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Exhibit 1
SALE OF SHARES AGREEMENT
between
SOFTLINE HOLDINGS (PTY) LIMITED
(Registration Number 96/00595/07)
and
SVI HOLDINGS LIMITED
(Registration Number - N/A )
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Table of contents below
TABLE OF CONTENTS
No. Heading Page
1 THE PARTIES 1
2 INTRODUCTION 1
3 INTERPRETATION 1
4 CONDITIONS PRECEDENT 5
5 SALE 6
6 WARRANTIES 6
7 ADJUSTMENT TO THE PURCHASE CONSIDERATION 7
8 CLOSING 7
9 JURISDICTION 8
10 COUNTERPARTS 9
11 ARBITRATION 9
12 BREACH 10
13 DOMICILIA AND NOTICES 11
14 GENERAL 12
15 COSTS 12
16 SIGNATORIES 13
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1 THE PARTIES
1.1 SOFTLINE HOLDINGS (PTY) LIMITED
(Registration number 96/00595/07)
1.2 SVI HOLDINGS LIMITED
(Registration number - N/A )
2 INTRODUCTION
2.1 Pursuant to negotiations between the parties to this agreement and
HCI, the agreements were reached.
2.2 In terms of agreements reached between Softline, Anniston, Systems
and ▇▇▇▇▇:
2.2.1 Anniston acquired trade marks on 13 August 1997;
2.2.2 Clubdene acquired the business on 13 August 1997.
2.3 The parties to this agreement wish to record the sale of Clubdene
and Anniston to SVI Holdings and certain matters ancillary thereto, on
the terms and conditions detailed hereunder.
3 INTERPRETATION
3.1 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.
3.2 In this agreement, unless a contrary intention clearly appears:
3.2.1 words importing -
3.2.1.1 any one gender, include the other two genders;
3.2.1.2 the singular, shall include the plural and vice versa;
3.2.1.3 natural persons, include created entities and vice
versa;
3.3 The following expressions bear the meanings assigned to them below
and cognate expressions bear corresponding meanings -
3.3.1"The Acquisition of Trade Marks Agreement" means the agreement in terms
of which Anniston acquired trade marks on 13 August 1997 a copy of which
has been initialled by the parties for the purposes of identification.
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3.3.2"The Acquisition of Business Agreement" means the agreement
in terms of which Clubdene acquired the business on 13 August 1997 a
copy of which has been initialled by the parties for the purposes of
identification;
3.3.3"the agreements" means:
3.3.3.1 The Sale Agreement entered into between HCI and SVI
Holdings;
3.3.3.2 The Subscription Agreement entered into between HCI,
Softline and persons identified in Schedule I of that agreement;
3.3.3.3 The Renunciation Agreement entered into between SVI Holdings, HCI
and Softline all of which have been initialled by the parties to
this agreement for the purposes of identification.
3.3.3.4 The Stock Purchase Agreement and Joint Escrow Instructions entered
into between Claudav Holdings, BVI and Softline.
3.3.4"Anniston" means ANNISTON VENTURES LIMITED, a company incorporated in
the British Virgin Islands.
3.3.5"the Anniston equity" means the entire issued share capital in and loan
claims against Anniston;
3.3.6"Clubdene" means CLUBDENE LIMITED, a company incorporated in the United
Kingdom, registration number 3410598;
3.3.7"the Clubdene equity" means the entire issued share capital in and loan
claims against Clubdene;
3.3.8"the closing date" means the third business day after the fulfilment of
the conditions precedent detailed in each of the agreements;
3.3.9"the effective date" means 1 July 1997;
3.3.10"HCI" means ▇▇▇▇▇▇ CONSOLIDATED INVESTMENTS LIMITED, registration
number 73/0711106)
3.3.11"IBIS" means IBIS SERVICE LIMITED, a company registered in the United
Kingdom.
3.3.12"IBSL Group" means IBSL GROUP LIMITED, a company registered in the
United Kingdom.
3.3.13"▇▇▇▇▇" means ▇▇▇▇▇ ▇▇▇▇▇;
3.3.14"prevailing Rand/Pound exchange rate" means the spot rate of exchange
quoted by Nedbank, a division of Nedcor Limited, at 11h00 on the
relevant date for conversion for the sale by telegraphic transfer by
Nedbank, a division of Nedcor Limited, of an equivalent amount of
British pounds sterling against payment in South African Rands;
3.3.15"Softhold" means SOFTLINE HOLDINGS (PTY) LIMITED,
registration number 96/00595/07;
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3.3.16"Softline" means SOFTLINE LIMITED, registration number
77/02304/06;
3.3.17 SVI means SVI Holdings Incorporated, a corporation incorporated in
accordance with the laws of the state of Nevada, United States
of America;
3.3.18"the signature" date means the date upon which the last party hereto
signs this agreement;
3.3.19"systems for business" means a company incorporated in the British
Virgin Islands.
3.4 The definitions detailed in the acquisition of business agreement
and the acquisition of trade marks agreement shall, to the extent
necessary, be deemed to have been incorporated in this agreement,
mutatis mutandis.
3.5 If a provision in a definition is a substantive provision conferring
rights or imposing obligations on a party notwithstanding that it
is only in the definition clause, effect will be given to it as if it
were a substantive provision in the body of the agreement.
3.6 When any number of days is prescribed in this agreement, same
shall be a business day reckoned exclusively of the first and
inclusively of the last day.
3.7 Where figures are referred to in numerals and in words, if there
is any conflict between the two, the words shall prevail.
4 CONDITIONS PRECEDENT
4.1 The coming into force of this agreement is subject to the fulfilment of
the following conditions precedent:
4.1.1 the agreements being concluded;
4.1.2 the written approval of The Johannesburg Stock Exchange having been
obtained, insofar as may be necessary, for the transactions
referred to in this agreement and the transactions arising herefrom;
4.1.3 to the extent necessary, the South African exchange control
approval having been obtained;
4.1.4 the increase to the Softline share capital being implemented.
4.1.5 the increase to the SVIH share capital being implemented.
4.2 Each of the parties shall use its respective reasonable endeavours
to procure the fulfilment of the conditions precedent. If, despite such
endeavours, the conditions or any of them are not fulfilled (or waived)
on or before 17 November 1997 or by such extended date as the parties
hereto may agree to in writing, then the transaction referred to in this
agreement shall fail to come into existence and neither party shall have
any claim against the other party arising therefrom, save in
circumstances where a party deliberately frustrates the fulfilment of
any of the conditions or is in breach of this clause 4.
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4.3 To the extent that any party shall not have performed in terms of
this clause 4, the parties shall do whatever shall be requisite in order
to restore the status quo ante.
5 SALE
5.1 Softline sells to SVI Holdings, which purchases, the Anniston
equity and the Clubdene equity, with effect from the effective date, as
one indivisible transaction, subject to the terms and conditions set out
in this agreement.
5.2 The purchase consideration for the Anniston equity and the Clubdene
equity shall be 5 000 000 (five million) shares in the issued share
capital of SVI Holdings, which shares shall rank pari passu in all
respects with the existing SVI Holdings shares in issue and shall be
credited as fully paid.
5.3 The purchase consideration shall be payable on the closing date.
6 WARRANTIES
6.1 Softline makes no warranties save for the warranties and
representations set forth in Appendix "A" hereto in respect of the sale
of the Anniston equity or the Clubdene equity, and the parties record
that Anniston and Clubdene were shelf companies incorporated for the
purpose of acquiring the business pursuant to the Acquisition of
Business Agreement, and the trade marks pursuant to the Acquisition of
Trade Marks Agreement.
6.2 Save for the warranties and representations set out in Appendix
"A", and the warranties and representations contained in The Acquisition
of Trade Marks Agreement and The Acquisition of Business Agreement (and
which flow as a consequence of law to SVI) the sale of the Anniston
equity and the Clubdene equity shall be voetstoots.
7 ADJUSTMENT TO THE PURCHASE CONSIDERATION
It is recorded in clause 9.2 of the acquisition of trade marks agreement
that an additional purchase consideration shall be payable by Anniston to
Systems for Business. Notwithstanding the sale of the Anniston equity
as referred to in clause 5 above, Softline shall continue to fulfil the
obligation to pay such additional purchase consideration, provided that
where such additional purchase consideration, when added to the purchase
consideration of uk1,450,000 (one million four hundred and fifty thousand
pounds) (detailed in clause 7.1 of the Acquisition of Trade Marks
Agreement) exceeds an amount of R45.million (forty-five million rand)
(determined at the then prevailing rand/pound exchange rate), any such
additional amounts of money payable in terms of clause 9.2 of the
Acquisition of Trade Marks Agreement shall be payable by SVI Holdings at
the relevant time.
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8 CLOSING
At 17h00 South African time on the closing date, representatives of
Softline shall meet at the offices of Attorneys Fluxman ▇▇▇▇▇▇▇▇▇▇ -
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and representatives of SVI shall meet at the offices of
Attorneys ▇▇▇▇▇▇▇ ▇▇▇▇ Seidenwurm and ▇▇▇▇▇, at which meeting the parties
shall deliver to their respective attorneys the following:
8.1 deliver to SVI, in reasonably acceptable form, the share
certificates in respect of the Anniston equity, together with duly signed
and currently dated share transfer forms in respect thereof, which shall
be signed in blank as to transferee, and a written cession of any loan
account claims;
8.2 deliver to SVI, in reasonably acceptable form, the share
certificates in respect of the Clubdene equity, together with duly signed
and currently dated share transfer forms in respect thereof, which shall
be signed in blank as to transferee, and a written cession of any loan
account claims;
8.3 place under the control of SVI Holdings the books, assets, records
and documents of Anniston and Clubdene;
8.4 deliver to Softline, in reasonably acceptable form, the share
certificates in respect of SVI shares, together with duly signed and
currently dated share transfer forms in respect thereof, which shall be
signed in blank as to transferee, and a written cession of any loan
account claims.
8.5 Consequent upon the deliveries detailed in clauses 8.1 to 8.4, a
representative of each of the attorneys shall telephone the other them
and confirm receipt of the relevant documents whereupon the attorneys
shall hold the documents in trust and arrange for the delivery to each
other of the relevant documents.
9 JURISDICTION
This agreement shall be interpreted in accordance with the laws of the
Republic of South Africa and each of the parties consents to the
non-exclusive jurisdiction of the Witwatersrand Local Division of the
High Court of South Africa, or its successor at the relevant time, and
all appeal courts therefrom or any other court of competent jurisdiction,
where relief sought is of an urgent nature and where failure to obtain
such relief shall result in irreparable harm.
10 COUNTERPARTS
This agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective
when all counterparts have been signed by each of the parties.
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11 ARBITRATION
11.1 In the event of a dispute arising between either of the parties to
this agreement, the dispute shall be determined in accordance with the
arbitration procedures detailed in clause 11.2 below. Nothing in this
clause will prevent either party from approaching the High Court of South
Africa for relief of an urgent nature pending the institution of
proceedings in terms of this clause 11.
11.2 Save where otherwise provided in this agreement, any dispute
between the parties hereto in regard to:
11.2.1 the formation of; or
11.2.2 the interpretation of; or
11.2.3 the effect of; or
11.2.4 the carrying out of; or
11.2.5 any other matter arising out of or in connection with
this agreement, its breach or its termination shall be submitted
to and decided by arbitration.
11.3 The arbitration shall be held informally but otherwise under the
provisions of the Arbitration Laws, being Act No.43 of 1965, as amended
from time to time, or any Act passed in substitution for it, it being the
intention as far as possible that the arbitration shall be held and
concluded within 90 (ninety) days after it has been demanded. The
parties shall be entitled to be represented at the arbitration.
11.4 The arbitrator shall be an independent person agreed upon between
the parties to the dispute or, failing such agreement within 28 (twenty
eight) days of either party calling for agreement, an independent person
appointed by the President of The Law Society of the Transvaal at the
request of either party.
11.5 The decision of the arbitrator shall be final and binding upon the
parties and shall be carried into effect by them and made an order of any
competent court, including any decision regarding the costs of the
arbitration which the arbitrator shall be empowered to make.
12 BREACH
Save as otherwise provided in this agreement, should either party commit
a breach of any material provisions of this agreement and fail to remedy
such breach within 14 (fourteen) days after receiving written notice from
the aggrieved party requiring the defaulting party to do so, then the
aggrieved party shall be entitled, without prejudice to the aggrieved
party's other rights in law, to cancel this agreement or to claim
immediate specific perfordmance of all the defaulting party's
obligations, whether or not due for performance, in either event without
prejudice to the aggrieved party's right to claim damages.
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13 DOMICILIA AND NOTICES
13.1 The parties choose domicilium citandi et executand for all
purposes of the giving of any notice, the payment of any sum, the serving
of any process and for any other purpose arising from this agreement, as
follows:
Softhold: c/o ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Extension 13
Sandton
Fax: ▇▇▇-▇▇▇▇
SVI Holdings: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Seidenwurm and ▇▇▇▇▇
▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
13.2 Either party may at any time change its domicilium by notice in
writing.
13.3 Any notice given in connection with this agreement shall be
delivered by hand or sent by prepaid registered post or by telefax to
the domicilium chosen by the party concerned.
13.4 A notice given as set out above shall be deemed to have been duly
given if delivered on the date of delivery or, if sent by post 10 (ten)
days after posting, or if sent by telefax, on the day that the telefax
is transmitted.
14 GENERAL
14.1 No agreement varying, adding to, deleting from or cancelling this
agreement and no waiver, whether specifically, implicitly or by conduct
of any right to enforce any term of this agreement, shall be effective
unless reduced to writing and signed by or on behalf of the parties.
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14.2 This agreement constitutes the sole and exclusive agreement
between the parties relating to the transactions and matters recorded
herein and no warranties, representations or other terms and conditions
of whatsoever nature not expressly recorded herein, shall be of any
force or effect.
14.3 No indulgence, extension of time, relaxation or latitude which
either party ("the grantor") may ▇▇▇▇, ▇▇▇▇▇ or allow to the other party
("the grantee") shall constitute a waiver by the grantor of any of its
rights hereunder, and the grantor shall not thereby be prejudiced or
estopped from exercising any of its rights against the grantee which may
have then already arisen or which may thereafter arise.
15 COSTS
The costs of drafting and drawing this agreement and all attendances
incidental thereto shall be borne and paid in equal shares by the
parties hereto.
16 SIGNATORIES
THUS DONE AND SIGNED BY THE PARTIES AS FOLLOWS:
For: SOFTLINE HOLDINGS (PTY) LIMITED
Director, duly authorised
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Date: October ▇▇, ▇▇▇▇
▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
For: SVI HOLDINGS LIMITED
Director, duly authorised
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Date: October ▇▇, ▇▇▇▇
▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
