Exhibit 2.12
AGREEMENT
entered into between
VIRTUAL SUPPORT CC
(Registration No. CK96/38134/23)
and
XXXXXXXXXX.xxx, Inc. USA
(Registration No. 95/08558/07)
and
XXXXX XXXXXX XXXXXX
and
XXXXXXX XXXXX XXXXXXXXX
and
XXXXX XXXX
and
AARDT DAVIDTZ
TABLE OF CONTENTS
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CLAUSE NO. DESCRIPTION PAGE
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1. INTERPRETATION AND PRELIMINARY ................................. 2
2. CONDITIONS PRECEDENT ........................................... 7
3. SALE OF THE BUSINESS ........................................... 8
4. PURCHASE PRICE ................................................. 9
5. STOCKTAKING .................................................... 11
6. EMPLOYEES ...................................................... 13
7. SECTION 34 ADVERTISEMENT ....................................... 15
8. DELIVERY ....................................................... 15
9. THE NAME ....................................................... 18
10. WARRANTIES ..................................................... 19
11. INDEMNITY ...................................................... 24
12. RESTRAINT ...................................................... 25
13. AGENT'S COMMISSION ............................................. 29
14. BREACH ......................................................... 29
15. DOMICILIUM CITANDI ET EXECUTANDI ............................... 30
16. WHOLE AGREEMENT ................................................ 33
17. COSTS .......................................................... 34
18. VALUE-ADDED TAX ................................................ 35
19. JOINT AND SEVERAL LIABILITY OF THE SELLER ...................... 35
21. EXECUTION IN COUNTERPARTS ...................................... 35
ANNEXURE A - DESIGNATED FIXED ASSETS ........................................ 1
ANNEXURE B - CONTRACTS (INCLUDING LIST OF EMPLOYEES) ........................ 1
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WHEREBY IT IS AGREED AS FOLLOWS:
1. INTERPRETATION AND PRELIMINARY
The headings of the clauses in this agreement are for the purpose of
convenience and reference only and shall not be used in the
interpretation of nor modify nor amplify the terms of this agreement
nor any clause hereof. Unless a contrary intention clearly appears -
1.1. words importing -
1.1.1. any one gender include the other two genders;
1.1.2. the singular include the plural and vice versa;
and
1.1.3. natural persons include created entities
(corporate or unincorporate) and vice versa;
1.2. the following terms shall have the meanings assigned to them
hereunder and cognate expressions shall have corresponding
meanings, namely -
1.2.1. "Act" means the Xxxxxxxxx Xxx, 0000;
1.2.2. "business" means the business of authorising
service and distributing agent for Apple computers
support and spares services currently conducted by
Virtual Support CC;
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1.2.3. "Xxxxxxxxxx.Xxx" means a corporation incorporated
in terms of the laws of the State of Nevada with
its principal place of business at 000 Xxxxx
Xxxxx, Xxxxxxx Xxxxxxxxx 00000 XXX;
1.2.4. "condition precedent" means the conditions
precedent in clause 2;
1.2.5. "designated fixed assets" means those fixed assets
reflected in Annexure B hereto;
1.2.6. "designated liabilities" means those liabilities
of the business owing at the effective date to
trade and hire purchase and lease creditors of the
business as reflected in the effective financial
statements but excluding:
1.2.6.1. any product liability, warranty or
implied guarantee in respect of goods
sold and delivered prior to the
effective date but in respect of
liabilities relating to products sold
and delivered during the period 1 April
1999 to the effective date, such
liabilities shall be taken into account
as liabilities being acquired as part of
the designated liabilities in an amount
not exceeding the nett profits earned
during the period 1 April 1999 to the
effective date from the sale of products
during that period;
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1.2.6.2. any contingent liabilities at the
effective date;
1.2.6.3. any liability of the seller in respect
of any unfunded deficit of its provident
fund for its employees; which shall
remain the sole responsibility of the
seller
1.2.7. "effective date" means the close of business on 31
January 2000;
1.2.8. "fixed assets" means all the fixed assets used in
connection with and comprising part of the
business including at least the designated fixed
assets;
1.2.9. "implementation date" means 31 January 2000;
1.2.10. "name" means Virtual Support CC and all such other
names under which the business is or has been
conducted;
1.2.11. "NASDAQ" means the NASDAQ Stock Market in the
United States of America;
1.2.12. "premises" means the leased premises at which the
business is carried on, being 0xx Xxxxx, Xxxxxx
Xxxx, 00X Xxx Xxxxxx Xxxxxx, Xxxx Xxxx 0000;
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1.2.13. "prime rate" means the publicly quoted basic rate
per annum ruling from time to time at which Nedcor
Bank lends on overdraft;
1.2.14. "purchaser" means XXXXXXXXXX.xxx, Inc. USA a
company with limited liability duly incorporated
in terms of the company laws of South Africa with
registration number 95/08558/07, or its nominee;
1.2.15. "seller" means Virtual Support CC a close
corporation duly incorporated in terms of the
Close Corporation Act of South Africa with
registration number CK96/38134/23;
1.2.16. "stock" means finished stock, work-in-progress and
raw materials on hand in respect of the business
as at the effective date including
stock-in-transit and any slow moving stock, but
excluding damaged or unsaleable stock;
1.3. any reference in this agreement to "date of signature
hereof" shall be read as meaning a reference to the date of
the last signature of this agreement;
1.4. 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;
1.5. 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
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definition clause, effect shall be given to it as if it were
a substantive provision in the body of the agreement;
1.6. when any number of days is prescribed in this agreement,
same shall be reckoned exclusively of the first and
inclusively of the last day unless the last day falls on a
Saturday, Sunday or public holiday, in which case the last
day shall be the next succeeding day which is not a
Saturday, Sunday or public holiday;
1.7. where figures are referred to in numerals and in words, if
there is any conflict between the two, the words shall
prevail;
1.8. expressions defined in this agreement shall bear the same
meanings in schedules or annexures to this agreement which
do not themselves contain their own definitions;
1.9. reference to day/s, month/s or year/s shall be construed as
Gregorian calendar day/s, month/s or year/s;
1.10. the use of any expression in this agreement covering a
process available under South African law such as a
winding-up (without limitation eiusdem generis) shall, if
any of the parties to this agreement is subject to the law
of any other jurisdiction, be construed as including any
equivalent or analogous proceedings under the law of such
defined jurisdiction;
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1.11. where any term is defined within the context of any
particular clause in this agreement, the term so defined,
unless it is clear from the clause in question that the term
so defined has limited application to the relevant clause,
shall bear the meaning ascribed to it for all purposes in
terms of this agreement, notwithstanding that that term has
not been defined in this interpretation clause;
1.12. the expiration or termination of this agreement shall not
affect such of the provisions of this agreement as expressly
provide that they will operate after any such expiration or
termination or which of necessity must continue to have
effect after such expiration or termination, notwithstanding
that the clauses themselves do not expressly provide for
this;
1.13. the rule of construction that the contract shall be
interpreted against the party responsible for the drafting
or preparation of the agreement, shall not apply.
2. CONDITIONS PRECEDENT
2.1. This agreement, is subject to the suspensive conditions,
contained in this clause 2.1 namely:
2.1.1. the conclusion of a management agreement between
the purchaser and A Davidtz prior to 31 January
2000;
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2.1.2. Approval of the members of the seller in terms of
s46(b)(ii) of the Close Corporation Act.
2.1.3. Exchange Control approval from the South African
Reserve Bank.
2.1.4. The listing of Xxxxxxxxxx.Xxx in the United States
of America on the NASDAQ by 31 January 2000.
2.2. Forthwith after the signature of this agreement, the parties
shall use their best endeavours to procure the fulfilment of
the conditions referred to in this clause 2.1.
3. SALE OF THE BUSINESS
The seller sells, transfers and cedes to the purchaser as an
indivisible whole and as a going concern with effect from the
effective date from which date the risk in and benefit of the business
shall vest in the purchaser, the business comprising -
3.1. the goodwill thereof;
3.2. the exclusive right to use the name;
3.3. the fixed assets;
3.4. the stock;
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3.5. deposits made by the seller in respect of the business;
3.6. the debtors; (any debtors not recovered within 90 (ninety)
days from the effective date will be refunded by the seller
to the purchaser);
3.7. the creditors;
3.8. the bank overdrafts and bank accounts;
3.9. all contracts of the business concluded in the ordinary
course of business, including orders relating to stock
undelivered as at the effective date, the purchaser
acknowledging having been given copies of the contracts
listed in Annexure B,
but excluding any debts and any liabilities other than any liabilities
contemplated in clause 8.1.1 in respect of the contracts and the name.
4. PURCHASE PRICE
4.1. The purchase price of the business is based on the net asset
value at 28 February 1999 and is the sum R200 000,00 (two
hundred thousand rand) allocated as follows -
4.1.1. the fixed assets R50 000,00 (fifty thousand
rand);
4.1.2. the stock, R5 000,00 (five thousand rand);
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4.1.3. the name, R12 425,00 (twelve thousand four hundred
and twenty five rand);
4.1.4. goodwill, R109 900,00 (one hundred and nine
thousand nine hundred rand).
4.1.5. debtors, R45 000,00; (forty five thousand rand);
4.1.6. cash at bank and on deposit, R25 000,00 (twenty
five thousand rand);
4.1.7. creditors, R34 900,00 (thirty four thousand nine
hundred rand);
4.1.8. bank overdraft, R0,00 (Nil);
4.2. Any differences in net asset value at the effective date
will be reconciled with the values in clause 4.1. Any
shortfall will be deducted from the purchase price, and any
increase will be added to the purchase price.
4.3. The purchase price shall be paid as follows -
4.3.1. by the purchaser discharging the designated
liabilities on due date, and the purchaser
indemnifies the seller against the purchaser's
failure to do so on due date;
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4.3.2. by the purchaser paying, on the implementation
date against the delivery of the business to the
seller, the sum of R200 000,00 (two hundred
thousand rand);
4.4. All payments to be effected by the purchaser to the seller
in terms of this agreement shall be made at Cape Town.
5. STOCKTAKING
5.1. The parties shall cause the stock to be taken in accordance
with the following provisions -
5.1.1. the stocktaking shall take place during the course
of the 48 (forty eight) hours prior to the
effective date, that being 31 January 2000;
5.1.2. each of the parties' auditors shall be present or
represented at the stocktaking;
5.1.3. after the stocktaking has been completed,
schedules reflecting the stocktaking shall be
prepared and initialled by the parties;
5.1.4. the stock reflected in the schedules referred to
in clause 5.1.3 shall be valued -
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5.1.4.1. in the case of undamaged finished stock
which is not slow moving, at the lower
of the cost thereof to the seller and
net realisable value;
5.1.4.2. in the case of undamaged work in
progress which is not slow moving, at
the cost thereof to the seller;
5.1.4.3. in the case of slow moving finished
stock and slow moving work in progress,
at a discount of 20% (twenty per cent)
on the nett realisable value;
5.1.4.4. in the case of undamaged raw materials,
at the cost thereof to the seller.
5.2. For the purpose of this clause -
5.2.1. "slow moving" means finished stock or work in
progress in respect of which firm orders have been
placed the implementation date for which is more
than 1 (one) month after the effective date or the
date of completion of the work in progress, or in
respect of which no firm orders have been placed
at all as at the effective date;
5.2.2. "cost to the seller" -
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5.2.2.1. means the price paid by the seller to
the ;
5.2.2.2. shall take into account all the
discounts including settlement discounts
granted to the seller.
5.3. Should there be any dispute in regard to the value of any
item of stock or in regard to whether any item of the stock
is damaged or slow moving, the dispute shall be determined
by the respective auditors of the purchaser and the seller,
acting jointly and, failing agreement between such auditors,
by independent auditors appointed by the respective auditors
of the purchaser and the seller (or failing agreement
between them, by the Chairman for the time being of the Cape
Society of Chartered Accountants (or the successor body
thereto)). Such auditors in resolving the dispute shall act
as experts and not as arbitrators and their decision shall
be final and binding on the parties and their charges shall
be paid by the purchaser and the seller in equal shares.
6. EMPLOYEES
6.1. The parties agree that section 197(2) of the Labour
Relations Act, 1995 is applicable to the seller in terms of
this agreement and that accordingly the employment of each
employee of the seller employed in regard to the business,
will continue in force with the purchaser as the "new
employer". The parties agree that no agreements contemplated
in terms of section 197(3) of that Act will be concluded.
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6.2. The employees contemplated in clause 6.1 are members of the
seller's provident fund. The purchaser shall be entitled to
take over the seller's fund which relates solely to the
business if it so desires and to operate such fund as its
own fund, with effect from the effective date. The seller
shall furnish the purchaser with a certificate from the
actuaries of the fund as to the position of the fund at the
effective date. The seller undertakes that the actuaries of
the seller's provident fund will, as soon as is reasonably
possible, establish the value of the accrued liabilities of
the seller's provident fund in respect of the employees in
question as at the effective date. The amount of the
liabilities shall be expressed as a proportion of the total
liabilities of the seller's provident fund as at the
effective date and that proportion of the assets, adjusted
to account for income and expenditure from the effective
date to the date of transfer, shall be transferred to the
purchaser's provident fund. The seller warrants that the
said assets shall cover the said liabilities. The bases used
by the actuaries of the provident fund(s) for the valuation
of liabilities and assets in terms hereof shall be agreed
with an actuary appointed by the purchaser or, failing such
agreement, the said bases shall be determined by an actuary
appointed by the President for the time being of the
Actuarial Society of South Africa, such appointee to act as
an expert and not as an arbitrator and his decision to be
final and binding on the parties including any decision as
to liability for his costs.
6.3. The purchaser undertakes to procure that the employees
contemplated in clause 6.1 who are members of the seller's
provident fund shall be transferred to a provident fund on
the basis that such employees shall
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only acquire such share in the new provident fund as shall
be available using the assets to be transferred from the
seller's provident fund as contemplated below, and to the
extent that such employees are retrenched by the purchaser
within 30 (thirty) days, the purchaser shall be obliged to
pay to any such employees their pro rata share of such fund
as at the date of retrenchment determined mutatis mutandis
in accordance with clause 6.2.
6.4. The seller shall pay the purchaser an amount equivalent to
the accrued leave pay due to any employee whose employment
continues in force with the purchaser after the effective
date.
7. SECTION 34 ADVERTISEMENT
The seller shall be obliged to advertise the transaction in terms of
section 34 of the Insolvency Act, 1936.
8. DELIVERY
8.1. The business shall be delivered to the purchaser on the
implementation date (against payment of the relevant portion
of the purchase price) from which date the purchaser shall
take legal possession of the business. Delivery shall
include -
8.1.1. The cession by the seller to the purchaser of the
debts subject to the resolutive condition that
such debt will be fully recoverable (save to the
extent, in respect of all the debts in aggregate,
of the provision allowed for any effective
financial
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statements) within 30 (thirty) days from the
effective date the last day of the month during
which the debts in question were incurred. Should
any of the debts not have been recovered by the
purchaser within the period specified herein the
sale of the debts shall be deemed ipso facto to be
of no force and with effect from the effective
date and the purchase price payable in terms of
this agreement shall be adjusted accordingly. The
seller shall repay to the purchaser an amount
equal to the amount of such irrecoverable debt
less the provision as reflected in the effective
financial statements, together with interest
thereon at the prime rate compounded monthly in
arrear from the implementation date to date of
payment. The amount so due by the seller to the
purchaser shall be paid against cession by the
purchaser to the seller of such irrecoverable
debt;
8.1.2. the assignment (with effect from the effective
date) of the seller's rights and prospective
obligations in respect of the contracts
contemplated in clause 3.9, to the extent that the
other parties to such contracts consent thereto.
The seller undertakes to use its best endeavours
to procure the assignment of the contracts to the
purchaser. To the extent that the other parties to
the contracts do not consent to such assignment -
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8.1.2.1. the purchaser shall be entitled as
between it and the seller to the benefit
of and shall bear the risk of such
contracts from the implementation date
and the seller shall bear the risk and
be entitled to the benefit of such
contracts prior to the implementation
date;
8.1.2.2. the seller shall be obliged to discharge
any obligations under the contracts in
respect of the period from the effective
date to the implementation date;
8.1.2.3. the purchaser shall be obliged at its
cost but in the seller's name to
discharge the seller's obligations under
the contracts after the implementation
date;
8.1.2.4. the parties respectively indemnify each
other against any loss of any nature
which may arise as a result of the other
of them failing to comply with their
obligations hereunder.
8.1.3. the handing over to the purchaser on loan for a
period of 120 (one hundred and twenty) days of the
seller's documents, books and records and all
information relating to the business subject to
the auditors being given access as necessary. The
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purchaser shall be entitled to make copies of all
such documents, books and records. After the
expiry of the 120 (one hundred and twenty) day
period, the purchaser shall have reasonable access
thereto;
8.1.4. the physical delivery of all assets forming part
of the business to the purchaser by handing them
to the purchaser at the premises;
8.1.5. insofar as motor vehicles are concerned, all
necessary licence papers and transfer documents,
but on the basis that the purchaser shall obtain
roadworthy certificates if necessary;
8.1.6. the cession of any restraint of trade given to the
seller in respect of the business, to the
purchaser.
8.2. The seller shall account to the purchaser for any receipts
of the business paid directly to the seller after the
effective date in respect of transactions that were entered
into after the effective date.
9. THE NAME
The seller shall be obliged to procure that within 30 (thirty) days of
signature hereof, its name is changed, so as to enable the purchaser
to register such name as a defensive name in its favour.
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10. WARRANTIES
10.1. The seller warrants that -
10.1.1. the fixed assets and the name are beneficially
owned by the seller which will be able to give
free and unencumbered title thereof as well as of
any current assets sold, to the purchaser on the
implementation date;
10.1.2. the designated fixed assets will be delivered to
the purchaser on the implementation date without
any of such assets missing;
10.1.3. there will not be fixed assets in addition to the
designated assets, the value of which is more than
R1 000,00 (one thousand rand);
10.1.4. none of the liabilities imposed on the seller
under the contracts forming part of the sale will
be payable in or linked to foreign currencies;
10.1.5. between date of signature and the implementation
date, the seller will not have entered into any
transaction or acquired or disposed of any assets
or incurred any liabilities, otherwise than in the
normal, ordinary and regular course of business,
nor will it have increased the salaries of
employees during that period other than normal or
merit increases determined in the
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normal course and no events will have taken place
which have or will have had the effect of
impairing the goodwill of the business;
10.1.6. all products which have been manufactured and/or
sold by the seller in respect of the business have
been manufactured and/or sold in compliance with
the requirements of all competent authorities, if
any;
10.1.7. the seller is not in default of any material
obligation affecting the business, whether under
the contracts contemplated in clause 3.9 or under
any legislation or (without limitation eiusdem
generis) otherwise;
10.1.8. the books, accounts and records of the seller do
and will until the implementation date continue to
accurately reflect in accordance with generally
accepted accounting principles and practice all of
the transactions entered into by the seller or to
which it is a party in respect of the business;
10.1.9. the business will not have generated a loss
between the period 1 June 1999 to the
implementation date;
10.1.10. the seller has disclosed to the purchaser all
facts and circumstances material to this
transaction and which are or
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would be material to an independent purchaser of
the business;
10.1.11. no person who has any claim in connection with the
business, has instituted proceedings in a division
of the High Court having jurisdiction in the
district in which the business is carried on or in
the Magistrates' Court of that district nor is the
seller aware of any circumstances which may give
rise thereto prior to the implementation date;
10.1.12. the copies of the contracts listed in Annexure B
which have been furnished to the purchaser fully
and correctly reflect all the terms and conditions
thereof and have not been amended in any respects
and all such contracts are of full force and
effect according to their tenor;
10.1.13. the seller will have complied with all its
obligations as tenant under leases in respect of
the premises and will have no unfulfilled
obligations whether in respect of restoration or
repair of such property or otherwise;
10.1.14. the seller is not aware of any facts or
circumstances which could result in the licences,
authorities or consents in respect of the premises
and the business not being renewed from time to
time;
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10.1.15. to the best of the seller's knowledge and belief,
the purchaser will not be required to effect any
repairs or alterations or additions to the
premises as a pre-requisite to the granting of any
necessary trading licences, authorities or
consents;
10.1.16. all general sales tax or value added tax owing to
the Department of Inland Revenue as at the
effective date in respect of the business will
have been paid in full;
10.1.17. all fixtures, fittings, furniture, plant and
equipment and the other items listed on Annexure A
as well as any other assets comprising the
business will be in good and proper working
condition and together with contracts contemplated
in clause 3.9 and the name are the only assets
required for the conduct of the business;
10.1.18. it has not sold or otherwise disposed of or
encumbered any of the rights attaching to the name
(nor purported nor agreed to do so) to any person
other than the purchaser nor has it granted any
right, licence, option or privilege with respect
thereto nor encumbered them in any way;
10.1.19. to the best of the seller's knowledge and belief
the use of the name does not infringe nor will it
infringe any rights of any third party;
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10.1.20. no other person has the right to exploit the
rights attaching to the name and to the best of
the seller's knowledge and belief there is nothing
which will preclude the purchaser from exploiting
such rights at any time;
10.1.21. no person save as contemplated in this agreement,
has nor will on the effective date have any right
to participate in any of the revenues or profits
generated pursuant to the exploitation of the name
acquired in terms hereof;
10.1.22. to the best of the seller's knowledge and belief
the use of the name by the purchaser will be
unimpeachable by any third party;
10.1.23. to the best of the seller's knowledge and belief
there is no infringement or suspected infringement
of the rights to the name;
10.1.24. between the effective date and the date of
signature hereof, the seller will not have done
anything which could prejudice the rights to the
name in any way whatsoever;
10.1.25. the profits generated by the business in the 3
(three) years preceding the effective date shall
not differ from each other by more than 20%
(twenty per cent);
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10.2. The seller warrants that no application for the winding up
of the seller has been presented at date of signature hereof
nor will any such application have been presented on the
implementation date.
10.3. Nothing herein contained shall relieve the seller from its
obligation to make those disclosures which it is in law
obliged to make.
10.4. No warranties or representations which are not set forth in
this agreement shall be binding on the seller and the
business is purchased on the basis that it is taken
voetstoots.
11. INDEMNITY
11.1. The seller indemnifies the purchaser against any claims,
which may be made in respect of finished products and
work-in-progress which are included in the stock forming
part of the business, provided that to the extent that any
claims are made against the purchaser in respect of any such
stock which was sold and delivered to third parties in the
course of the business during the period 1 January 1998 to
the implementation date, the seller's indemnity shall only
operate in respect of claims the amount of which exceeds the
amount of net profits earned by the business during the
period from 1 January 1998 to the implementation date in
respect of such products sold and delivered during such
period. Should any claims be made against the purchaser in
respect of such stock, the purchaser shall afford the seller
an opportunity to assist the purchaser to contest the claim
and, subject to an indemnity in a form acceptable to the
purchaser against costs being given by the seller, shall
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engage attorneys and counsel nominated by the seller for the
said purpose.
11.2. The seller indemnifies the purchaser against any losses or
damages of whatsoever nature which the purchaser may sustain
by reason of assuming all the obligations of the seller
under the contracts of employment with the employees of the
business, the cause of which arose prior to the effective
date.
12. RESTRAINT
12.1. In this clause, unless clearly inconsistent with the
context, words and phrases defined hereunder shall bear the
meanings assigned to them in this sub-clause -
12.1.1. "competitive activity" shall mean the business of
authorising service and distribution agent for
Apple computers;
12.1.2. "the restraint period" shall mean a period of 1
(one) year from the effective date;
12.1.3. "territory" shall mean the Republic of South
Africa;
12.2. The seller hereby undertakes to the purchaser that it will
not, either alone or jointly -
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12.2.1. during any part of the restraint period, whether
as proprietor, partner, director, shareholder,
employee, member, consultant, contractor,
financier, agent, representative, assistant or
otherwise, and whether for reward or not, directly
or indirectly, -
12.2.1.1. carry on in the territory any
undertaking; or
12.2.1.2. be interested or engaged in or concerned
with any company, close corporation,
firm, undertaking or concern operating
in any part of the territory; or
12.2.1.3. be employed by any company, close
corporation, firm, undertaking or
concern operating in any part of the
territory in a competitive activity;
12.2.2. during any part of the restraint period and
thereafter, to the extent that the same are
protected by law, disclose any trade secrets
and/or confidential information of the business
other than to persons connected with the business
and who are required to know such secrets or to
have such confidential information. Trade secrets
and confidential information shall include (but
not be limited to) all and whatever information
relating to the business and its suppliers and
customers which
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is not readily available in the ordinary course of
business to its competitors, provided that nothing
herein contained shall prohibit the seller from
entering into any joint ventures with persons who
are concerned in competitive activities in the
territory, provided that the subject matter of the
joint venture is not a competitive activity in the
territory.
12.3. The seller acknowledges and agrees that -
12.3.1. the restraints imposed upon it in terms of this
clause (interpreted initially in their widest
sense as provided in clause 12.3.3) are reasonable
as to subject matter, period and territorial
limitation and are not more than reasonably and
necessarily required by the purchaser to maintain
the goodwill of, and its legitimate business
interests in respect of the business;
12.3.2. the provisions of clauses 12.2 and 12.3.1 shall be
construed as imposing separate, severable and
independent restraints in respect of -
12.3.2.1. each of the months falling within the
restraint period;
12.3.2.2. each magisterial district falling within
the territory;
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12.3.2.3. each activity falling within the ambit
of a competitive activity;
12.3.2.4. each capacity in relation to a
competitive activity which the
covenantor is prohibited from holding in
terms of this clause;
12.3.3. the restraints set out in clause 12.2 shall
initially be given the widest possible
interpretation and no restraint or combination of
restraints shall be limited by reference to or
inference from any other restraint or combination
of restraints, provided however that the
invalidity or unenforceability of any one or
combination of restraints referred to in clause
12.2 (including the restraints interpreted in
their widest cumulative sense as aforesaid) shall
not affect the validity or enforceability of any
of the other restraints referred to in clause 12.2
or another combination of such restraints.
12.4. No restraints referred to in this clause shall apply to any
direct or indirect shareholding by the seller in any company
listed on a recognised stock exchange where the aggregate
direct and indirect holdings of the seller do not exceed 5%
(five per cent) of any class of that listed company's issued
share capital and the interest of the seller in that company
is solely that of a shareholder.
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12.5. The above restraints shall enure also in favour of the
successors in title of the business. The term "successors in
title" shall mean any person who -
12.5.1. acquires the goodwill of the business; or
12.5.2. becomes the beneficial owner of such goodwill
through his shareholding in any company; or
12.5.3. has acquired by cession the right to enforce the
restraints embodied herein.
12.6. The provisions of this clause 12 shall apply mutatis
mutandis to A Davidtz who undertake to be bound thereby, any
reference to the seller being read as a reference to K
Xxxxxx, H Xxxxxxxxx, A Xxxx.
13. AGENT'S COMMISSION
It is recorded that the sale was not concluded through the
instrumentality of any agent.
14. 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 provided that the party in
breach furnishes
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evidence within the period of 14 (fourteen) days, reasonably
satisfactory to the other party, that it has taken whatever steps are
available to it, to commence remedying the breach) 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.
15. DOMICILIUM CITANDI ET EXECUTANDI
15.1. The parties choose as their domicilia citandi et executandi
for all purposes under this agreement, whether in respect of
court process, notices or other documents or communications
of whatsoever nature (including the exercise of any option),
the following addresses:
15.1.1. PURCHASER
Physical: 0xx Xxxxx, Xxxxxx Xxxxx
Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxx
7748
Postal: XX Xxx 0X000
Xxxxxxx Xxxxxx
0000
Telefax: (021) 441 2287
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15.1.2. SELLER
Physical: 0xx Xxxxx, Xxxxxx Xxxx
00X Xxxxxxxxx Xxxxxx
Xxxx Xxxx
0000
Postal: X Xxxxxx & Xx.
X0 Xxx 00
Xxxxxxxxxx
0000
Telefax: (021) 462 1660
15.1.3. Xxxxx Xxxx
Physical: 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx
15.1.4. Xxxxx Xxxxxx Xxxxxx
Physical: 00 Xxxxxx Xxxx
Xxxxxxxxxx
15.1.5. Xxxxxxx Xxxxx Xxxxxxxxx
Physical: 00 Xxxxxx Xxxxxx
Xxxxxxxxx
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15.1.6. Aardt Davidtz
Physical: 0 Xxxxxxxx Xxxxx
Xxxxxxxxx
Blaauberg
15.2. 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.
15.3. Either party may by notice to the other party change the
physical address chosen as its domicilium citandi et
executandi to another physical address where postal delivery
occurs in the Republic of South Africa or its postal address
or its telefax number, provided that the change shall become
effective on the 7th business day from the deemed receipt of
the notice by the other party.
15.4. Any notice to a party -
15.4.1. sent by prepaid registered post (by airmail if
appropriate) in a correctly addressed envelope to
it at an address chosen as its domicilium citandi
et executandi to which post is delivered shall be
deemed to have been received on the 7th business
day after posting (unless the contrary is proved);
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15.4.2. delivered by hand to a responsible person during
ordinary business hours at the physical address
chosen as its domicilium citandi et executandi
shall be deemed to have been received on the day
of delivery; or
15.4.3. sent by telefax to its chosen telefax number
stipulated in clause 15.1, shall be deemed to have
been received on the date of despatch (unless the
contrary is proved).
15.5. Notwithstanding anything to the contrary herein contained a
written notice or communication actually received by a party
shall be an adequate written notice or communication to it
notwithstanding that it was not sent to or delivered at its
chosen domicilium citandi et executandi.
16. WHOLE AGREEMENT
16.1. This agreement constitutes the whole agreement between the
parties relating to the subject matter hereof.
16.2. No amendment or consensual cancellation of this agreement or
any provision or term hereof or of any agreement, xxxx of
exchange or other document issued or executed pursuant to or
in terms of this agreement and no settlement of any disputes
arising under this agreement and no extension of time,
waiver or relaxation or suspension of or agreement not to
enforce or to suspend or postpone the enforcement of any of
the provisions or terms of this agreement or of any
agreement, xxxx of exchange or other document issued
pursuant to or in terms of this
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agreement shall be binding unless recorded in a written
document signed by the parties. Any such extension, waiver
or relaxation or suspension which is so given or made shall
be strictly construed as relating strictly to the matter in
respect whereof it was made or given.
16.3. No extension of time or waiver or relaxation of any of the
provisions or terms of this agreement or any agreement, xxxx
of exchange or other document issued or executed pursuant to
or in terms of this agreement, shall operate as an estoppel
against any party in respect of its rights under this
agreement, nor shall it operate so as to preclude such party
thereafter from exercising its rights strictly in accordance
with this agreement.
16.4. To the extent permissible by law no party shall be bound by
any express or implied term, representation, warranty,
promise or the like not recorded herein, whether it induced
the contract and/or whether it was negligent or not.
17. COSTS
All the costs on an attorney and own client basis of XXXXXX XXXXXX &
XXXXXXXXX INC of and incidental to the preparation of this agreement
(including prior drafts and consultations) and the stamp duty shall be
borne by the purchaser. The costs of Xxxxxx-Xxxx shall be borne by the
seller.
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18. VALUE-ADDED TAX
18.1. The seller and the purchaser agree that the business is
disposed of as a going concern and for the purposes of
section 11(1)(e) of the Value-Added Tax Act, 1991, agree
that the business will be an income-earning activity on the
implementation date and that the assets which are necessary
for carrying on such business have been disposed of by the
seller to the purchaser in terms of this agreement.
18.2. If, notwithstanding the aforegoing, value-added tax is
payable in respect of any of the assets sold in terms
hereof, same shall be borne and paid by the purchaser.
19. JOINT AND SEVERAL LIABILITY OF THE SELLER
The liability of the persons comprising the seller vis-a-vis the
purchaser shall be joint and several.
20. JOINT AND SEVERAL LIABILITY OF THE PURCHASER
The liability of the persons comprising the purchaser vis-a-vis the
seller shall be joint and several.
21. EXECUTION IN COUNTERPARTS
This agreement may be executed in several counterparts, each of which
shall together constitute one and the same instrument.
SIGNED by the parties and witnessed on the following dates and at the following
places respectively:
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DATE PLACE WITNESS SIGNATURE
1.______________________
9/11/99 Cape Town /s/ [ILLEGIBLE]
------- ------------ -------------------------
2.______________________ VIRTUAL SUPPORT CC
1.______________________
------- ------------ -------------------------
2.______________________ XXXXXXXXXX.xxx, Inc. USA
1.______________________
9/11/99 Cape Town /s/ XXXXX XXXXXX XXXXXX
------- ------------ -------------------------
2.______________________ XXXXX XXXXXX XXXXXX
1.______________________
9/11/99 Cape Town /s/ XXXXXXX XXXXX XXXXXXXXX
------- ------------ -------------------------
2.______________________ XXXXXXX XXXXX XXXXXXXXX
1.______________________
9/11/99 Cape Town /s/ AARDT DAVIDTZ
------- ------------ -------------------------
2.______________________ AARDT DAVIDTZ
1.______________________
9/11/99 Cape Town /s/ XXXXX XXXX
------- ------------ -------------------------
2.______________________ XXXXX XXXX
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ANNEXURE A - DESIGNATED FIXED ASSETS
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ANNEXURE B - CONTRACTS (INCLUDING LIST OF EMPLOYEES)
1. Xxxxxx, Xxxxxx 082 822 0821 00 Xxxx Xxxx, Xxxxxxxxxx
2. Xxxxxx, Xxxxxx 439 9819
082 772 3195 DS Normanhurst, 000 Xxxx Xxxxx
Xxxx, Xxx Xxxxx
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