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RENUNCIATION AGREEMENT
between
SVI HOLDINGS INC.
and
XXXXXX CONSOLIDATED INVESTMENTS LIMITED
and
SOFTLINE LIMITED
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TABLE OF CONTENTS
1. INTERPRETATION
2. INTRODUCTION 6
3. CONDITIONS PRECEDENT 7
4. RENUNCIATION 8
5. CONSIDERATION 9
6. ISSUE AND ALLOTMENT 9
7. WARRANTIES 10
8. BREACH 11
9. ARBITRATION 11
10. TRANSACTIONS INDIVISIBLE 13
11. STATEMENT OF INTENTION 13
12. PRESS ANNOUNCEMENTS 14
13. MISCELLANEOUS MATTERS 14
14. COUNTERPART 14
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1.
INTERPRETATION
1.1 In this agreement unless the context indicates a contrary intention -
1.1.1 "Agreement" means this agreement;
1.1.2 "Company" means Softline Limited, Registration Number 77/02304/06, a
company incorporated with limited liability in accordance with the Company
Laws of the Republic of South Africa;
1.1.3 "Closing Date" means 17 November 1997, or such later date after the
fulfilment of the conditions as may be agreed to in writing by the Parties,
which agreement shall not be unreasonable withheld;
1.1.4 "Conditions" means the Conditions Precedent referred to in clause 3;
1.1.5 "HCI" means Xxxxxx Consolidated Investments Ltd, Registration Number
73/07111/06, a company incorporated with limited liability in accordance with
the Company Laws of the Republic of South Africa;
1.1.6 "Parties" means HCI, SVI and the Company;
1.1.7 "Sale Agreement" means a written agreement between SVI and HCI entered
into at approximately the same time as this Agreement, relating to the sale by
SVI to HCI of 20 000 000 ordinary shares in the capital of the Company;
1.1.8 "Shares" means 22 130 448 fully paid up ordinary shares in the capital
of the Company ranking pari passu in all respects with each of the existing
issued ordinary shares in the capital of the Company, to be issued pursuant to
the Share Swap Agreement;
1.1.9 "Share Swap Agreement" means a written agreement between HCI and the
Company entitled "Share Swap Agreement" entered into at approximately the same
time as this Agreement;
1.1.10 "Subscription Agreement" means a written agreement between HCI and
the Company entered into at approximately the same time as this Agreement,
relating to the allotment and issue to HCI of 25 763 097 ordinary shares in
the capital of the Company;
1.1.11 "SVI" means SVI Holdings Inc., a corporation incorporated in
accordance with the laws of the State of Nevada, United States of America;
1.2 Words importing the singular shall include the plural and vice versa.
1.3 Words importing the masculine gender shall include the other genders
and
vice versa and natural persons shall include juristic persons and vice versa.
1.4 The heading to the paragraphs of this agreement are inserted for
purposes of reference only and shall not affect the interpretation of any
provisions to which they relate.
1.5 In the event that any definition in this clause 1 contains substantive
provisions, then such provisions shall be given effect to as if same were
incorporated into the main body of this agreement.
1.6 When any number of days are 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 official public holiday in South
Africa in which event the last day shall be the next succeeding day which is
not a Saturday, Sunday or official public holiday in South Africa.
1.7 The terms and conditions of this Agreement shall be binding upon, and
shall inure for the benefit of, the Parties and their permitted assigns and
successors-in-title.
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2. INTRODUCTION
2.1 In terms of the Share Swap Agreement the Company has, inter alia, agreed
to exchange the Shares for certain fully paid up shares in SVI.
2.2 SVI has agreed to renounce in favour of HCI all its right, title and
interest in and to the Shares upon the terms and subject to the conditions
contained herein.
2.3 In discharge of its obligations under the Share Swap Agreement, the
Company will allot, issue and deliver the Shares to HCI.
2.4 Accordingly the Parties agree as follows.
3. CONDITIONS PRECEDENT
3.1 This Agreement is subject to the fulfilment of the following Conditions
Precedent which may occur concurrently with consummation of this Agreement -
3.1.1 the conclusion of the Subscription Agreement and the due fulfilment of
the Conditions Precedent contained therein;
3.1.2 the conclusion of an agreement ("the SVI Subscription Agreement")
between SVI and the Company relating to the SVI shares for which the Company
is to subscribe as contemplated in the Share Swap Agreement in a form
satisfactory to SVI in its reasonable discretion;
3.1.3 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 relevant transactions and documentation flowing therefrom;
3.1.4 Exchange Control approval, to the extent necessary, having been
obtained.
3.2 If the Conditions in clause 3.1 are not fulfilled by 17 November 1997,
or such later date as shall have been agreed to in writing by the Parties
prior to that date, which agreement shall no be unreasonably withheld, this
Agreement shall be of no further force and effect and the Parties shall be
restored as near as possible to the position in which they would have been had
this Agreement not been entered into. The Parties shall not have any claims
against each other as a result of non-fulfilment of the Conditions except for
such claims, if any, that may result from a deliberate frustration by one of
them of the fulfilment thereof.
4. RENUNCIATION
Subject to the fulfilment of the Conditions, and against payment of the
consideration referred to in clause 5.1, SVI renounces in favour of HCI all
its right, title and interest in and to the Shares on the terms of this
Agreement.
5. CONSIDERATION
5.1 The consideration payable by HCI to SVI in respect of the renunciation
shall be an amount of ZAR35 408 717,00 (Thirty Five Million Four Hundred and
Eight Thousand Seven Hundred and Seventeen South African Rands).
5.2 Payment of the consideration shall be made to SVI in cash on the Closing
Date in the manner contemplated in clause 6 against delivery of the Shares to
HCI.
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6. ISSUE AND ALLOTMENT
At 10h00 on the Closing Date representatives of the Parties shall meet at the
offices of Fluxman Xxxxxxxxxx - Xxxxxxxx Xxxxxx to consummate the transactions
contemplated in this Agreement and at that meeting -
6.1 the Company shall -
6.1.1 allot, issue and deliver the Shares to HCI; and
6.1.2 execute and deliver to SVI the SVI Subscription Agreement referred to in
clause 3.1.2; and
6.2 HCI shall cause to be wired to the trust account of Xxxxxxx Xxxx
Seidenwurm & Xxxxx the US dollar equivalent of ZAR35 408 717,00 in immediately
available currency of the United States of America.
7. WARRANTIES
7.1 SVI warrants that -
7.1.1 the Shares shall rank pari passu in all respects with the existing
shares in the Company; and
7.1.2 the Shares shall be credited as fully paid.
7.2 Except for the warranties specifically given in this Agreement, SVI
gives no further warranties, express or implied, in respect of the Shares.
8. BREACH
Should either Party fail to comply with any of its obligations under this
Agreement and persist in such failure for a period of 14 (fourteen) days after
the date of receipt of written notice from the other Party ("the Innocent
Party") requiring it to carry out the obligation/s in question, then and in
such event, the Innocent Party shall be entitled (in addition to and without
prejudice to any other rights available at law) either to cancel this
Agreement or to enforce performance of the terms hereof, in either event
without prejudice to its right to claim and recover such damages as it may be
able to prove that it has sustained.
9. ARBITRATION
9.1 Should any dispute arise between the Parties in regard to -
9.1.1 the interpretation ;
9.1.2 the effect ;
9.1.3 a breach;
9.1.4 the termination of
9.1.5 any matter arising out of the termination;
of this Agreement, that dispute shall be decided by arbitration before a
single arbitrator in the manner set out in this clause 9.
9.2 The arbitrator shall be appointed by the Parties and failing agreement,
shall be appointed by the President of the Arbitration Foundation of South
Africa ("AFSA").
9.3 The arbitration shall be held at Sandton in the Republic of South
African in accordance with the rules of AFSA.
9.4 The arbitration shall be held as quickly as possible after it is
demanded with a view to it being completed within 90 (ninety) days after it
has been so demanded.
9.5 This clause is severable from the rest of the Agreement and shall,
therefore, remain in effect even if this Agreement is terminated.
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9.6 Notwithstanding the place of execution or performance of this Agreement
or the domicile of the Parties hereto, this Agreement and all modifications
and amendments hereof shall be governed by and construed under and in
accordance with the Laws of the Republic of South Africa.
10. TRANSACTIONS INDIVIBLE
All the transactions and arrangements contained in or contemplated by this
Agreement constitute a single and indivisible transaction.
11. STATEMENT OF INTENTION
The Parties undertake at all times to do all such things as may be open to
them and necessary for, or incidental to, the putting into effect or
maintenance of the terms, conditions and/or import of this Agreement, save
where any particular provision contained in this Agreement imposes upon any
one or other Party the obligation (to the exclusion of the other Party) to do
any act, matter or thing, in which event it shall not be the obligation of all
the Parties (by the inclusion of this clause in this Agreement) to procure the
doing of such act, matter or thing, but it shall only be the obligation of the
Party who is specifically directed thereto.
12. PRESS ANNOUNCEMENTS
None of the Parties shall publish to any third party the fact of or any
information concerning the conclusion of this Agreement without the written
consent of each of the others of them, save for any publication required by
the Johannesburg Stock Exchange (and then only after full consultation with
each of the other Parties) or save as required by law or to implement this
Agreement.
13. MISCELLANEOUS MATTERS
13.1 Postal address
13.1.1 Any written notice in connection with this agreement may be
addressed -
(i)in the case of HCI to :
address :P O Xxx 0000
Xxxx Xxxx
0000
telefax no :(021) 262-777
and shall be marked for the attention of :
Xxxx Xxxxxxx;
(ii)in the case of the Company to :
address :P O Box 76182
Wendywood, 2144
telefax no :(011) 444-7233
and shall be marked for the attention of :
Xxxx Xxxxxxx.
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(iii) in the case of SVI to :
address:c/o Softline Limited
P O Box 76182
Wendywood, 2144
telefax no :(011) 444-7233
and shall be marked for the attention of :
Xxxxx Xxxxxxxxx
[copy to Xxxxxx X Xxxxx
Xxxxxxx Xxxx Seidenwurm & Xxxxx
000 X Xxxxxx
Xxxxx 0000
Xxx Xxxxx
Xxxxxxxxxx, 00000
telefax (000) 000-0000]
13.1.2 Any Party may change that Party's address or telefax number for
this purpose to any other postal address or telefax number in the Republic of
South Africa, on written notice to the other Parties.
13.1.3 A notice sent to any Party at its address of telefax number
provided in terms of clause 13.1.1 or clause 13.1.2 shall be deemed to have
been duly given :
(i)7 (seven) days after posting, if posted by registered post to the
Party's address in terms of this sub-clause;
(ii)on delivery, if delivered to the Party's physical address in terms of
either this sub-clause or the next sub-clause dealing with service of legal
documents;
(iii)on despatch, if sent to the Party's then telefax number and confirmed by
registered letter posted no later than the next business day.
13.2 Address for service of legal documents
13.2.1 The Parties choose the following addresses at which documents in
legal proceedings in connection with this agreement may be served (i.e. their
domicilium citandi et executandi) :
(i)in the case of HCI:
address:5th Floor, 000 Xxxxxx Xxxxxxxx
Xx Xxxxxx'x Xxxx
Xxxx Xxxx.
(ii)in the case of the Company:
address:Softline House
00 Xxxxxxxx Xxxxxxxx
Xxxxxxxx Ext. 13
Sandton, 2148
(iii)in the case of SVI:
address:c/o Xxxxxx X Xxxxx
Xxxxxxx Xxxx Seidenwurm & Xxxxx, 000 X Xxxxxx, Xxxxx
0000, Xxx Xxxxx, Xxxxxxxxxx
00000
13.2.2 any Party may change that Party's address for this purpose to
another physical address in the Republic of South Africa, by notice in writing
to the other Parties.
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13.3 Entire contract
This agreement contains the entire understanding between the Parties and all
the express provisions agreed on by the Parties relating to the subject matter
of the agreement and the Parties waive the right to rely on any express
provisions not contained in this agreement.
13.4 Variation and cancellation
No agreement varying or cancelling this agreement shall be effective unless
reduced to writing and signed by or on behalf of all the Parties.
13.5 Waiver
No waiver by a Party of any right under this agreement shall be effective
unless reduced to writing and signed by or on behalf of such Party.
13.6 Indulgences
No indulgences granted by a Party shall constitute a waiver or abandonment 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 any other Party which may have arisen in the
past or which may arise in the future.
13.7 Cession
Except as specifically contemplated in this agreement, no Party may cede any
rights nor delegate any obligations in terms of this agreement without the
prior written consent of the other Parties.
13.8 Costs
13.8.1 Any costs, including attorney and own client costs, incurred by a
Party arising out of the breach by any other Party of any of the provisions of
this agreement shall be borne by the Party in breach.
13.8.2 Each Party shall bear that Party's own legal costs of and
incidental to the negotiating, drafting, settlement and preparation of this
Agreement.
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14. COUNTERPART
This Agreement may be executed in counterparts, each of which shall be deemed
an original and all of which together with constitute one document.
SIGNED at Johannesurg, South Africa, on this the 21st. day of October 1997.
for: XXXXXX CONSOLIDATED INVESTMENTS LIMITED
per: By: /s/ Xxxx Xxxxxxx
Director, duly authorised.
SIGNED at Johannesburg, South Africa, on this the 21st day of October 1997.
for: SOFTLINE LIMITED
per: By: /s/ Xxxx Xxxxxxx
Director, duly authorised.
SIGNED at Johannesburg, South Africa, on this the 21st day of October 1997
for: SVI HOLDING INC.
per: By: /s/ Xxxxx Xxxxxxxxx
Director, duly authorised.
