AGREEMENT OF SALE

AGREEMENT OF SALE

 

 

between

 

 

……………………………………..

Identity number: ………………………

“THE SELLER”

 

And

 

………………………………………

Identity number: …………………….

“THE PURCHASER”

 

And

 

…………………………..CC

(Registration No. ………………………………..)

“THE CORPORATION”

 

 

 

 

 

 

 

 

 

1. DEFINITIONS:

 

• “THE SELLER”

 

…………………, Identity number: …………… of ………………………….., with email address …………………@…………………………………

 

• “THE PURCHASER”

…………………………………………., Identity number: ………………… of ………………….. …………………………………………………….………………………………, with email address ………………….@………………………

 

• “THE CORPORATION”

 

…………………….. CC, Registration Number CK ………………., a Close Corporation duly incorporated according to the Close Corporations Laws of the Republic of South Africa with its registered office at ……………………… and trading as …………………..at …………………………………………………………………………….

 

• “THE BUSINESS”

The BUSINESS of the CORPORATION, conducted by the CORPORATION under the style of “……………………” at …………………………………………

 

• “THE PARTIES”

The parties to this Agreement and “PARTY” shall mean any one of them;

 

1.6     “THE BUSINESS PREMISES”  shall mean the premises from which the BUSINESS                     is operated at ……………………………………….

 

1.7     “MEMBER’S INTEREST”

 

The entire MEMBERS INTEREST in and loan account claims against the CORPORATION.

 

• “THE EFFECTIVE DATE

 

…………………………….

 

 

 

 

 

2. PREAMBLE:

 

The SELLER owns 100% of the member’s interest in the CORPORATION as well as all and any loan account claims against the CORPORATION and wishes to sell such member’s interest and loan account claims to the PURCHASER.

 

3. SALE OF MEMBER’S INTEREST:

 

3.1     The SELLER hereby sells to the PURCHASER who hereby purchases the MEMBER’S INTEREST with effect from the EFFECTIVE DATE.

 

3.2     On the EFFECTIVE DATE, the SELLER shall deliver the business to the PURCHASER against payment of the purchase price due as per Clause 4.1 below by making the BUSINESS PREMISES available for occupation by the PURCHASER and delivering possession of the assets sold to the PURCHASER.

 

 

4. PURCHASE PRICE

 

4.1     The purchase price payable by the PURCHASER to the SELLER for the MEMBER’S interest and the BUSINESS as a going concern shall be the sum of R …………………..  The purchase price must be paid to the SELLER on or before the EFFECTIVE DATE.

.

 

5. WARRANTIES

 

The SELLER warrants that:

 

5.1     She is entitled to dispose of her MEMBER’S INTEREST.

 

5.2     The assets owned by the CORPORATION and listed in the schedule annexed hereto

marked “A” will on the    EFFECTIVE DATE, be fully paid for and that they are unencumbered and not subject to any lien or right of retention of whatsoever nature;

 

5.3     In view of the fact that it is common cause that the PURCHASER’S husband has been employed by the CORPORATION for some time in a management position & he is fully aware of the CORPORATION’S assets and therefore the SELLER shall not be responsible for any latent defects and all of the assets are accordingly sold “voetstoets”.

 

5.4     The CORPORATION has no other liabilities and shall have none as at 1^st ………… 20…

 

6. LEASE AGREEMENT:

 

6.1     The PARTIES record that the PURCHASER has examined the existing lease agreement between the CORPORATION and its Landlord, and that he is aware of the terms and conditions applicable thereto.

 

 

 

7. SECURITY FOR THE PURCHASER’S OBLIGATIONS TO THE SELLER:

 

7.1     This Agreement is subject to the fundamental term that, notwithstanding the delivery by the SELLER to the PURCHASER of her 100% member’s interest in the CORPORATION, the SELLER’S title in and to and ownership of the member’s interest and the SELLER’S claims will not pass to the PURCHASER and ownership therein will remain vested in the SELLER until the full purchase has been paid in full in accordance with the provisions of this Agreement.

 

 

8. DELIVERY:

 

On or before 1 …………..20.., the SELLER shall deliver to the PURCHASER;

 

8.1     The existing founding statement, form CK1

 

8.2     The amended founding statement, form CK2 reflecting the PURCHASER as the sole       member.

 

9. BREACH:

 

9.1     Save as otherwise expressly set out in this agreement, should any party remain in breach for a period in excess of 7 days after dispatch of a written notice requiring such person to remedy such breach, the other party shall be entitled at its election to:

 

9.1.1       claim specific performance from the defaulting party; or

 

9.1.2     cancel the agreement;

 

without prejudice to his or her rights to claim damages.

 

 

10. CONSENT TO MAGISTRATES COURT JURISDICTION:

 

The parties hereto consent to the jurisdiction of the Magistrate’s Court for the purpose of instituting action or launching an application out of this agreement notwithstanding that the amount claimed or forming the subject matter of such a despite may otherwise exceed the jurisdiction of the Magistrate’s Court.

 

11. NOTICES AND DOMICILIA:

 

• The PARTIES choose as their respective domicilia citandi et executandi for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of this Agreement, the addresses set out in the “DEFINITIONS” portion of this agreement above i.e. paragraph 1.

 

• Any PARTY may change its domicilium to any other physical address or telefax number within the Republic of South Africa by written notice to the other PARTY to that effect. Such change of address will be effective 7 (seven) days after receipt of the notice of the change of

 

• All notices to be given in terms of this Agreement will be in writing and:

 

• if delivered by hand during business hours, be rebuttably presumed to have been received on the date of delivery;

 

• if sent by telefax during business hours be rebuttably presumed to have been received on the date of successful transmission of the telefax; any telefax sent after business hours or on a day which is not a business day will rebuttably be presumed to have been received on the following business day.

 

 

• Any notice in terms of this Agreement shall only be validly given if in written or printed paper based form. For the avoidance of doubt, where any provision of this Agreement requires either Party to perform any act in writing, this requirement will only be satisfied if such performance is made in a written or printed based paper form. The provisions of the Electronic Communications and Transactions Act No. 25 of 2002, in this regard being expressly excluded from this Agreement and data messages (as defined in that Act) are excluded as a valid form of notice in terms hereof.

 

• Notwithstanding the above, any notice given in writing, including one sent by data message, actually received by the PARTY to whom the notice is addressed, will be deemed to have been properly given and received notwithstanding that such notice has not been given in accordance with the provisions of this clause.

 

12. GENERAL:

 

12.1   This Agreement constitutes the whole of the Agreement between the PARTIES hereto relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on any of the PARTIES.

 

12.2   No variation, addition, deletion, or agreed cancellation will be of any force or effect unless in writing and signed by or on behalf of the PARTIES hereto. Failure or delay on the part of any Party hereto in exercising any right, power or privilege hereunder will constitute or be deemed to be a waiver thereof, nor will any single or partial exercise thereof or the exercise of any other right, power or privilege.

 

12.3   Save as otherwise herein provided, neither this Agreement nor any part, share or interest therein nor any rights or obligations hereunder may be ceded, assigned, or otherwise transferred without the prior written consent of the other PARTY or PARTIES.

 

12.4   Any consent or approval required to be given by any PARTY in terms of this Agreement will, unless specifically otherwise stated, not be unreasonably withheld.

 

12.5   This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the PARTY last signing one of the counterparts. The Parties undertake to take whatever steps may be necessary to ensure that each counterpart is duly signed by each of them without delay.

 

 

 

SIGNED AT                                          THIS                 DAY OF                                    20..

 

AS WITNESS:

 

1. _________________________            _______________________

SELLER (……………………)

 

 

 

2. ________________________

 

 

 

 

SIGNED AT                                          THIS                 DAY OF                                    20..

 

AS WITNESS:

 

1. ________________________ _______________________

 

 

PURCHASER (………………)

 

2. ________________________

 

 

 

 

SIGNED AT                                          THIS                 DAY OF                                    20…

 

AS WITNESS:

 

1. _______________________ _______________________

On Behalf of THE CORPORATION

(………………………, duly authorised as

evidenced by the resolution

authorising same annexed hereto

marked “B”)

2. _______________________