Exhibit 2.13
AGREEMENT
entered into between
VIRTUAL COLOUR PRINTING CC
(Registration No. CK97/43010/23)
and
XXXXXXXXXX.xxx, Inc. USA
(Registration No. 95/08558/07)
and
K XXXXXX
and
K XXXXXXXXX
and
A XXXX
TABLE OF CONTENTS
--------------------------------------------------------------------------------
CLAUSE NO. DESCRIPTION PAGE
--------------------------------------------------------------------------------
1 INTERPRETATION AND PRELIMINARY .................................. 2
2 CONDITIONS PRECEDENT ............................................ 7
3 SALE OF THE BUSINESS............................................. 7
4 PURCHASE PRICE................................................... 8
5 STOCKTAKING......................................................10
6 EMPLOYEES........................................................12
7 SECTION 34 ADVERTISEMENT.........................................14
8 DELIVERY.........................................................14
9 THE NAME.........................................................17
10 WARRANTIES.......................................................17
11 INDEMNITY........................................................22
12 RESTRAINT........................................................22
13 AGENT'S COMMISSION...............................................26
14 BREACH...........................................................26
15 DOMICILIUM CITANDI ET EXECUTANDI.................................27
16 WHOLE AGREEMENT..................................................29
17 COSTS............................................................30
18 VALUE-ADDED TAX..................................................31
19 JOINT AND SEVERAL LIABILITY OF THE SELLER........................31
20 JOINT AND SEVERAL LIABILITY OF THE PURCHASER.....................31
21 EXECUTION IN COUNTERPARTS........................................31
[LOGO]
ANNEXURE A - DESIGNATED FIXED ASSETS.......................................... 1
ANNEXURE B - CONTRACTS (INCLUDING LIST OF EMPLOYEES).......................... 1
[LOGO]
Page 2
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 digital and large format
printing, currently conducted by Virtual Colour Printing
CC;
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;
[LOGO]
Page 3
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 A 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
15 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;
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 pension fund for its
employees; which shall remain the sole
responsibility of the seller
[LOGO]
Page 4
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 the 31 January 2000 or such date
as mutually in writing between the parties;
1.2.10. "NASDAQ" means the NASDAQ Stock Market in the United States
of America;
1.2.11. "name" means Virtual Colour Printing CC and all such other
names under which the business is or has been conducted;
1.2.12. "premises" means the leased premises at which the business
is carried on, being 0xx Xxxxx, Xxxxxx Xxxx, 00X Xxxxxx
Xxxxxx, Xxxx Xxxx 0000;
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;
[LOGO]
Page 5
1.2.15. "seller" means Virtual Colour Printing CC a close
corporation duly incorporated in terms of the Close
Corporation Act of South Africa with registration number
CK97/43010/23;
1.2.16. "stock" means finished stock, work-in-progress and raw s
materials on hand in respect of the business as at the
effective date including stock-in-transit, 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 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;
[LOGO]
Page 6
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;
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;
[LOGO]
Page 7
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 Xxxx prior to 31 January 2000;
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 -
[LOGO]
Page 8
3.1. the goodwill thereof;
3.2. the exclusive right to use the name;
3.3. the fixed assets;
3.4. the stock;
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 of R836 1 78,00 (eight hundred nd
[LOGO]
Page 9
thirty six thousand one hundred and seventy eight rand) allocated as
follows -
4.1.1. the fixed assets R2 500,00 (two thousand five hundred rand);
4.1.2. the stock, R80 000,00 (eighty thousand rand);
4.1.3. the name, R91 219,00 (ninety one thousand two hundred and
nineteen rand);
4.1.4. goodwill, R83 459,00 (eighty three thousand four hundred
fifty nine rand).
4.1.5. debtors, R835 000,00 (eight hundred and thirty five thousand
rand);
4.1.6. cash at bank and on deposit, R131 000,00 (one hundred and
thirty one thousand rand);
4.1.7. creditors, R125 000,00 (one hundred and twenty five
thousand rand);
4.1.8. bank overdraft, R131 000,00 (one hundred and thirty one
thousand rand);
4.2. Any differences in net asset value at the effective date will be
reconciled with the values in 4.1. Any shortfall will be deducted
from the purchase price and any increase will be added to the
purchase price.
[LOGO]
Page 10
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;
4.3.2. by the purchaser paying, on the implementation date against
the delivery of the business to the seller, the sum of R836
178,00 (eight hundred and thirty six thousand one hundred and
seventy eight 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 implementation 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;
[LOGO]
Page 11
5.1.4. the stock reflected in the schedules referred to in clause
5.1.3 shall be valued -
5.1.4.1. in the case of undamaged finished stock, 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, at the
cost thereof to the seller;
5.1.4.3. 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. "cost to the seller" -
5.2.1.1. means the price paid by the seller to the supplier;
5.2.1.2. 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
[LOGO]
Page 12
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.
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 provident 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 pension 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 pension 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
[LOGO]
Page 13
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 s 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 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.
[LOGO]
Page 14
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 statements) within 90 (ninety) days.
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;
[LOGO]
Page 15
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 -
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 effective
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
[LOGO]
Page 16
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 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.
[LOGO]
Page 17
9. THE NAME
The seller shall be obliged to procure that within 30 (thirty) days of the
implementation date, its name is changed, so as to enable the purchaser to
register such name as a defensive name in its favour.
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,
[LOGO]
Page 18
nor will it have increased the salaries of employees during
that period other than normal or merit increases determined
in the 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. 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;
10.1.7. 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;
10.1.8. the business will not have generated a loss between
the period 1 June 1999 to the implementation date;
10.1.9. the seller has disclosed to the purchaser all facts and
circumstances material to this transaction and which are or
would be material to an independent purchaser of the
business;
10.1.10. 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
[LOGO]
Page 19
the seller aware of any circumstances which may give rise
thereto prior to the implementation date;
10.1.11. 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;
10.1.12. 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;
10.1.13. 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;
10.1.14. 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;
10.1.15. 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;
[LOGO]
Page 20
10.1.16. 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;
10.1.17. 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;
10.1.18. 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;
10.1.19. 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;
10.1.20. 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;
[LOGO]
Page 21
10.1.21. 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;
10.1.22. to the best of the seller's knowledge and belief there is no
infringement or suspected infringement of the rights to the
name;
10.1.23. 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;
10.1.24. 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);
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.
[LOGO]
Page 22
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 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
the this sub-clause -
[LOGO]
Page 23
12.1.1. "competitive activity" shall mean digital and large format
printing;
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 -
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;
[LOGO]
Page 24
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 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 -
[LOGO]
Page 25
12.3.2.1. each of the months falling within the restraint
period;
12.3.2.2. each magisterial district falling within the
territory;
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
[LOGO]
Page 26
share capital and the interest of the seller in that company is
solely that of a shareholder.
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 K
Xxxxxx, H Xxxxxxxxx, A Xxxx, 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
[LOGO]
Page 27
be reasonable in the circumstances provided that the party in breach
furnishes 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. THE PURCHASER
Physical: 0xx Xxxxx, Xxxxxx Xxxxx
Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxx
Postal: XX Xxx x0000
Xxxxxxx Xxxxxx
7905
Telefax: (021) 441 2287
15.1.2. THE 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
[LOGO]
Page 28
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
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
[LOGO]
Page 29
shall be deemed to have been received on the 7th business
day after posting (unless the contrary is proved);
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
[LOGO]
Page 30
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
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 cost of XXXXXX-XXXX will be paid by the
seller.
[LOGO]
Page 31
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.
[LOGO]
Page 32
SIGNED by the parties and witnessed on the following dates and at the following
places respectively:
DATE PLACE WITNESS SIGNATURE
---- ----- ------- ---------
1. __________________
9/11/99 Cape Town /s/ [ILLEGIBLE]
--------------------------
2. __________________ VIRTUAL COLOUR PRINTING CC
1. __________________
_____ ____________ --------------------------
2. __________________ XXXXXXXXXX.xxx Inc. USA
1. __________________
9/11/99 Cape Town
/s/ Xxxxx Xxxxxx
--------------------------
XXXXX XXXXXX XXXXXX
2. __________________
1. __________________
9/11/99 Cape Town /s/ Xxxxxxx Xxxxxxxxx
--------------------------
XXXXXXX XXXXX XXXXXXXXX
2. __________________
1. __________________
9/11/99 Cape Town /s/ Xxxxx Xxxx
--------------------------
XXXXX XXXX
2. __________________
[LOGO]
ANNEXURE A - DESIGNATED FIXED ASSETS
ANNEXURE B - LIST OF EMPLOYEES
1. Xxxxxx, Xxxxx 58 1565 13 Elsendal, Edgemead
2. February, Liezel 63 75052 00x Xxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxx
3. Xxxxxxx, Xxxx 082 496 4486
4. Xxxxx, Xxxxx 59 32448 0 Xxxx Xxxxxx, Xxxxxxxxxx
5. Xxxxxxxxx, Xxxxxx 391 1888 00 Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx Plain
6. Rabie, Morne 694 7020 00 Xxxxxxxxx Xxxx, Xxxxxxxxxxx
[LOGO]
