurisdiction.
10.7. Expenses. Each of the Parties and the Company, will bear his
or her or its own costs and expenses (including legal fees,
accounting costs and expenses) incurred in connection with
this Agreement and the transactions contemplated hereby,
except that any expenses incurred for the use of the Seller'
professional advisers at the request of Buyer shall be
reimbursed to Seller by Buyer. The Seller agrees that the
Company has not borne or will not bear any of the Seller'
costs and expenses (including any of their legal fees and
expenses) in connection with this Agreement or any of the
transactions contemplated hereby.
10.8. Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises,
the principle of interpretation "contra stipulatorem" shall
not apply. Any reference to any national, provincial,
federal, regional, state, local, or foreign statute or law
shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires
otherwise. The word "including" shall mean including without
limitation. The Parties intend that each representation,
warranty, and covenant contained herein shall have
independent significance. If any Party has breached any
warranty, or covenant contained herein in any
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respect, the fact that there exists another warranty, or covenant
relating to the same subject matter (regardless of the relative levels
of specificity) which the Party has not breached shall not detract
from or mitigate the fact that the Party is in breach of the first
warranty, or covenant.
11. MISCELLANEOUS
11.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of South Africa.
11.2 Arbitration.
11.2.1 Save in respect of those provisions of the Agreement which
provide for their own remedies which would be incompatible
with arbitration, a dispute which arises in regard to -
(a) the interpretation of; or
(b) the carrying into effect of; or
(c) any of the parties' rights and obligations arising from;
or
(d) the termination or purported termination of or arising
from the termination of; or
(e) the rectification or proposed rectification of,
this Agreement, or out of or pursuant to this Agreement
shall be submitted to and decided by arbitration.
11.2.2 That arbitration shall be held at Johannesburg with only the
parties and their legal representatives present thereat.
11.2.3 It is the intention of the parties that the arbitration shall,
where possible, be held and concluded in 21 (twenty one)
working days after it has been demanded. The parties shall use
their best endeavours to procure the expeditions completion of
the arbitration.
11.2.4 The arbitration shall be subject to the arbitration
legislation for the time being in force in South Africa.
11.2.5 The arbitrator shall be an impartial practising attorney of
not less than 10 (ten) years standing appointed by the parties
or, failing agreement by the parties within 3 (three) days
after the arbitration as been demanded, at the request of
either of the parties shall be nominated by the President for
the time being of the Law Society of the Transvaal for its
successor in Gautengl. If that person falls or refuses to
make the nomination, either party may approach the High Court
of South Africa to make such
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an appointment. To the extent necessary, the court is
expressly empowered to do so.
11.2.6. The parties shall keep the evidence in the arbitration
proceedings and any order made by any arbitrator
confidential.
11.2.7. The arbitrator shall be obliged to give his award in
writing fully supported by reasons.
11.2.8. The provisions of this clause are severable from the rest
of this Agreement and shall remain in effect even if this
Agreement is terminated for any reason.
11.2.9. The arbitrator shall have the power to give default
judgment if any party fails to make submissions on due
date and/or fails to appear at the arbitration.
11.3 Confidentiality and Publicity
Any information obtained by any party to this Agreement in terms of or
arising from or pursuant to the implementation of this Agreement shall
be treated as confidential by the parties and shall not be divulged or
permitted to be divulged to any person not being a party to this
Agreement, without the prior written consent of the other parties,
save that --
11.3.1. any information which is required to be furnished by law or
by existing contract or by any stock exchange on which the
shares of any party to this Agreement are listed may be so
furnished;
11.3.2. any party shall be entitled (after consultation with the
other parties so as to avoid embarrassment or prejudice to
the extent possible) to make such information available to
its shareholders as may be necessary to enable such
shareholders to consider the value and prospects of their
shareholdings;
11.3.3. no party shall be precluded from divulging any information
to any person who is negotiating with such party for the
acquisition of an interest in such party, provided that the
person to whom any disclosure is made in the aforesaid
circumstances shall first have undertaken in writing not to
divulge such information to any other person and to use it
only for the purpose of evaluating the business;
11.3.4. no party shall be precluded from using or divulging such
information in order to pursue any legal remedy available to
it.
11.4 Release from guarantees
The Buyer shall use its best endeavours to procure the release of the
Seller from any liability which the Seller may have beyond the Closing
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Date under those guarantees, suretyships or indemnities which have
been given by the Seller, if any, for the Company's obligations.
11.5. Jurisdiction
The parties hereby consent to the exclusive jurisdiction
of the High Court of the Republic of South Africa (Witwatersrand Local
Division) in respect of any action arising from or out of or pursuant
to this Agreement and the undertakings given herein.
The Parties have executed this Agreement on as of the date first above written.
FSA Combination Corp.
DMESSERSCHMIDT
By: /s/ Xxxxx Xxxxxxx Xxxxxxxxxxxxx
-----------------------------------
Its: Legal Adviser (Under Power of
-----------------------------------
Attorney)
Network Associates, Inc.
DMESSERSCHMIDT
By: /s/ Xxxxx Xxxxxxx Xxxxxxxxxxxxx
-----------------------------------
Its: Legal Adviser (Under Power of
-----------------------------------
Attorney)
Seller
/s/ X X Xxxxx
-----------------------
Xxxxxx Xxxxx Xxxxx
