EXHIBIT 10.7
EXECUTION COPY
SALE OF BUSINESS AGREEMENT
between
PYRAMID FREIGHT (PROPRIETARY) LIMITED
and
UTi SOUTH AFRICA (PROPRIETARY) LIMITED
[WWB LOGO]
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2.
TABLE OF CONTENTS
PAGE
1. Definitions and interpretation 3
2. Introduction 10
3. Sale 10
4. Purchase consideration and payment 11
5. Contracts 11
6. Collection of Debtors 13
7. Completion 15
7.2 delivery 15
7.3 cession and delegation 15
7.4 risk and benefit 15
7.5 ownership 15
7.6 registration of vehicles, Intellectual Property
and Trade Marks 16
8. Liabilities 16
9. Transferred Employees 16
10. Benefit matters and pension funds 19
11. Publication in terms of Insolvency Act 19
12. Value-Added Tax 19
13. Breach 20
14. Arbitration 21
14.2 identity of arbitrator 22
14.3 venue 23
14.4 procedures 23
14.6 costs and expenses 24
14.7 final and binding effect 24
14.8 consent 24
14.9 severability 24
14.10 injunction relief 24
15. Confidentiality 25
16. Miscellaneous matters 25
16.1 addresses and notice 25
16.2 entire contact 26
16.3 no representations 26
16.4 variation, cancellation and waiver 27
16.5 indulgences 27
16.6 cession 27
16.7 applicable law 27
16.8 costs 27
16.9 counterparts 28
Schedule 1 Schedule of Retained Assets 29
3.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement and in the schedules to this Agreement:
1.1.1 clause headings are for convenience and are not to be used in its
interpretation;
1.1.2 unless the context indicates a contrary intention an expression
which denotes:
1.1.2.1 any gender includes the other genders;
1.1.2.2 a natural person includes a juristic person and vice versa;
1.1.2.3 the singular includes the plural and vice versa;
1.1.3 a reference to a "person" includes a reference to an individual,
partnership, company, close corporation, other body corporate, a
trust, an unincorporated association or a joint venture and that
person's legal personal representatives and successors.
1.2 In this Agreement, and in any schedules to this Agreement, the
following expressions bear the meanings assigned to them below and
cognate expressions bear corresponding meanings:
1.2.1 "ACCOUNTS" - means the accounting packs of the
Businesses prepared by the Seller and
reviewed by Deloitte & Touche for the
period ending 31 July 2004, a copy of
which shall be furnished to the Purchaser
as soon as possible after they have been
reviewed by Deloitte & Touche;
1.2.2 "BRANCH FUNDING" - means all obligations or liabilities,
whether actual or contingent, of the
Seller in or in connection with the
funding provided by Pyramid Freight
4.
(Pty) Limited (a company registered and
incorporated in the British Virgin Islands
under registration number 530960) to the
Seller, on the Effective Date, as
reflected in the Accounts;
1.2.3 "BUSINESSES" - means the following divisions of business
carried on by the Seller each as a going
concern, using the Business Assets and
including the Transferred Liabilities:
1.2.3.1 UTi International Division;
1.2.3.2 Sun Couriers Division;
1.2.3.3 Mounties Division; and
1.2.3.4 RDS Division;
1.2.4 "BUSINESS ASSETS" - means all the assets owned or used by the
Seller in or in connection with the
Businesses at the Effective Date but
excluding the Retained Assets, including
without limitation:
Business Information;
Cash;
Contracts;
Debtors;
Goodwill;
Intellectual Property;
Licences;
Moveable Assets; and
Trade Marks;
5.
1.2.5 "BUSINESS DAY" - means any day other than a Saturday,
Sunday or statutory public holiday in the
Republic of South Africa;
1.2.6 "BUSINESS INFORMATION"
- means all information and related books
and records used by the Seller in the
operation of the Businesses on the
Effective Date, including, but not limited
to, files, computer discs and tapes,
invoices, credit and sales records,
personnel records, customer lists
(including customer contracts and
agreements), supplier lists (including
supplier cost information), manuals,
drawings, business plans and other plans
and specifications, accounting books and
records, sales literature, current price
lists and discounts, promotional signs and
literature, and marketing and sales
programs;
1.2.7 "CASH" - means any cash-on-hand or bank deposits
due to the Seller in relation to the
Businesses on the Effective Date, as
reflected in the Accounts but less the
Surplus Cash;
1.2.8 "COMPLETION" - means completion of the transactions and
matters referred to in clause 7 of this
Agreement;
1.2.9 "COMPLETION DATE" - means the Signature Date or such later
date as the Parties may agree to in
writing;
6.
1.2.10 "CONTRACTS" - means those contracts entered into
before the Effective Date by or on behalf
of the Seller in connection with the
Businesses which remain to be performed
(in whole or in part) on the Effective
Date;
1.2.11 "CREDITORS" - means the sums due by the Seller to
trade creditors of the Businesses on the
Effective Date, as reflected in the
Accounts;
1.2.12 "DEBTORS" - means the claims of the Seller against
all persons who are indebted to the Seller
in relation to the Businesses in the
normal course of business on the Effective
Date, as reflected in the Accounts;
1.2.13 "EFFECTIVE DATE" - means 1 August 2004;
1.2.14 "GOODWILL" - means the goodwill of the Businesses;
1.2.15 "INTELLECTUAL PROPERTY" - means all inventions, patents, designs,
copyright, and domain names owned by the
Seller on the Effective Date and used in
relation to the Businesses, whether
registered or unregistered, and including
all applications and rights to apply for
those rights;
1.2.16 "LICENCES - means all approvals, permits and
licences held by the Seller in connection
with the Businesses on the Effective Date,
including those received from any
governmental,
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provincial, local or other regulatory
bodies;
1.2.17 "LOAN AGREEMENT" - means the loan agreement entered into or
to be entered into between the Seller and
the Purchaser in terms of which the Seller
lends to the Purchaser the amount of R680
000 000;
1.2.18 "MOVEABLE ASSETS" - means the tangible property owned or
used by the Seller in relation to the
Businesses as at the Effective Date;
1.2.19 "PARTIES" - means the Seller and the Purchaser;
1.2.20 "PURCHASER" - means UTi South Africa (Proprietary)
Limited a private company with limited
liability registered and incorporated in
accordance with the laws of the Republic
of South Africa under registration number:
2004/015747/07;
1.2.21 "RETAINED ASSETS" - means those assets owned or used by the
Seller in or in connection with the
Businesses at the Effective Date which are
retained by the Seller and are not sold or
transferred by the Seller to the Purchaser
namely those assets listed in SCHEDULE 1
to the Agreement;
1.2.22 "RETAINED LIABILITIES" - means the obligations or liabilities of
the Seller in or in connection with the
Businesses at the Effective Date which are
retained by the Seller and
8.
are not sold or transferred by the Seller
to the Purchaser namely:
1.2.22.1 Branch Funding; and
1.2.22.2 Tax in respect of profits;
1.2.23 "SELLER" - means Pyramid Freight (Proprietary)
Limited, a company with limited liability
registered and incorporated in the British
Virgin Islands and registered as an
external company in accordance with the
laws of the Republic of South Africa under
registration number 1987/003687/10;
1.2.24 "SIGNATURE DATE" - means the date on which this Agreement
is signed by both Parties and if it is
signed on different dates, then the last
of those dates;
1.2.25 "SURPLUS CASH" - means an amount of R11 709 280 being the
amount of cash-on-hand or bank deposits
due to the Seller in relation to the
Businesses in excess of that required by
the Businesses for operating purposes;
1.2.26 "TAX IN RESPECT OF PROFITS" - means all obligations or liabilities,
whether actual or contingent of the Seller
in or in connection with the tax payable
by the Seller on the profits of the
Businesses at the Effective Date, as
reflected in the Accounts;
1.2.27 "TRADE MARKS" - means the trade marks owned or used in
connection with the Businesses at the
Effective Date,
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whether registered, pending registration
or unregistered;
1.2.28 "TRANSFERRED EMPLOYEE" - means any present employee of the Seller
whose contract of employment is
transferred to the Purchaser pursuant to
clause 9.1 of this Agreement;
1.2.29 "TRANSFERRED LIABILITIES" - means all obligations and liabilities of
the Seller in connection with the
Businesses at the Effective Date but
excluding the Retained Liabilities and
specifically including without limitation:
1.2.29.1 the Creditors;
1.2.29.2 those obligations and liabilities of the
Seller under the Contracts which relate
to periods on or after the Effective
Date;
1.2.29.3 the liability to Transferred Employees
for accrued leave as at the Effective
Date;
1.2.29.4 those obligations and liabilities of the
Seller under contracts of employment of
the Transferred Employees which relate
to periods on or after the Effective
Date.
1.3 Words and expressions defined in any clause shall, for the purposes of
that clause, bear the meaning assigned to such words and expressions in
such clause.
1.4 If any provision is a substantive provision conferring rights or
imposing obligations on any Party, notwithstanding that it is only in
the definition clause,
10.
effect will be given to it as if it were a substantive provision in the
body of the Agreement.
1.5 In this Agreement and the schedules the word "Agreement" refers to this
Agreement and the words "clause" and "Schedule" refer to clauses of and
schedules to this Agreement.
1.6 The schedules to this Agreement comprise part of this Agreement and
shall be deemed to be incorporated herein.
2. INTRODUCTION
2.1 The Seller carries on the Businesses more fully described in clause
1.2.3 above.
2.2 The Parties wish to record in writing the terms and conditions upon
which the Seller sells to the Purchaser the Businesses, each as a going
concern.
3. SALE
3.1 On and with effect from the Effective Date, the Seller sells to the
Purchaser, which purchases the Businesses, each as a going concern. The
sale of the Businesses constitutes an indivisible transaction and
comprises the acquisition by the Purchaser of the Business Assets but
excluding the Retained Assets, which shall remain the property of the
Seller.
3.2 The Seller shall sell the Business Assets as beneficial owner free from
all liens or encumbrances and the risk in and benefit of the Business
Assets shall be deemed to have vested in the Purchaser with effect from
the Effective Date. Accordingly, the Seller shall retain the profits
and losses of the Businesses at the Effective Date and the Purchaser
will be entitled to the profits and losses of the Businesses from the
Effective Date.
3.3 The acquisition of the Businesses will include the assumption by the
Purchaser, subject to the provisions of this Agreement, of the
Transferred Liabilities but excluding the Retained Liabilities which
shall remain the responsibility of the Seller.
3.4 Nothing in this Agreement shall operate to transfer to the Purchaser
any asset which is not a Business Asset.
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3.5 Insofar as the Businesses of the Seller have been conducted by the
Seller since the Effective Date, the Seller will be deemed to have been
conducting such Businesses as agent for and at the risk of the
Purchaser. All profits accruing from the conduct of the Businesses
since the Effective Date will accrue to the Purchaser, and the
Purchaser shall bear all losses suffered by the Businesses from the
Effective Date.
3.6 The Purchaser shall reimburse to the Seller any income tax payable by
the Seller in respect of the conduct of the Businesses after the
Effective Date, payment to be made at least 7 days before the date on
which the Seller is required to pay the tax concerned.
4. PURCHASE CONSIDERATION AND PAYMENT
4.1 The purchase consideration payable by the Purchaser to the Seller for
the Businesses, in addition to the assumption of the Transferred
Liabilities, is the amount of R680 000 000. The purchase consideration
will be allocated amongst the Business Assets as follows: as to the
tangible assets their net asset value as at the Effective Date and the
balance of the purchase consideration to Goodwill.
4.2 The purchase consideration will be settled by the Purchaser crediting a
claim on loan account in favour of the Seller in its accounting records
in an amount of R680 000 000. The terms of repayment and interest rate
of the loan are set out in the Loan Agreement.
5. CONTRACTS
5.1 The Purchaser will take over and acquire for its own account with
effect from the Effective Date the benefit and the burden of the
Contracts.
5.2 The Purchaser will ensure that all liabilities and obligations of the
Seller arising under the Contracts taken over by it pursuant to this
clause 5 and which relate to periods after the Effective Date will be
performed and completed by the Purchaser, and the Purchaser indemnifies
the Seller against all actions, proceedings, costs, damages, claims,
demands and liabilities (including without limitation all expenses
incurred with lawyers and other consultants) in respect of any act or
omission on the part of the Purchaser, its
12.
employees, agents or representatives in relation to the Contracts on or
after the Effective Date.
5.3 As far as the Contracts are concerned, nothing in this Agreement:
5.3.1 shall require the Purchaser to perform any obligation falling due
for performance or which should have been performed before the
Effective Date; or
5.3.2 shall make the Purchaser liable for any act, neglect, default or
omission in respect of any of the Contracts prior to the Effective
Date.
5.4 The Seller hereby indemnifies the Purchaser against all actions,
proceedings, costs, damages, claims, demands and liabilities (including
without limitation all expenses incurred with lawyers and other
consultants) in respect of any act or omission on the part of the
Seller, its employees, agents or representatives in relation to the
Contracts before the Effective Date.
5.5 Insofar as the benefit or burden of any of the Contracts cannot
effectively be assigned to the Purchaser except with the consent to the
assignment from the other party to the contract:
5.5.1 the Seller shall use reasonable endeavours to procure the consent
to such assignment;
5.5.2 until the Contract is assigned the Seller shall hold it in trust
for the Purchaser absolutely and the Purchaser shall as the
Seller's sub-contractor (if such sub-contracting is permissible and
lawful under the Contract) perform all the obligations of the
Seller under the Contract to be discharged after the Effective Date
and shall be entitled to all the benefits in respect thereof with
effect from the Effective Date, and to the extent that it lawfully
can perform such obligations shall indemnify the Seller against all
actions, proceedings, costs, damages, claims and demands in respect
of any failure on the part of the Purchaser to perform those
obligations; and
5.5.3 until the Contract is assigned the Seller shall (so far as it
lawfully may) give all reasonable assistance to the Purchaser to
enable the Purchaser to enforce its rights under the Contract as
the case may be.
13.
5.6 The Seller shall use its best endeavours to procure that the Purchaser
shall be entitled to occupy any leased premises from which the
Businesses are now conducted (including the premises of the branches of
the Businesses), either pursuant to an assignment of the leases in
question or (if the Seller cannot procure an assignment) in terms of
sub-leases; provided that where any premises are to be sub-let the
terms of the sub-leases shall be the same, mutatis mutandis, as those
applicable to the principal lease between the lessor and the Seller.
5.7 The Purchaser agrees to take over the premises in the condition in
which they are on the Effective Date; and the Seller shall have no
liability to any person to repair the premises or to restore the
premises to their former condition. The Seller warrants that it is not
aware of any material default in any of its obligations in relation to
any premises on which the Businesses are conducted in relation to the
condition of the premises or any other matter connected with leases of
those premises.
5.8 If any lessor lawfully refuses to agree to the assignment of the leases
to the Purchaser or to the sub-letting of the premises to the
Purchaser, the Parties will co-operate with one another in any such way
as may be lawful and to their respective best advantage in order to
achieve the intent and object of this Agreement and, in particular, the
intent and object of this clause 5.
6. COLLECTION OF DEBTORS
6.1 It is recorded that the Seller has sold the Debtors to the Purchaser
subject to the provisions of 6.5 and 6.6.
6.2 The Seller warrants that the Purchaser will recover the full amounts of
the debts from the relevant Debtors within a period of 6 months from
the Effective Date, but subject to the provisions of 6.3.
6.3 The Purchaser undertakes to use its best endeavours to collect the full
amount of the debts (insofar as they have not yet been collected) as
soon as possible after it has taken control of the Businesses, and in
order to achieve this objective it shall be obliged, inter alia, to
send out statements of account to the relevant Debtors not less than
once a month. If so required by the
14.
Seller, the Purchaser shall give satisfactory proof to the Seller that
the Purchaser has fulfilled its obligations in terms of this 6.3.
6.4 If a customer of one of the Businesses carried on by the Seller who
owes an amount which forms part of the debts, purchases service from
that Business carried on by the Purchaser after it has taken control of
the Businesses then, unless that customer otherwise directs either
expressly or by implication, or such payment is made in respect of a
particular debt, all payments made by the customer shall be allocated,
as between debts owed by such customer prior to the date of taking over
control and debts contracted by that customer after the date of taking
over control, in the first instance to the debts owed by the customer
prior to the taking over of control.
6.5 Subject to the provisions of 6.7 and 6.8, and subject to compliance by
the Purchaser with its obligations in terms of 6.3, the Seller
undertakes to pay to the Purchaser on the expiry of the period of 6
months from the Effective Date an amount equal to the difference
between the full value of the debts and the aggregate of the debts
collected by the Purchaser during the period of 6 months. Against
payment of such amount by the Seller to the Purchaser, the Purchaser
shall re-cede the relevant uncollected debts to the Seller.
6.6 Notwithstanding anything to the contrary contained in 6.5, the Seller
shall not be liable for any amount which was not collected in respect
of the debts by reason of a settlement discount accorded to the
relevant debtor in the ordinary, regular and normal course of business.
6.7 Having regard to the provisions of 6.5 it is recorded that the sale of
the debts has been effected on the basis that the sale of each debt is
subject to the resolutive condition that such sale will be deemed to be
cancelled if the debt concerned has not been fully recovered within the
period of 6 months referred to in 6.5.
6.8 In those cases where the Purchaser's rights in terms of 6.5 are subject
to compliance by the Purchaser with its obligations in terms of 6.3,
the material failure by the Purchaser to comply with those obligations
in respect of any particular debt shall operate to discharge the Seller
from its obligations (in terms of 6.5) in respect of that debt only.
15.
7. COMPLETION
7.1 The Completion of the transactions contemplated in this Agreement, shall
take place at the offices of the Seller on the Completion Date or such
other date or place as the Parties may agree to in writing.
7.2 DELIVERY
At Completion the Seller shall:
7.2.1 hand the Purchaser control of the Businesses and the Business
Assets; and
7.2.2 deliver to the Purchaser at the premises at which they are situated
all Business Assets (excluding assets in transit, which will be
delivered on receipt) together with such documents, duly completed,
as may be necessary to complete the sale and purchase of the
Business Assets and vest title to the Business Assets in the
Purchaser including without limitation in respect of all vehicles
sold to the Purchaser, all such documents as may be necessary to
enable the Purchaser to transfer, at the cost of the Purchaser, the
registration of ownership of such vehicles into the name of the
Purchaser.
7.3 CESSION AND DELEGATION
The Seller shall be deemed to have ceded and delegated to the Purchaser on
the Effective Date, the rights and obligations under the Contracts which
have been acquired by the Purchaser in terms of the provisions of this
Agreement.
7.4 RISK AND BENEFIT
The risk in, and benefit of, each of the Businesses and the Business
Assets shall be deemed to have passed to the Purchaser on the Effective
Date.
7.5 OWNERSHIP
Ownership in respect of the Businesses and all Business Assets shall pass
to the Purchaser on the Completion Date.
16.
7.6 REGISTRATION OF VEHICLES, INTELLECTUAL PROPERTY AND TRADE MARKS
7.6.1 The Seller shall sign all such documents as may be reasonably
required by the Purchaser to enable the Purchaser to transfer, at
the cost of the Purchaser, the registration of ownership of the
vehicles sold to the Purchaser into the name of the Purchaser.
7.6.2 The Seller shall sign all such documents as may be produced by the
Purchaser which are necessary to procure the transfer of
registration of all the Intellectual Property and/or Trade Marks
into the name of the Purchaser, at the cost of the Purchaser, within
a reasonable time after the Completion Date.
8. LIABILITIES
8.1 The Seller shall be responsible for discharging all the Retained
Liabilities on the due date for payment thereof and hereby indemnifies and
holds the Purchaser harmless against all costs, claims, demands and
liabilities (including, without limitation, all expenses incurred with
lawyers and other consultants) in respect of any of those obligations or
any failure of the Seller to discharge them.
8.2 The Purchaser shall be responsible for discharging all the Transferred
Liabilities with effect from the Effective Date, on the due date for
payment thereof and the Purchaser hereby indemnifies and holds the Seller
harmless against all costs, claims, demands and liabilities (including,
without limitation, all expenses incurred with lawyers and other
consultants) in respect of any of those liabilities or any failure of the
Purchaser to discharge them.
9. TRANSFERRED EMPLOYEES
9.1 The Seller and the Purchaser acknowledge that because the sale of each of
the Businesses constitutes the transfer of the whole or part of a
business, trade or undertaking, as contemplated in section 197 of the
Labour Relations Act 66 of 1995 ("THE ACT"), the provisions of section
197(2) of the Act apply. Accordingly, and given the absence of agreement
as referred to in section 197(6) of the Act:-
17.
9.1.1 all the rights and obligations between the Seller, as the "old
employer", and each Transferred Employee as at the Effective Date,
(other than the rights and obligations in respect of any share
option or share incentive scheme applicable to the Transferred
Employees, which are governed by the conditions of the applicable
scheme), will continue in force as if they were rights and
obligations between the Purchaser, as the "new employer", and each
such Transferred Employee;
9.1.2 anything done before the transfer of the Businesses by or in
relation to the "old employer" will be considered to have been done
by or in relation to the "new employer";
9.1.3 the Purchaser as the "new employer" shall ensure continuity of
service to each Transferred Employee;
Without limiting the provisions of this clause 9.1, all rights, causes of
action, claims, debts, liabilities and obligations relating to the
employment or termination of employment of Transferred Employees with
respect to the period commencing on the Effective Date, including, but not
limited to, disability benefits and medical and life benefits will be
borne by the Purchaser in its capacity as the "new employer".
9.2 Notwithstanding the provisions of clause 9.1, it is recorded that it is
the Seller's and the Purchaser's intention (and the Seller and the
Purchaser agree) that as between them all liabilities arising out of
claims by Transferred Employees which were pending on the Effective Date
(or which arise after the Effective Date but where the cause of action
arose on or prior to the Effective Date) for any statutory, contractual or
other legal obligation of the Seller as employer to any such Transferred
Employees, will be borne by the Seller in respect of any such claims
instituted within a period of 12 months after the Effective Date, and not
thereafter. Such liabilities (referred to as "SELLER RESPONSIBILITIES"):
9.2.1 include, without limitation, liabilities for any claims for any
monies owing in respect of wages, salaries or overtime, accrued
bonuses, employer contributions to pension and provident funds,
medical aid schemes or other employee benefit plans, employer
contributions required by law (including unemployment insurance
deductions and all income tax
18.
deductible under SITE and PAYE provisions) and claims for redundancy
pay, unemployment compensation, unfair labour practices, unlawful or
unfair acts or omissions, workers' compensation (arising from
accidents, injury or illness), medical treatment received prior to
the Effective Date, hospitalisation or sick leave; but
9.2.2 exclude leave pay (in respect of leave accrued prior to the
Effective Date but not taken) which may be payable after the
Effective Date. The Purchaser and the Seller have agreed the value
of the relevant amounts, the purchase consideration has been
determined accordingly and provision has been made by the Purchaser
in its financial plans to pay these amounts as and when they become
due.
9.3 The Seller indemnifies the Purchaser and holds it harmless from and
against all loss, liability, damage or expense which the Purchaser may
suffer or incur in relation to any Seller Responsibility within a period
of 12 months after the Effective Date. The Purchaser shall bear sole
liability for any amount described in clause 9.2.2.
9.4 Subject to clause 9.2, in the event that a Transferred Employee institutes
legal proceedings against the Purchaser and the Seller in relation to any
alleged joint liability flowing from a change to the Transferred
Employee's terms and conditions of employment, the Purchaser indemnifies
the Seller and holds it harmless from and against all loss, liability,
damage or exposure which the Seller may suffer or incur as a result of
such legal proceedings.
9.5 In the event that the Purchaser deems it necessary to consult with the
unions of which any of the Transferred Employees are members, in relation
to the provisions of the transaction set out in this Agreement, the
Purchaser shall, prior to consulting the unions, consult with the Seller.
In this regard the Seller undertakes to reasonably co-operate with the
Purchaser in relation to all negotiations and consultations with any such
union.
9.6 The Seller and the Purchaser agree that the provisions of this clause 9
sets out their agreement as envisaged by Section 197(7)(b) of the Act and
that the terms hereof may be disclosed by the Seller to each of the
Transferred Employees.
19.
10. BENEFIT MATTERS AND PENSION FUNDS
The Purchaser shall procure that the Transferred Employees will be
entitled to participate in pension and/or provident and medical aid plans
or schemes and such other employee benefit plans on the whole not less
favourable to the Transferred Employees than the pension and/or provident
and medical aid plan or scheme and other employee benefit plans to which
such employees belonged at the Effective Date.
11. PUBLICATION IN TERMS OF INSOLVENCY ACT
11.1 The Parties agree that notice of this transaction will not be published as
contemplated in section 34 of the Insolvency Act 24 of 1936 ("THE
INSOLVENCY ACT").
11.2 The Seller indemnifies the Purchaser against any loss or damage which the
Purchaser may suffer as a result of notice of this transaction not being
published in terms of the Insolvency Act.
11.3 The Purchaser shall have no duty to resist any proceedings to attach or to
take possession of any of the Business Assets by any persons against whom
this transaction is void in terms of the Insolvency Act as a consequence
of notice of this transaction not being published as aforesaid; provided
that the Purchaser shall be obliged to give written notice to the Seller
as soon as it becomes aware of any such proceedings.
11.4 Should the Purchaser give notice to the Seller in terms of clause 11.3 and
should the Seller fail within 7 days of receipt by them of such notice to
procure that the Business Assets concerned are released from attachment or
are returned to the Purchaser, as the case may be, then without prejudice
to such other rights as the Purchaser may have against the Seller, the
Purchaser shall be entitled to pay the claims of any such third party in
order to procure the release of the Business Assets from attachment and
return thereof to the Purchaser and to recover the amounts so paid and all
the costs incurred in so doing, from the Seller on demand.
12. VALUE-ADDED TAX
12.1 The Parties record, and reciprocally warrant in favour of each other,
that-
20.
12.1.1 the Seller and Purchaser respectively was at the Effective Date and
will at the Completion Date be registered as a vendor in terms of
the Value Added Tax Act, 1991;
12.1.2 each of the Businesses is sold as a going concern;
12.1.3 each of the Businesses is an enterprise capable of separate
operation;
12.1.4 each of the Businesses constitute an income earning activity as
at the Effective Date;
12.1.5 the assets necessary to carry on each of the Businesses are being
disposed of by the Seller to the Purchaser in terms of this
Agreement; and
12.1.6 the purchase price is inclusive of value added tax at a rate of
0,0%
and that accordingly the Purchaser and the Seller fall within the ambit of
section 11(1)(e) of the Value Added Tax Act, 1991 so that the value added
tax payable is calculated at 0,0%.
12.2 If the sale of the Businesses in terms of this Agreement is subject to
value-added tax at a rate greater than zero, the Purchaser will pay to the
Seller the value-added tax at the prescribed rate on the purchase price on
presentation of the relevant tax invoice.
13. BREACH
13.1 If a Party breaches any material provision of this Agreement and remains
in breach for 14 days after written notice to that Party requiring that
Party to rectify that breach, provided that if the breach cannot
reasonably be remedied within 14 days, the Party in default shall be
entitled to an extension, not exceeding a further 90 days, to remedy the
breach, on condition that the Party in default provides evidence to the
reasonable satisfaction of the other Party within the 14 days that
effective steps to remedy the breach have been initiated and continues to
provide such evidence on an ongoing basis that the steps are being
expeditiously pursued;
13.2 the aggrieved party shall be entitled, at its option:
21.
13.2.1 to ▇▇▇ for immediate specific performance of any of the
defaulting party's obligations under this Agreement, whether or
not such obligation is then due; or
13.2.2 to cancel this Agreement, in which case written notice of the
cancellation shall be given to the defaulting party, and the
cancellation shall take effect on the giving of the notice. No Party
shall be entitled to cancel this Agreement unless the breach is a
material breach of a material term, and the remedy of specific
performance or damages would not adequately prevent the aggrieved
party from being prejudiced.
13.3 The aggrieved party's remedies in terms of this clause are without
prejudice to any other remedies to which the aggrieved party may be
entitled in law, including without limitation, the aggrieved party's
rights to claim damages.
14. ARBITRATION
14.1 REFERRAL TO ARBITRATION
Subject to 14.10, any dispute of whatever nature in respect of or arising
from or pursuant to this Agreement or its termination, including, without
limitation, any dispute as to:
14.1.1 the formation or existence of this Agreement;
14.1.2 the implementation of this Agreement;
14.1.3 the interpretation or application of any of the provisions of this
Agreement;
14.1.4 the respective rights and obligations of the Parties in terms of or
arising out of this Agreement or its breach or termination;
14.1.5 the validity, enforceability, rectification, termination or
cancellation or alleged cancellation, whether in whole or in part,
of this Agreement;
14.1.6 any documents furnished by any of the Parties to this Agreement;
22.
14.1.7 the amount of any damages which may be suffered under this Agreement
or which relate in any way to any matter affecting any of the
interests of all or any of the Parties in terms of this Agreement
shall, unless resolved among the Parties to the dispute within 30 days
following delivery of written notice by a Party to the other Party of the
nature of the dispute, be referred in the first instance at the request of
any of the Parties for mediation to the Managing Directors of the Seller
and the Purchaser. If the dispute has not been resolved through the
mediation of the Managing Directors within 10 Business Days of its being
referred to them then the dispute will be determined by arbitration in
accordance with the provisions of this clause 14.
14.2 IDENTITY OF ARBITRATOR
The arbitrator shall:
14.2.1 if the matter in issue is primarily an accounting, tax or financial
matter, be an independent auditor in public practice agreed upon
between the Parties to the dispute, or failing such agreement within
seven Business Days after any of the Parties has called for the
dispute to be referred to arbitration, nominated from amongst the
four largest accounting firms in South Africa by the President for
the time being of the South African Institute of Chartered
Accountants;
14.2.2 if the matter in issue is primarily a legal matter, be a practising
senior counsel or attorney of not less than 10 years standing, in
practice in Johannesburg or Sandton, agreed upon between the Parties
to the dispute or failing such agreement within seven Business Days
after any of the Parties has called for the dispute to be referred
to arbitration, nominated by the President for the time being of the
Law Society of the Northern Provinces or, if that body does not then
exist, the president for the time being of the body having
jurisdiction over attorneys practising in Johannesburg;
14.2.3 if the matter in issue does not fall within the scope of 14.2.1 or
14.2.2, be such independent person with appropriate knowledge,
experience or skill in relation to the matter in issue, agreed upon
between the Parties to the
23.
dispute or failing such agreement within seven Business Days after
any of the Parties has called for the dispute to be referred to
arbitration, nominated by the President for the time being of the
South African Institute of Chartered Accountants.
14.3 VENUE
The place of the arbitration will be Johannesburg or Sandton and the
language of the arbitration and of the arbitration award will be English.
14.4 PROCEDURES
In making a determination:
14.4.1 the arbitrator shall be bound to follow the general principles of
law, in regard to the substantive issue in question but no strict
rules of evidence or any legal formalities or procedures need be
observed or be taken into account by him in arriving at his
decision, provided, however, that natural justice shall apply;
14.4.2 the arbitrator shall be vested with entire discretion as to the
procedure and manner to be followed in arriving at his decision,
provided that any Party to the dispute shall be entitled to call any
witnesses whose evidence may be allowed in chief and who may be
cross-examined by or on behalf of any of the Parties; and
14.4.3 the arbitrator shall be entitled:
14.4.3.1 to investigate or cause to be investigated any matter, fact or
thing which he considers necessary or desirable in connection
with any issue in question and in particular to require the
Parties to the dispute to make full and complete discovery of
documents; and
14.4.3.2 to interview and question under oath any witnesses and any
executive or other employee of any of the Parties and/or any
director or officer thereof.
24.
14.5 TIME FOR DECISION
The Parties shall use their best endeavours to cause the decision of the
arbitrator to be given within 90 days after the referral to him.
14.6 COSTS AND EXPENSES
The arbitration award shall include a determination with respect to costs
and expenses of the arbitration.
14.7 FINAL AND BINDING EFFECT
The arbitrator's decision, including his decision in relation to costs,
shall be final and binding on all Parties affected thereby, shall be
carried into effect and may be made an order of any competent court at the
instance of any of the Parties.
14.8 CONSENT
This clause 14 constitutes an irrevocable consent by the Parties to any
proceedings in terms hereof and none of the Parties shall be entitled to
withdraw therefrom or to claim at any such proceedings that it is not
bound by this clause 14.
14.9 SEVERABILITY
This clause 14 is severable from the rest of this Agreement and shall
remain in effect even if this Agreement is terminated for any reason.
14.10 INJUNCTIVE RELIEF
The provisions of this clause 14 shall not preclude any Party from
instituting any proceedings for an injunction or an interdict or similar
relief or any action where urgent relief may be required in a court of
competent jurisdiction and unless immediate relief is obtained, the Party
will suffer irreparable harm and have no adequate remedy under this
Agreement or in law.
25.
15. CONFIDENTIALITY
15.1 The Parties to this Agreement acknowledge that each of them wishes to
retain strict confidentiality regarding the negotiations on the subject
matter and the contents of this Agreement.
15.2 Each Party therefore undertakes to the other to treat all negotiations,
the content and subject of this Agreement and any other matters relating
to this Agreement, in strict confidence and not to disclose any provisions
of this Agreement to any third party without the prior written consent of
the other Party, except where it is necessary to do so:
15.2.1 to enforce the provisions of this Agreement;
15.2.2 to comply with statutory obligations or with the requirements of a
competent government authority or registered stock exchange.
15.3 The obligation to maintain confidentiality shall not apply to information
which was in the public domain prior to its disclosure by a Party to this
Agreement.
16. MISCELLANEOUS MATTERS
16.1 ADDRESSES AND NOTICES
16.1.1 For the purposes of this Agreement, including the giving of notices
and the serving of legal process, the Parties choose domicilium
citandi et executandi ("DOMICILIUM") at:
16.1.1.1 the Seller: ▇ ▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇)
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇;
Telefax: 011 457 2606;
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇.
16.1.1.2 the Purchaser: ▇ ▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇)
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
Telefax: 011 457 2606;
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇.
26.
16.1.2 Any Party may at any time change that Party's domicilium by notice
in writing to another address, provided that the new domicilium
consists of or includes, a physical address at which process can be
served.
16.1.3 Any notice given in connection with this Agreement shall -
16.1.3.1 be delivered by hand; or
16.1.3.2 be sent be prepaid registered post; or
16.1.3.3 be sent by telefax (if the domicilium includes a telefax
number) to the domicilium chosen by the Party concerned.
16.1.4 A notice given as set out above shall be deemed to have been duly
given -
16.1.4.1 if delivered to a responsible person during the normal
business hours of the addressee, on the date of delivery; or
16.1.4.2 if sent by post, 14 days after posting; or
16.1.4.3 if sent by telefax with the transmitting machine printing a
report to the effect that the telefax has been received by the
receiving telefax machine, on the Business Day that the
telefax is transmitted, except that any telefax transmitted
after 16h30 shall be deemed to have been received on the
following Business Day.
16.2 ENTIRE CONTRACT
This Agreement contains all the express provisions agreed on by the
Parties with regard to the subject matter of the Agreement and the Parties
waive the right to rely on any alleged express provision not contained in
the Agreement.
16.3 NO REPRESENTATIONS
Neither Party may rely on any representation which allegedly induced that
Party to enter into this Agreement, unless the representation is recorded
in this Agreement.
27.
16.4 VARIATION, CANCELLATION AND WAIVER
No contract varying, adding to, deleting from or cancelling this
Agreement, and no waiver of any right under this Agreement, shall be
effective unless reduced to writing and signed by or on behalf of the
Parties.
16.5 INDULGENCES
No indulgence granted by a Party to the other Party shall constitute a
waiver of any of that Party's rights under this Agreement; accordingly,
that Party shall not be precluded, as a consequence of having granted such
indulgence, from exercising any rights against the other Party which may
have arisen in the past or which may arise in the future.
16.6 CESSION
Neither Party may cede that Party's rights or delegate that Party's
obligations under this Agreement without the prior written consent of the
other Party.
16.7 APPLICABLE LAW
This Agreement shall be interpreted and implemented in accordance with the
law of the Republic of South Africa.
16.8 COSTS
16.8.1 Each Party shall bear that Party's own legal and financial advisor's
costs of and incidental to the negotiation, preparation, settling,
signing and implementation of this Agreement.
16.8.2 Any costs, including attorney and own client costs, incurred by any
Party arising out of the breach by the other Party of any of the
provisions of this Agreement shall be borne by the Party in breach.
16.8.3 All costs (including, without limitation, attorney fees, stamp duty
and trade marks office charges, if any) incurred in the registration
or transfer of the Intellectual Property and/or Trade Marks and any
other Business Assets to the Purchaser shall be borne by the
Purchaser. The Purchaser shall have the full and sole responsibility
for procuring the registration of such transfers where appropriate,
and the Seller shall be obliged to give
28.
such reasonable assistance and co-operation as may be reasonably
required to the Purchaser in this regard.
16.9 COUNTERPARTS
This Agreement may be executed in one or more counterparts, by the parties
to this Agreement and once each party to this Agreement has signed a
Counterpart, each such Counterpart shall be considered an original and all such
Counterparts shall constitute one and the same instrument. Any such Counterpart
may be a facsimile transmission copy thereof.
SIGNED at Bedfordview on the 6 day of December 2004.
AS WITNESSES:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
FOR AND ON BEHALF OF PYRAMID FREIGHT
(PROPRIETARY) LIMITED, DULY AUTHORISED
THERETO
SIGNED at Johannesburg on the 6th day of December 2004.
AS WITNESSES:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
FOR AND ON BEHALF OF UTi SOUTH AFRICA
(PROPRIETARY) LIMITED, DULY AUTHORISED
THERETO
29.
SCHEDULE 1
(SEE CLAUSE 1.2.21)
SCHEDULE OF RETAINED ASSETS
IMMOVABLE PROPERTY DESCRIPTION
Rietfontein Property - Erf No. Rietfontein 63 IR situate at ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(Usufruct)
▇▇▇▇▇▇ Avenue Property - Erf No. 479 & 480 situate at Cnr Edelbert Street/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Florida ▇▇▇▇ Florida ▇▇▇▇
Leicester Road Apartment - Sectional Plan #: situate at 1508 Martinno, Leicester Road,
55151191 Bedfordview
UNLISTED INVESTMENTS
Portion 118 Rietfontein (Pty) Ltd - Reg No: 3055 shares, comprising 100% of the issued
1993/004128/07 (Bare Dominium) share capital
Chilltrac (Pty) Ltd - Reg No: 1986/005077/07 50 shares, comprising 50% of the issued share
capital
Co-ordinated Investment Holdings (Pty) Ltd - 50 shares, comprising 50% of the issued share
Reg No. 1998/003167/07 capital
Illanga Freight (Pty) Ltd - Reg No: 49 shares, comprising 49% of the issued share
1989/004006/07 capital
Sun Exco Investments (Pty) Ltd - Reg No: 5 shares, comprising 100% of the issued share
1987/000785/07 capital
30.
E-Deliveries (Pty) Ltd - Reg No: 1 share, comprising 100% of the issued share
1989/002174/07 capital
International Health Care Distributors (Pty) Ltd - beneficial shareholder of 6 800 002 shares,
Reg No: 1993/003736/07 comprising 100% of the issued share capital
Kite Logistics (Pty) Limited - Reg No. 50 shares, comprising 50% of the issued share
1997/000039/07 capital
CLAIMS ON LOAN ACCOUNT
Marine Link (Pty) Ltd - Reg No:
1980/002913/07
Chilltrac (Pty) Ltd - Reg No: 1986/005077/07
Portion 118 Rietfontein (Pty) Ltd - Reg
No: 1993/004128/07
Sun Couriers Share Incentive Trust - Reg No.
IT5508/1994
31.
SURPLUS CASH an amount of R11 709 280 being the amount of
cash-on-hand or bank deposits due to the
Seller in relation to the Businesses in excess of
that required by the Businesses for operating
purposes
ASSETS OF THE IT DIVISION including but not limited to tangible fixed assets
such as computer equipment, fixures and
fittings