EXHIBIT 10.2
SCHEDULE 2
SHAREHOLDERS AGREEMENT
between
XXXXXX XXX XXX
and
XXXXXX XXX XXX
and
XXX XXXXXXX
and
TECHNOR INTERNATIONAL INC
and
WASP INTERNATIONAL (PTY) LTD
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CONTENTS
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1 DEFINITIONS 4
2 PREAMBLE 5
3 ORGANISATION OF THE COMPANY 6
4 TERMS AND CONDITIONS OF SHAREHOLDER'S LOANS 7
5 ADDITIONAL FINANCING 8
6 SHAREHOLDERS' MEETINGS 8
7 BOARD OF DIRECTORS 9
8 DISPOSAL OR SALE OF ASSETS 10
9 ENTRENCHED PROVISIONS 11
10 PRE-EMPTIVE RIGHTS 13
11 CALL OPTIONS 15
12 ARTICLES OF ASSOCIATION 17
13 DIVIDEND POLICY 17
14 EMPLOYMENT 17
15 RESTRAINT 17
16 ARBITRATION 19
17 BREACH 19
18 NON-VARIATION 20
19 DOMICILIUM AND NOTICES 20
20 GENERAL 21
21 INTERPRETATION 22
22 GOVERNING LAW AND JURISDICTION 23
23 COSTS 23
24 COUNTERPARTS 23
SCHEDULE
The Company's Articles of Association "1"
Employment Contract - Xxxxxx Xxx Xxx "2"
Employment Contract - Xxx Xxxxxxx "0"
Page 3
1 DEFINITIONS
For the purposes of this agreement unless the context indicates
otherwise -
1.1 "Agreement" means this shareholders agreement and the schedule
hereto;
1.2 "Xxxxxx" means Xxxxxx Xxx Xxx;
1.3 "Articles" means the articles of association of the Company, from
time to time;
1.4 "Auditors" means the auditors of the Company from time to time;
1.5 "Board" means the board of directors of the Company from time to
time;
1.6 "Business Day" means any day other than a Saturday, Sunday or
public holiday in the RSA, within the meaning of the Public
Xxxxxxxx Xxx, 0000 of the RSA;
1.7 "Company" means Wasp International (Proprietary) Limited,
Registration Number 93/00271/07;
1.8 "Effective Date" means the date upon which all the parties to
this agreement have signed this Agreement or in the event of
their having signed the Agreement on different dates, the date of
the last signature;
1.9 "Xxxxxx" means Xxxxxx Xxx Xxx;
1.10 "GSM" means the global system for mobile communication as defined
in the European Telecommunications Standards Institute standards;
1.11 "Guy" means Xxx Xxxxxxx;
1.12 "Prime Rate" means the basic quoted lending rate of interest at
which the Standard Bank of South Africa Ltd lends on overdraft
from time to time, as certified by any general manager of that
bank, whose authority and appointment it shall not be necessary
to prove;
1.13 "RSA" means the Republic of South Africa, including the nine
provinces identified in section 103 of the Constitution of xxx
Xxxxxxxx xx Xxxxx Xxxxxx, 0000;
1.14 "Shareholders" means Albert, Gerritt, Guy and Technor,
collectively;
1.15 "Shareholders' Loans" means all amounts due by the Company to the
Shareholders on loan account from time to time;
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1.16 "Shareholders' Meeting" means the shareholders' meetings held in
accordance with 6;
1.17 "Shareholders' Proportion" means, in respect of any Shareholder
at any time, the proportion which the number of shares in the
Company which are beneficially owned by the Shareholder in
question at the time in question bears to the total number of
shares in the issued share capital of the Company at the time in
question;
1.18 "Share Sale Agreement"means the share sale agreement to which
this Agreement constitutes Schedule 2;
1.19 "Technor" means Technor International Inc, a corporation
registered in Nevada, United States of America with its
registered office at Xxxxxxxxxxxxxx 00, X-00000 Xxxxxxxx, Xxxxxx;
1.20 "WGT" means the GSM technologies or products owned or developed
by the Company, including but not being limited to core
technology vehicle tracking systems, terminal units,
communication processes, policy and procedures; technical
information, know-how, whether or not patented or patentable,
including, without limitation, specifications, marketing studies,
physical performance and other operational information or data
relating to any part of or improvement or new developments of the
system or part of the system developed and made available for
commercial exploitation by the Company from time to time.
2 PREAMBLE
The parties record that -
2.1 in terms of the Share Sale Agreement Technor has agreed to
purchase 25 shares of the issued share capital of the Company
subject to the terms and conditions set out in that agreement;
2.2 Technor, having exercised the first option granted to it in terms
of an option agreement entered into between it and the other
parties to this Agreement on 1 June 1998, has a second option to
acquire the remaining 75% of the total issued share capital of
the Company subject to the terms and conditions set out in that
agreement;
2.3 it is a condition of the Share Sale Agreement that this Agreement
be signed by the parties thereto and becomes unconditional; and
the Shareholders wish to regulate their relationship as shareholders in
the Company in the manner set out in this Agreement.
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3 ORGANISATION OF THE COMPANY
It is recorded that the Company is organised on the following basis -
3.1 NAME
Wasp International (Proprietary) Limited.
3.2 AUTHORISED SHARE CAPITAL
R 1000,00 divided into 1000 ordinary par value shares of R 1,00
each.
3.3 ISSUED SHARE CAPITAL
R 100,00 divided into 100 ordinary par value shares of R 1,00
each of which -
3.3.1 Xxxxxx will be the registered and beneficial holder of 25
ordinary shares par value of R 1,00 each in the issued
share capital of the Company;
3.3.2 Xxxxxxx will be the registered and beneficial holder of
25 ordinary par value shares of R 1,00 each in the issued
share capital of the Company;
3.3.3 Guy will be the registered and beneficial holder of 25
ordinary par value shares of R 1,00 each in the issued
share capital of the Company; and
3.3.4 Technor will be the registered and beneficial holder of
25 ordinary par value shares of R 1,00 each in the issued
share capital of the Company.
3.4 ARTICLES OF ASSOCIATION
As per Schedule "1" hereto.
3.5 REGISTERED OFFICE
Price Waterhouse, 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
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3.6 AUDITORS
Price Waterhouse, 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
3.7 BANKERS
Nedbank Limited, Xxxxxxx Drive, Sandown, Sandton
3.8 FINANCIAL YEAR-END
28 February
4 TERMS AND CONDITIONS OF SHAREHOLDER'S LOANS
4.1 The parties record that as at the Effective Date the Company is
indebted to the following shareholders in the following amounts :
4.1.1 Xxxxxx : R 717 793,00;
4.1.2 Xxxxxxx : R 678 936,00; and
4.1.3 Guy : R 864 013,00. .
4.1.4 The parties agree that the Shareholders shall meet from
time to time to discuss the finance required by the
Company and the methods of providing such finance. All
Shareholders Loans (including those in 4.1.1, 4.1.2 and
4.1.3) shall be governed by the following terms and
conditions -
4.1.5 all Shareholders' Loans will only be repaid by the
Company when the Board considers that the Company is in a
financial position to make such repayments;
4.1.6 subject to 4.3 no Shareholders' Loan or any part thereof
shall be repaid to any Shareholder unless a proportionate
repayment is made to the other Shareholders;
4.1.7 all Shareholders' Loans shall bear interest at the Prime
Rate calculated and payable monthly in arrear.
4.2 If the Company is wound-up (provisionally or finally) or is
placed into judicial management in terms of a provisional or
final order, then all amounts due to the Shareholders by the
Company shall immediately become due and payable.
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4.3 Subject to 4.1.1, if the Shareholders' Loans are at any time not
in the Shareholders' Proportion, then any Shareholder whose
Shareholders' Loans are in excess of its Shareholders' Proportion
shall be entitled to the repayment of such excess before the
repayment of any other Shareholders' Loans.
5 ADDITIONAL FINANCING
The parties record that it is their intention that the Company be self
financing but that if the Company requires additional finance from time
to time for the establishment, development, expansion and carrying on of
its business and if it cannot be raised from external sources, then the
Shareholders shall meet in order to decide how best to raise that
additional finance.
6 SHAREHOLDERS' MEETINGS
6.1 The parties shall convene and hold Shareholders' Meetings of the
Company on the following basis -
6.1.1 a Shareholders' Meeting shall be held at least every 6
months;
6.1.2 an annual general meeting of the Shareholders of the
Company shall be held in accordance with the provisions
of the Xxxxxxxxx Xxx, 0000;
6.1.3 at least 14 days' prior written notice of each
Shareholders' Meeting is given to all Shareholders.
6.2 Guy shall be the chairman at Shareholders' Meetings. If there is
an equality of votes on any resolution tabled at a Shareholders'
Meeting, then Guy shall have a second or casting vote at that
meeting.
6.3 There shall be no quorum at a Shareholders' Meeting unless
Shareholders holding not less than 75% of the shares in the
ordinary share capital of the Company are present in person or by
proxy.
6.4 No business shall be transacted at the Shareholders' Meeting
unless a quorum is present at the commencement of and throughout
the meeting.
6.5 All resolutions to be passed at a Shareholders' Meeting shall
acquire the approval of Shareholders holding not less than 50,1%
of the shares in the issued ordinary share capital of the Company
to be effected, but subject to the provisions of 9.
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6.6 The Shareholders shall procure that a record is made of all
decisions taken at Shareholders' Meetings and shall ensure that
such records are inserted into a minute book kept for that
purpose.
7 BOARD OF DIRECTORS
7.1 The Board of the Company shall consist of at least 4 persons.
7.2 Guy shall be the chairman of the Board and function as the
Company's chief executive officer and managing director. If there
is an equality of votes on any resolution tabled at any Board
meeting, Guy shall have a second or casting vote.
7.3 Meetings of the Board shall be held at least once every month in
accordance with the provisions of the Articles from time to time,
it being agreed by the parties that Technor's duly appointed
director shall be entitled to participate at such meetings either
in person or telephonically.
7.4 At least 7 days' prior written notice of each Board meeting shall
be given by the Company to all the directors, which notice shall
set forth any matters of a material nature to be considered or
resolved by the Board at such meeting.
7.5 For so long as :
7.5.1 Xxxxxx owns at least 5 % of the shares in the entire
issued ordinary share capital of the Company he shall be
entitled to be or to appoint a director of the Company;
7.5.2 Xxxxxxx owns at least 5 % of the shares in the entire
issued ordinary share capital of the Company he shall be
entitled to be or to appoint a director of the Company;
7.5.3 Guy owns at least 5 % of the shares in the entire issued
ordinary share capital of the Company he shall be
entitled to be or to appoint a director of the Company;
7.5.4 Technor owns at least 5 % of the shares in the entire
issued ordinary share capital of the Company it shall be
entitled to appoint a director of the Company.
7.6 Each Shareholder shall be entitled to remove and to replace any
director so appointed by it from time to time and to appoint an
alternate to such director. Any such appointments or removals
shall be made by written notice to the Company signed by the
Shareholder in question and shall be operative as soon as such
written notice is received by the Company.
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7.7 There shall be no quorum at any meetings of the Board unless
directors (or their alternates) who have been appointed by
Shareholders who hold at least 75% of the shares in the ordinary
share capital of the Company are present.
7.8 No business shall be transacted at a directors' meeting unless a
quorum is present at the commencement of and throughout that
meeting.
7.9 Each director on the Board shall have 1 vote and resolutions of
the Board shall, subject to 9, require it to be approved by a
majority of the directors of the Company (or their alternates)
present and voting in order to be of force or effect.
7.10 The Board shall ensure that a record is made of all decisions
taken at meetings of the Board and shall ensure that such records
are inserted into a minute book kept for that purpose.
8 DISPOSAL OR SALE OF ASSETS
8.1 The Board shall not, save with the approval of a general meeting
of the Company and subject to 8.2 for so long as the option
agreement referred to in 2.2 and 10.1 remains in force, have the
power to dispose of -
8.1.1 the whole or substantially the whole of the undertaking
of the Company;
8.1.2 the whole or the greater part of the assets of the
Company or
8.1.3 the WGT or any substantial part thereof.
(collectively "the Assets").
8.2 Should the Board secure the necessary approval referred to in 8.1
and desire to dispose of or receive a BONA FIDE third party offer
("the Third Party Offer") to purchase the Assets, then the Board
shall first offer the Assets to Technor for the same
consideration and on the same terms and conditions set out in the
Third Party Offer ("the Second Offer"), it being specifically
recorded by the parties hereto that any such Second Offer shall
not preclude Technor from exercising its option in terms of the
agreement referred to in 2.2 and 10.1. at any time subject to the
terms of such agreement.
8.3 The Second Offer may only be accepted within 180 days from
receipt of the Second Offer. Should the Second Offer not be
accepted by Technor, or should the Board not receive notification
of acceptance thereof within such 180 day period, then the Board
shall be entitled to sell or otherwise dispose
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of the Assets for the consideration and on the terms and
conditions set out in the Third Party Offer, provided that -
8.3.1 the sale is concluded within 60 days after the end of the
180 day period referred to in 8.3;
8.3.2 if a sale is not concluded within the 60 day period
referred to in 8.3.1, then the Assets may not be sold to
the third party in question or any other third party and
if the Board once again wishes to sell the Assets it may
only do so in accordance with the this clause 8.
9 ENTRENCHED PROVISIONS
9.1 The parties agree that, unless Shareholders holding not less than
75% of the shares in the issued share capital of the Company vote
in favour of the appropriate resolution, the Shareholders and/or
the Directors shall not -
9.1.1 amend the Articles;
9.1.2 sell, alienate or pledge all or any of the assets of the
Company or the rights belonging thereto or connected
therewith;
9.1.3 change the nature of the business of the Company or carry
on any other business which is not directly related to
the business of the Company;
9.1.4 wind-up the Company on a voluntary basis;
9.1.5 create third party debts, debentures, liens or
encumbrances;
9.1.6 mortgage, pledge or otherwise encumber the assets of the
Company;
9.1.7 change the Auditors;
9.1.8 purchase any business or asset, other than in the
ordinary, normal and regular course of the business of
the Company, or enter into any lease in terms of which
any item will be leased, otherwise than in the ordinary,
normal and regular course of the business of the Company;
9.1.9 enter into any lease of movable or immovable property
(save for that of rental of office premises) in terms of
which the total rental payable is in excess of R
10 000,00 per month;
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9.1.10 enter into, extend, renew or modify any long-term
(exceeding 6 months) contracts, other than in the normal,
ordinary and regular course of the business of the
Company and any unusual or onerous contract;
9.1.11 subscribe for or purchase shares or debentures issued by
any company or other body corporate;
9.1.12 enter into any transaction outside the normal, ordinary
and regular course of its business;
9.1.13 suspend or cease or abandon any business or part thereof
carried on by the Company;
9.1.14 furnish any suretyship or guarantees for the obligations
of any third party;
9.1.15 issue any indemnities by the Company or undertaking of
any other similar obligations;
9.1.16 institute any legal proceedings of any nature whatsoever
other than those arising in the ordinary, normal and
regular course of the business of the Company;
9.1.17 change the basis of accounting which was used by the
Company for its previous accounting periods;
9.1.18 change the financial year of the Company;
9.1.19 employ or dismiss any executive or employee of the
Company;
9.1.20 pay any bonus or increase in salary to any employee of
the Company;
9.1.21 permit any borrowings by the Company;
9.1.22 dispose of assets other than in the ordinary and regular
course of the business of the Company (subject to always
to 8.2);
9.1.23 approve of budgets of the Company from time to time and
deviations therefrom;
9.1.24 delegate any powers in respect of the matters set out in
this clause.
9.2 The Shareholders undertake not to increase or decrease or alter
the authorised or issued share capital of the Company or issue
any securities
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convertible into or exchangeable for share capital in the Company
for so long as the option agreement referred to in 10.1 remains
in force without the prior written consent of Technor
10 PRE-EMPTIVE RIGHTS
10.1 The parties record that an option agreement was signed between
them on 1 June 1998 in terms of which Technor was granted the
non-transferable and non-assignable right and option to acquire
100% of the issued share capital of the Company in two tranches
of 25% and 75% each.
10.2 Notwithstanding anything to the contrary contained in the
Articles or in this Agreement and subject always to the
provisions of the option agreement referred to in 10.1, a
Shareholder ("the Offeror") shall not be entitled to sell,
alienate or in any other manner dispose of or transfer any share
in the Company unless-
10.2.1 all the shares ("the Offer Shares") beneficially owned by
the Offeror in the Company; and
10.2.2 all the Offeror's ordinary loans ("the Offer Loans") to
the Company,
have first been offered in writing ("the Offer") to the other
Shareholders ("the Offerees") pro rata to their respective
shareholdings.
10.3 The Offer shall -
10.3.1 be irrevocable for a period of 30 days after the date of
its receipt by the Offeree(s);
10.3.2 be at a price -
10.3.2.1 in the case of the Offer Shares, the price
specified by the Offeror in the Offer; and
10.3.2.2 in the case of the Offer Loans, specified by
the Offeror in the Offer, which shall not
exceed the face value thereof;
10.3.3 be subject to the conditions that -
10.3.3.1 the whole and not a part only of the Offer is
accepted;
10.3.3.2 the purchase price is payable in cash (in the
currency of the RSA) against registration of
transfer of the Offer
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Shares and cession of the Offer Loans to the
Offeree(s) in the applicable proportions;
10.3.4 not be subject to any other terms or conditions of any
nature whatever without the prior written consent of
(all) the Offeree(s).
10.4 If there is more than one Offeree and any one of them does not
accept the Offer to purchase his proportionate share of the Offer
Shares and the Offer Loans, then the remaining Offerees shall be
entitled within 7 days after -
10.4.1 they have all been notified of that fact; or
10.4.2 the expiration of the 30 day period referred to in
10.3.1,
whichever is the earlier, to purchase a proportionate share of
the Offer Shares and the Offer Loans at the price and on the
conditions stated in 10.3 until all the Offerees have or have not
exercised their rights to accept the Offer.
10.5 Should the Offeree(s) not accept the whole of the Offer, then the
Offeror will be entitled, within 30 days after that
non-acceptance, to sell and transfer all (but not a part only) of
the Offer Shares and the Offer Loans to a bona fide third party
but only at a price which is not less than that referred to in
the Offer and on the same conditions stated in 10.3.
10.6 Should a sale be made by the Offeror in terms of this clause 10,
the Board shall not be obliged to register the transfer of the
Offer Shares and the Offer Loans unless -
10.6.1 the Purchaser has agreed in writing to be bound by the
terms and conditions of this Agreement;
10.6.2 it has been satisfied in such manner as it may reasonably
require that such sale is BONA FIDE and conforms to the
requirements of this clause 10; or
10.6.3 it has good grounds (which shall be given) for stating
that the admission of the proposed transferee is not in
the interests of the Company.
10.7 Should the Offeror not sell all the Offer Shares and Offer Loans
within the 30 days referred to in 10.5, then the provisions of
this clause 10 shall again apply, MUTATIS MUTANDIS, to all the
Offeror's shares in and loans to the Company.
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11 CALL OPTIONS
11.1 Should Xxxxxx die, or become permanently disabled such that he is
unable to meaningfully participate in the affairs of the Company
or cease to be employed by the Company for whatsoever other
reason, then Xxxxxx shall have an option ("the Call Option") to
purchase all of Albert's shares in and claims on loan account
against the Company ("the Option Shares and Claims") on the
following terms and conditions:
11.1.1 should Xxxxxx wish to exercise the Call Option he shall
do so by delivering written notice to that effect to
Xxxxxx or the executor of his estate, as the case may be,
at any time after the event referred to above and with
effect from the date of that notice ("the Call Option
Date") a sale of all of the Option Shares and Claims to
Xxxxxx shall result, at the price and on the terms and
conditions determined by agreement between Xxxxxx or the
executor of his estate, as the case may be, and Xxxxxx,
but failing agreement within 30 days of the Call Option
Date, at the price determined by the Auditors, who shall
determine the fair market value of the Option Shares and
Claims taking into account all factors they deem relevant
including, but without limiting the generality of the
aforegoing, net asset value, any agreements concluded by
the Company but not yet implemented which may have a
material effect on the value of the Option Shares and
Claims, price earnings multiples applicable to companies
quoted on the Johannesburg Stock Exchange where those
companies carry on businesses similar to the business
carried on by the Company at the Call Option Date and the
competitive position of the Company in the industry, and
the decision of the Auditors shall be final and binding
on the parties;
11.1.2 the purchase price for the Option Shares and Claims shall
be paid by Xxxxxx to Xxxxxx or the executor of his
estate, as the case may be, in cash within 7 days of the
price being agreed or determined against delivery of
share certificates in respect of the shares in question
together with duly signed share transfer forms and a
cession of the claims in question.
11.2 Should Xxxxxxx die, or become permanently disabled such that he
is unable to meaningfully participate in the affairs of the
Company, then Xxxxxx shall have an option to purchase all of
Gerritt's shares in and claims against the Company ("the Option
Shares and Claims") on the terms and conditions set out in 11.1,
MUTATIS MUTANDIS, save that each reference to "Xxxxxx" shall be a
reference to "Xxxxxxx".
11.3 Should both Xxxxxx and Xxxxxxx die within 14 Business Days of
each other, or become permanently disabled such that they are
unable to meaningfully
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participate in the affairs of the Company within 14 Business Days
of each other, then Guy shall have an option to purchase all of
Albert's and Gerritt's shares in and claims against the Company
("the Option Shares and Claims") on the terms and conditions set
out in 11.1, MUTATIS MUTANDIS, save that each reference to
"Xxxxxx" shall be a reference to "Xxxxxx and Xxxxxx", and each
reference to "Xxxxxx" shall be a reference to "Guy".
11.4 Should Guy die, or become permanently disabled such that he is
unable to meaningfully participate in the affairs of the Company
or cease to be employed by the Company for whatsoever other
reason, then the Xxxxxx and Xxxxxx shall have an option to
purchase all of Guy's shares in and claims against the Company on
the terms and conditions set out in 11.1 MUTATIS MUTANDIS, save
that each reference to "Xxxxxx" shall be a reference to "Guy",
and each reference to "Xxxxxx" shall be a reference to "Xxxxxx
and Xxxxxx".
12 ARTICLES OF ASSOCIATION
Should the provisions of this Agreement conflict with the provisions of
the Articles in force from time to time, then the provisions of this
Agreement shall prevail and any party shall be entitled to require the
passing of a special resolution to make the appropriate amendments to
the Articles to resolve the conflict in question.
13 DIVIDEND POLICY
The parties agree that, unless the Shareholders decide otherwise from
time to time, the Company shall not declare and pay a dividend unless
the Shareholder's Loans are in the Shareholders' Proportion.
14 EMPLOYMENT
14.1 Xxxxxx and Guy shall both be employed on a full time basis by the
Company substantially on the terms and conditions set out in the
employment contracts attached hereto as SCHEDULE "2" and SCHEDULE
"3".
14.2 The Company shall procure that the Auditors (acting as experts
and not arbitrators) independently assess and determine the total
remuneration package payable to Xxxxxx and Guy in terms of the
said employment contracts. Such determination shall be final and
binding on all parties to this Agreement.
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14.3 Until such determination has been made, Xxxxxx and Guy shall
continue to be employed by the Company on the same terms and
conditions that were in force on the Effective Date.
15 RESTRAINT
15.1 Each of the parties to this Agreement undertakes to the other
parties that for a period of 5 years from the Effective Date it
will not, either alone or jointly or together with or as agent
for any other person, partnership, body corporate or association
of any nature whatsoever -
15.1.1 be engaged, interested or concerned, whether financially
or otherwise or whether directly or indirectly, in;
15.1.2 be a director of or a shareholder in a company carrying
on or concerned directly or indirectly with;
15.1.3 solicit any employee or customer of the Company;
15.1.4 act as a consultant or adviser to -
any -
(A) business which is the same as or similar to
the business carried on by the Company;
(B) company or other body corporate carrying on a
business of the nature referred to in (A).
15.2 The restraints referred to in 15.1 shall only apply to the RSA,
Botswana, Lesotho, Zimbabwe, Namibia and Swaziland.
15.3 Each party records that the undertaking given in terms of 15.1
is -
15.3.1 fair and reasonable as regards its nature, restraint and
period;
15.3.2 necessary to protect the other parties' interests.
15.4 The undertaking set out in 15.1 is subject to the
condition that it will not prevent any of the parties at
any time from being the beneficial shareholder or not
more than 5% in the aggregate of the equity share capital
of any company, one of whose business is the same as or
similar to the business of the Company, and whose shares
are listed on The Johannesburg Stock Exchange.
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15.5 Each of the restraints set out in 15.1 -
15.5.1 shall be construed as severable and divisible and
given effect to as such;
15.5.2 shall not be cancelled as a result of the
termination of this Agreement for any reason
whatsoever;
15.5.3 shall be enforceable by any of the parties or
their assignees notwithstanding any such
termination.
16 ARBITRATION
16.1 Any dispute between the parties in regard to any matter arising
out of this Agreement or its interpretation or their respective
rights and obligations under this Agreement or its cancellation
or any matter arising out of its cancellation, shall be submitted
to and decided by arbitration.
16.2 There shall be 1 arbitrator who shall be, if the question in
issue is -
16.2.1 primarily an accounting matter, an independent chartered
accountant of not less than 15 years' standing;
16.2.2 primarily a legal matter, a practising attorney or
advocate of not less than 15 years' standing;
16.2.3 primarily a technical matter, a suitably qualified
person;
16.2.4 any other matter, a suitably qualified person.
16.3 The appointment of the arbitrator shall be agreed upon between
the parties, but failing agreement between them within a period
of 14 days after the arbitration has been demanded, either of
the parties shall be entitled to request the chairman for the
time being of the Johannesburg Bar Council to make the
appointment and, in making his appointment, to have regard to the
nature of the dispute.
16.4 Subject to the other provisions of this clause 16, each
arbitration shall be held in Johannesburg in accordance with the
provisions of the Arbitration Act, 1965, as amended.
16.5 The decision of the arbitrator shall be final and binding on the
parties, and may be made an order of any Court of competent
jurisdiction. Each of the parties hereby submits itself to the
jurisdiction of the Witwatersrand Local
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Division of the High Court of the RSA should the other party wish
to make the arbitrator's decision an order of that court.
17 BREACH
17.1 Should any party commit a breach of this Agreement and fail to
remedy that breach within 7 days after receipt from the other
parties of written notice calling upon him/it so to do, then the
party aggrieved by that breach shall be entitled, in addition to
and without prejudice to any right he/it may have as a result of
that breach, either to -
17.1.1 enforce the performance of the terms hereof; or
17.1.2 cancel this Agreement and recover such damages as he/it
may have sustained.
17.2 The parties remedies under 17.1 shall not be exhaustive and shall
be in addition and without prejudice to any other remedies they
may have whether for damages or otherwise.
18 NON-VARIATION
No alteration or variation to, or consensual cancellation of, this
Agreement shall be of any force or effect unless it is recorded in
writing and signed by all the parties to this Agreement.
19 DOMICILIUM AND NOTICES
19.1 The parties choose the address set out below as the address at
which all notices and other communications must be delivered for
the purposes of this Agreement -
19.1.1 Xxxxxx at 00 Xxx Xxxx Xxxxxx, Xxxxxxxxxxxxx or Telefax
Number (0000) 000 0000;
19.1.2 the Company at Lower Ground Floor, Exide Place, 0 Xxxxx
Xxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxxxx or Telefax
(011) 622-8973;
19.1.3 Xxxxxx at 00 Xxx Xxxx Xxxxxx, Xxxxxxxxxxxxx or Telefax
Number (0000) 000 0000;
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19.1.4 Guy at 0X, Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx, 0000 or
Telefax No. (011) 783-1719;
19.1.5 Technor at Xxxxxxxxxxxxxx 00, X-00000
Xxxxxxxx, Xxxxxx, or Telefax Number (00) 000-00000
19.2 Any notice or communication required or permitted to be given in
terms of this Agreement shall be valid and effective only if in
writing but it shall be competent to give notice by telefax.
19.3 Any notice to a party contained in a correctly addressed envelope
and delivered by hand to a responsible person during ordinary
business hours at its chosen address, shall be deemed to have
been received on the day of delivery.
19.4 Any notice sent by telefax to a party at its telefax number shall
be deemed (unless the contrary is proved) to have been received -
19.4.1 if it is transmitted during normal business hours, within
2 hours of transmission;
19.4.2 if it is transmitted outside normal business hours,
within 2 hours of the commencement of normal business
hours on the first Business Day after it is transmitted.
19.5 The parties choose the physical address set out opposite its name
in 19.1 as the address at which legal process must be delivered
for the purpose of this Agreement.
19.6 The parties shall be entitled at any time to change their
addresses for the purposes of this clause 19 to any other address
in the RSA by giving written notice to that effect to the other.
20 GENERAL
20.1 Any latitude or extension of time which may be allowed by any
party shall not under any circumstances whatsoever act as an
estoppel or be a waiver of that party's rights hereunder.
20.2 The parties to this Agreement undertake to treat all matters
relating to this Agreement and the schedules hereto as being
confidential and, therefore, shall not, without the written
approval of the others, disclose the provisions hereof to any
third party.
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20.3 This Agreement constitutes the entire contract between the
parties as regards its subject matter and no other conditions,
warranties, guarantees and representations shall be of any force
or effect other than those which are included herein.
20.4 All the transactions and arrangements contemplated in this
Agreement constitute one indivisible transaction.
21 INTERPRETATION
21.1 In this Agreement, unless the context requires otherwise -
21.1.1 words importing any one gender shall include the other
two genders;
21.1.2 the singular shall include the plural and vice versa;
21.1.3 a reference to natural persons shall include created
entities (corporate and unincorporate) and vice versa.
21.1.4 "day" means any day other than a Saturday, Sunday or any
official public holiday within the RSA;
21.1.5 any reference to an enactment is to that enactment as at
the date of signature hereof and as amended or re-enacted
from time to time;
21.1.6 if any provision in a definition is a substantive
provision conferring rights or imposing obligations on
any party, notwithstanding that it is only in the
definition clause, effect shall be given to it as if it
were a substantive provision in the body of this
Agreement;
21.1.7 when any number of days is prescribed in this Agreement,
that number of days shall be reckoned exclusively of the
first and inclusively of the last day unless the last day
falls on a Saturday, Sunday or official public holiday,
in which event the last day shall be the next succeeding
day which is not a Saturday, Sunday or official public
holiday;
21.1.8 expressions or words defined in this Agreement shall bear
the same meaning in the schedules to this Agreement which
do not themselves contain definitions.
21.2 The headings in this Agreement have been inserted for convenience
only and shall not be used for nor assist or affect its
interpretation.
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22 GOVERNING LAW AND JURISDICTION
22.1 The validity of this Agreement, its interpretation, the
respective rights and obligations of the parties and all other
matters arising in any way out of this undertaking or its
performance shall be determined in accordance with the laws of
the RSA.
22.2 The parties hereby consent and submit to the jurisdiction of the
Witwatersrand Local Division of the High Court of the RSA for the
purposes of all or any legal proceedings arising from or
concerning this Agreement.
23 COSTS
Each party shall bear its own costs of and incidental to the
negotiating, preparing and drawing of this Agreement.
24 COUNTERPARTS
This Agreement may be executed in any number of counterparts which when
so executed will be deemed to be an original and all of which when taken
together will constitute one and the same instrument. One or more
counterparts of this Agreement may be delivered via telefax with the
intention that it will have the same effect as the delivery of an
original counterpart hereof.
SIGNED at on 1998
--------------------------------
XXXXXX XXX XXX
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SIGNED at on 1998
--------------------------------
XXXXXX XXX XXX
SIGNED at on 1998
--------------------------------
XXX XXXXXXX
SIGNED at on 1998
For: TECHNOR INTERNATIONAL INC.
--------------------------------
Signatory:
Capacity:
Authority:
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SIGNED at on 1998
For: WASP INTERNATIONAL (PTY) LTD
--------------------------------
Signatory:
Capacity:
Authority:
SCHEDULE 1
THE COMPANY'S ARTICLES OF ASSOCIATION
