EXHIBIT 10.4
EXECUTION COPY
SALE OF SHARES AGREEMENT
BETWEEN
PYRAMID FREIGHT (PROPRIETARY) LIMITED
(a company with limited liability registered and incorporated in the British
Virgin Islands and registered as an external company in accordance with the laws
of the Republic of South Africa under registration number 1987/003687/10)
("THE SELLER")
and
THE TRUSTEES FOR THE TIME BEING OF THE UTi EMPOWERMENT TRUST, IN THEIR CAPACITY
AS SUCH
(a trust registered in the Republic of South Africa under Master's
reference number IT6457/04)
("THE PURCHASER")
IN RESPECT OF
UTi SOUTH AFRICA (PROPRIETARY) LIMITED
(a private company with limited liability registered and incorporated in
accordance with the laws of the Republic of South Africa under registration
number: 2004/015747/07)
("THE COMPANY")
[LT LOGO]
2.
TABLE OF CONTENTS
PAGE
1. INTRODUCTION.............................................................................. 3
2. THE SALE.................................................................................. 3
3. PURCHASE PRICE AND METHOD OF PAYMENT...................................................... 3
4. RISK..................................................................................... 3
5. DELIVERY.................................................................................. 3
6. WARRANTIES................................................................................ 4
7. BREACH.................................................................................... 4
8. CONFIDENTIALITY........................................................................... 4
9. MISCELLANEOUS MATTERS..................................................................... 5
9.1 ADDRESSES AND NOTICES..................................................................... 5
9.2 ENTIRE CONTRACT........................................................................... 6
9.3 VARIATION, CANCELLATION AND WAIVER........................................................ 6
9.4 INDULGENCES............................................................................... 6
9.5 CESSION................................................................................... 7
9.6 JURISDICTION.............................................................................. 7
9.7 APPLICABLE LAW............................................................................ 7
9.8 COSTS..................................................................................... 7
9.9 SEVERANCE................................................................................. 7
9.10 COUNTERPARTS.............................................................................. 7
3.
1. INTRODUCTION
1.1 The Seller is the registered and beneficial owner of 100 ordinary
shares with a par value of R1.00 each comprising the entire issued
share capital of the Company.
1.2 The Seller wishes to sell, and the Purchaser wishes to purchase 25
ordinary shares with a par value of R1.00 each comprising 25% of the
entire issued share capital of the Company ("THE SALE shares"), on the
terms and conditions set out below.
2. THE SALE
On and with effect from 1 August 2004 ("THE EFFECTIVE DATE"), the Seller
sells and the Purchaser purchases the sale shares.
3. PURCHASE PRICE AND METHOD OF PAYMENT
3.1 The total purchase price for the sale shares is X00 ("XXX PURCHASE
PRICE"), which shall be paid by the Purchaser to the Seller in cash, on
the date of signature of this agreement by the party signing last in
time ("THE COMPLETION DATE").
3.2 Payment of the purchase price shall be made by direct bank transfer to
the bank account in South Africa notified by the Seller to the
Purchaser in writing at least one day before the completion date, free
of set-off, deduction or counterclaim.
4. RISK
The risk in, and benefit of the sale shares shall be deemed to have passed
from the Seller to the Purchaser on the effective date.
5. DELIVERY
5.1 On the completion date a representative of the Seller and a
representative of the Purchaser shall meet at the offices of the Seller
in order to complete the transaction in the manner set out below.
4.
5.2 On the completion date the Seller shall deliver or make available to the
Purchaser -
5.2.1 the share certificate(s) in respect of the sale shares, accompanied
by a share transfer form(s) signed and dated that date by the
Seller; and
5.2.2 certified copies of such shareholder's and/or directors'
resolutions, and such other documents, as may be necessary to
sanction the sale and transfer of the sale shares.
6. WARRANTIES
The Seller gives no warranties of any nature to the Purchaser in respect of
the sale shares, which are sold voetstoots.
7. BREACH
7.1 If a party commits a breach of the provisions of this agreement and
fails to remedy that breach within 14 days after receipt of written
notice from the other party requiring it to do so, the other party will
be entitled to enforce all such rights as that party may have at common
law in respect of the breach.
7.2 Notwithstanding the provisions of clause 7.1, if any breach is one
which is not reasonably capable of being remedied within the period of
14 days, the party in default shall be allowed such additional period
as is reasonably required to enable it to do so.
8. CONFIDENTIALITY
8.1 The parties to this agreement acknowledge that they wish to retain
strict confidentiality regarding the contents of this agreement.
8.2 Each party therefore undertakes to the other party to treat all
negotiations, the content and subject of this agreement, and any other
matters relating to this agreement, in strict confidence and not to
disclose any provisions of this agreement to any third party or make
any public announcements regarding this agreement without the prior
written consent of the other party, except where it is necessary to do
so:
8.2.1 to enforce the provisions of this agreement;
5.
8.2.2 to comply with statutory obligations or with the requirements of a
competent government authority or registered stock exchange.
8.3 The obligation to maintain confidentiality shall not apply to
information which was in the public domain prior to its disclosure by a
party to this agreement.
9. MISCELLANEOUS MATTERS
9.1 ADDRESSES AND NOTICES
9.1.1 For the purposes of this agreement, including the giving of notices
and the serving of legal process, the parties choose domicilium
citandi et executandi ("DOMICILIUM") at -
9.1.1.1 in the case of the Seller :
9.1.1.2 address : 0 Xxxxxx Xxxx (xxx Xxxxx Xxxx
Xxxx)
Xxxxxxxxxxx
0000
telefax no : 011 457 2606
marked for the attention of: Xx Xxxxx Xxxxxxx;
9.1.1.3 in the case of the Purchaser:
address : 0 Xxxxxx Xxxx (xxx Xxxxx Xxxx
Xxxx)
Xxxxxxxxxxx
0000
telefax no : 011 457 2606
marked for the attention of: The Trustees for the time being
of the UTi Empowerment Trust.
9.1.2 A party may at any time change that party's domicilium by notice in
writing to another address, provided that the new domicilium
consists of, or includes, a physical address at which process can
be served.
9.1.3 Any notice given in connection with this agreement shall -
6.
9.1.3.1 be delivered by hand; or
9.1.3.2 be sent by prepaid registered post; or
9.1.3.3 be sent by telefax (if the domicilium includes a telefax number)
to the domicilium chosen by the party concerned.
9.1.4 A notice given as set out above shall be deemed to have been duly
given -
9.1.4.1 if delivered, on the date of delivery; or
9.1.4.2 if sent by post, 14 days after posting; or
9.1.4.3 if sent by telefax, on the business day that the telefax is
transmitted, except that any telefax transmitted after 16h30 shall
be deemed to have been received on the following business day.
9.2 ENTIRE CONTRACT
This agreement constitutes the entire contract between the parties with
regard to the matters dealt with in this agreement and no
representation, terms, conditions or warranties not contained in this
agreement shall be binding on the parties.
9.3 VARIATION, CANCELLATION AND WAIVER
No agreement varying, adding to, deleting from or cancelling this
agreement, shall be effective unless reduced to writing and signed by
or on behalf of the parties.
9.4 INDULGENCES
No indulgence granted by a party shall constitute a waiver of any of
that party's rights under this agreement; accordingly, that party shall
not be precluded, as a consequence of having granted such indulgence,
from exercising any rights against the other party which may have
arisen in the past or which may arise in the future.
7.
9.5 CESSION
A party may not cede that party's rights or delegate that party's
obligations under this agreement without the prior written consent of
the other party.
9.6 JURISDICTION
The parties submit to the non-exclusive jurisdiction of the High Court
of South Africa (Transvaal Provincial Division) in respect of any
matter arising from or in connection with this agreement, its
implementation or termination.
9.7 APPLICABLE LAW
This agreement shall be interpreted and implemented in accordance with
the laws of the Republic of South Africa.
9.8 COSTS
9.8.1 The Seller shall be liable for the legal costs of and incidental to the
negotiation, preparation and implementation of this agreement including
all attendances and the payment of stamp duty on the transfer of the
shares.
9.8.2 A party in breach shall be liable for any costs, including attorney and
client costs and collection commission, incurred by the other party
arising out of or in connection with any breach by the defaulting party
of any of the provisions of this agreement.
9.9 SEVERANCE
If any provision or warranty contained in this agreement is rendered void,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions or warranties shall not in any
way be affected or impaired.
9.10 COUNTERPARTS
This agreement may be executed in any number of counterparts by the parties
to this agreement and once each party to this agreement has signed a
counterpart, each such counterpart shall be considered an original and all
8.
such counterparts shall constitute one and the same instrument. Any such
counterpart may be a facsimile transmission copy thereof.
Signed at Bedfordview on 6, December 2004.
WITNESS FOR AND ON BEHALF OF PYRAMID FREIGHT
(PROPRIETARY) LIMITED, DULY AUTHORISED
THERETO
/s/ Xxxxxx XxXxxx /s/ Xxxxxxx X. Xxxxxxx
............................. ...........................................
Signed at Illovo on 6, December 2004.
WITNESS THE TRUSTEES FOR THE TIME BEING OF THE UTi
EMPOWERMENT TRUST, DULY AUTHORISED
/s/ Xxxxx Xxxxxx /s/ Mangiliso Mpshali
............................. ............................................
