Exhibit 2.10
AGREEMENT
between
TOP COPY CC
and
XXXXXXXXXX.XXX
INCORPORATED
[letterhead of Fairbridge Ardene & Xxxxxx Inc.]
Page 1
INDEX
Clause Number and Description Page No.
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1. INTERPRETATIONS AND DEFINITIONS.......................................2
2. RECORDAL..............................................................4
3. REINSTATEMENT OF SALE OF BUSINESS AGREEMENT...........................4
4. INTEREST ON PURCHASE PRICE............................................5
5. CHANGE OF EFFECTIVE DATE AND IMPLEMENTATION DATE......................5
6. AMENDMENT OF CLAUSE 2.1 OF SALE OF BUSINESS AGREEMENT.................5
7. BREACH................................................................5
8. RIGHT OF NOMINATION...................................................6
9. COUNTERPARTS..........................................................7
10. GENERAL...............................................................7
11. COSTS.................................................................8
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Page 2
AGREEMENT
between
TOP COPY CC
and
XXXXXXXXXX.XXX INC.
THE PARTIES HEREBY AGREE:
1. INTERPRETATIONS AND DEFINITIONS
1.1 The headnotes to the clauses of this agreement are inserted for
reference purposes only and shall in no way govern or affect the
interpretation hereof.
1.2 Unless inconsistent with the context, any expression herein contained,
including any expression and any definition thereof in clause 1.3,
which denotes:
1.2.1 any gender, includes the other genders;
1.2.2 a natural person, includes an artificial person and vice
versa;
1.2.3 the singular, includes the plural and vice versa.
1.3 Unless inconsistent with the context, the expressions set forth below
shall bear the following meanings:
"Agreement" the agreement concluded
between the Parties as
recorded in this document;
"Business" the subject matter of the Sale
of Business Agreement;
"Effective Date" the effective date as
defined in the Sale of
Business Agreement;
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"Implementation Date" the implementation date as
defined in the Sale of
Business Agreement;
"Parties" the Seller and the Purchaser
collectively;
"Purchase Price" the purchase price of the
Business as set out in clause
4 of the Sale of Business
Agreement;
"Purchaser" Xxxxxxxxxx.Xxx Inc., a
corporation with limited
liability incorporated in
terms of the laws of the State
of Tennessee, United States of
America with registered office
at 000 Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxx;
"Sale of Business Agreement" the agreement entered into by
and between the Parties for
the sale of the business
conducted under the name of
"Top Copy", by the Seller to
the Purchaser signed by the
Seller on 18 May 1999 in Cape
Town and signed by Purchaser
on 20 May 1999 in Madison,
Tennessee, as amended by the
First Amendment to the
Agreement concluded on 29 June
1999 and the Second Amendment
to the Agreement concluded on
25 September 1999, as annexed
hereto marked "A";
"Seller" Topy Copy CC, a close
corporation duly incorporated
in terms of the Close
Corporation Act of South
Africa with registration
number CK 88/04604/23;
"Signature Date" the date on which this
Agreement is signed by the
last signing of the Parties
hereto.
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1.4 If any provision in a definition is a substantive provision conferring
rights or imposing obligations on either Party then, notwithstanding
that such provision appears only in a definition clause, effect shall
be given thereto as if it were a substantive provision in the body of
this Agreement.
1.5 All provisions contained in the Annexures hereto shall be deemed to be
incorporated in, and to form part of, this Agreement as fully and
effectually as if specifically incorporated herein and each expression
defined In this Agreement shall have the same meaning where used in
any of the Annexures.
2. RECORDAL
2.1 The Purchaser and the Seller agreed to enter into the First Amendment
to the Agreement which was concluded on 29 June 1999 to extend the
deadline for the fulfillment of the condition precedent contained in
clause 2.1 of the Sale of Business Agreement from 30 June 1999 to 9
July 1999. Subsequently, the Seller and the Purchasers entered into
the Second Amendment to the Agreement to change the Implementation
Date and Effective Date from 25 August 1999 to 25 September 1999.
2.2 Notwithstanding the above, the Sale of Business Agreement has lapsed
due to the non-fulfillment of the condition precedent contained in
clause 2.3 of the Sale of Business Agreement. The Parties are,
however, desirous of reinstating the Sale of Business Agreement
subject to the terms of this Agreement which serve to amend the Sale
of Business Agreement.
2.3 The Purchaser has requested that the Effective Date and Implementation
Date be amended to reflect 19 November as the new Effective Date and
Implementation Date.
3. REINSTATEMENT OF SALE OF BUSINESS AGREEMENT
The Parties agree that the Sale of Business Agreement is hereby
reinstated with full force and effect from the Signature Date save
that, and subject to, the terms of this
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Agreement which hereby amend, where applicable, the Sale of Business
Agreement.
4. INTEREST ON PURCHASE PRICE
The Parties hereby agree that interest shall be payable on the full amount
of the Purchase Price at a rate of 6.5% (six and a half per centum) per
annum, calculated daily, from 25 August 1999 to the date of payment of the
full amount of the Purchase Price, and such interest shall be paid together
with the Purchase Price.
5. CHANGE OF EFFECTIVE DATE AND IMPLEMENTATION DATE
The Parties hereby amend the Agreement as follows:
5.1 The definition of "effective date" in clause 1.2.5 is amended to read
"means the close of business on 19 November 1999".
5.2 The definition of "implementation date" in clause 1.2.6 is amended to
read "means close or business on 19 November 1999".
6. AMENDMENT OF CLAUSE 2.1 OF SALE OF BUSINESS AGREEMENT
It being recorded that a management agreement has been concluded between
Xxxxxxxxxx.Xxx Inc. and Xxxxxxx Xxxxxxxxxxx, the Parties hereby amend the
Sale of Business Agreement by deleting clause 2.1 and replacing it with the
following:
"2.1 This agreement is subject to the suspensive condition contained in
clause 2.3."
7. BREACH
7.1 The Parties hereby amend clause 13 of the Sale of Business Agreement
by adding a new clause 13.3 to the Sale of Business Agreement which
reads as follows:
"13.3 Notwithstanding the provisions of Causes 13.1 and 13.2, the
parties hereby agree that should the purchaser fail to pay the
full amount or the purchase price on or before the effective
date (being 19 November 1999) or fail to fulfill the condition
precedent contained in clause 2.3 of this agreement, or
otherwise breach any provision of this agreement, the seller
shall be entitled to either:
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13.3.1 cancel the agreement by written notice to the purchaser
to such effect and claim damages from the purchaser for
the loss, including consequential loss, suffered by the
seller, arising out of such breach and/or cancellation; or
8. RIGHT OF NOMINATION
It is recorded that the Parties wish to give the Purchaser a right of
nomination in terms of the Sale of Business Agreement and hereby amend the
Sale of Business Agreement by adding a new clause 21 which reads as
follows:
"21.1 The purchaser shall be entitled to nominate a company in which it is
the sole beneficial shareholder as the purchaser of the business in
terms of this agreement provided that it shall exercise such right by
way of giving to the seller notice of its nomination by no later than
30 (thirty) calendar days after the effective date wherein the
identity of its nominee shall be set out and which notice shall be
accompanied by true copies of the nomination, and of the acceptance of
its nomination by, the nominee.
Page 7
21.2 Should the purchaser exercise its right of nomination hereunder its
nominee shall, with effect from the signature date hereof, be deemed
substituted in the place of the purchaser as the purchaser of the
business under this agreement whereupon all references in this
agreement to the "purchaser" shall, unless otherwise required by the
context, be deemed to be references to such nominee and whereupon,
further, any acts performed by the purchaser prior to such deemed
substitution, shall be deemed to have been performed by such nominee.
21.3 In the event that a nominee is substituted as the purchaser as
contemplated above, the purchaser hereby binds itself as surety for
and co-principal debtor with such nominee for the performance of all
its obligations in terms of this agreement."
9. COUNTERPARTS
This Agreement may be entered into any number of counterparts and by the
Parties to it on separate counterparts, each of which when so executed and
delivered shall be an original, but all the counterparts shall together
constitute one and the same instrument.
10. GENERAL
10.1 This Agreement constitutes the entire agreement between the Parties
regarding the subject matter hereof, No agreements, guarantees or
representations, whether verbal or in writing, have been concluded,
issued or made, upon which either party is relying in concluding this
Agreement, save to the extent set out herein.
10.2 The headings appearing in this Agreement have been used for reference
purposes only and will not affect its interpretation.
10.3 No waiver, indulgence, leniency or extension of time which a party
(the "Grantor") may grant or show to the other, will in any way
prejudice the Grantor or preclude the Grantor from exercising any of
his rights in the future.
10.4 If any particular provision and/or term of this Agreement is found to
be defective or unenforceable or is cancelled for any reason (whether
by any competent Court or otherwise) then the remaining provisions
and/or term shall continue to be of full force or effect.
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10.5 Neither party hereto shall be entitled to cede or assign any of its
rights, or delegate any of its obligations hereunder without prior
written consent of the other first being obtained.
10.6 The provisions of this Agreement shall, where applicable, be binding
of the executors, administrators, trustees, curators and heirs of all
natural persons who are or become parties hereto.
11. COSTS
All costs incurred in the negotiation, drafting, conclusion and
implementation of this Agreement and previous amendments to the sale of
Business Agreement shall be borne by the Seller.
SIGNED on behalf of Topy Copy CC at CAPETOWN on the 8th of October 1999 in the
presence of the undersigned witnesses:
AS WITNESSES:
1. /s/ ILLEGIBLE for: Top Copy CC
--------------------------------
2. /s/ ILLEGIBLE /s/ ILLEGIBLE
-------------------------------- ---------------------------------------
Member, who warrants that he is duly
authorised
SIGNED on behalf of Xxxxxxxxxx.Xxx Inc. at ___________________________ on the
___ of ________________ 19__ in the presence of the undersigned witnesses:
AS WITNESSES:
1. for: Xxxxxxxxxx.Xxx Inc.
--------------------------------
2. /s/ ILLEGIBLE /s/ ILLEGIBLE
-------------------------------- ---------------------------------------
Director, who warrants that he is duly
authorised
