JOINT VENTURE AGREEMENT. in respect of: DIAMOND TRANSACTION. concluded between:

Transcription

1 JOINT VENTURE AGREEMENT in respect of: DIAMOND TRANSACTION concluded between: TARIOPART PTY (LTD), REG NO: 2011/119496/07 trading as DIAMOND TRADE CO. ( the First Party ) herein represented by LOUIS LIEBENBERG-MANAGING DIRECTOR,duly authorized) and.. (id..) (herein represented by, duly authorised) (The second party) WHEREAS the First Party has expertise, experience and know-how in respect of the diamond industry, including trading in and adding value to diamonds; AND WHEREAS the First Party is conducting such diamond business; AND WHEREAS such business requires working capital; BUT WHEREAS the First Party is willing to enter into a Joint Venture in respect of a specific diamond transaction; Diamond Trade Agreement 2013 Page 1 of 10

2 AND WHEREAS the First Party is willing to share the profits generated by such diamond transaction with a Joint Venture party, contributing working capital; AND WHEREAS the Second Party is willing to join such Joint Venture and in return for a share in the profit, provide working capital; AND WHEREAS the parties have agreed to the terms and conditions of such Joint Venture; AND WHEREAS the parties wish to reduce their consensus to writing; NOW THEREFORE the parties agree as follows: NOW AND THEREFORE THE PARTIES AGREE AS FOLLOWS: 1. INTERPRETATION In this agreement: 1.1 clause headings are for convenience and shall not be used in its interpretation; 1.2 unless the context clearly indicates a contrary intention: an expression which denotes: any gender includes the other genders; a natural person includes an artificial person and vice versa; the singular includes the plural and vice versa; the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings: Diamond Trade Agreement 2013 Page 2 of 10

3 The Diamond Transaction shall mean the transaction in respect of the parcel of Diamonds described in Annexure A hereto; The First Party shall mean TARIOPART (Pty) Ltd, a company duly registered with registration number 2011/119496/07; The JV Business shall mean the Joint Venture Business of purchasing, adding value to and reselling the parcel of Diamonds listed in Annexure A hereto; The Second Party shall mean; The Second Party s loan account shall mean the loan account operated in the financial records of the First Party, in respect of such amounts paid by the Second Party to the First Party, for utilization in the JV Business. 2. SCOPE AND DURATION 2.1 The JV Business shall comprise the parcel of Diamonds described in Annexure A ( the Diamonds ). 2.2 The agreement shall commence on the date of the last signature on this document. 2.3 This agreement shall continue until the Diamonds had been sold and the First Party accounted to the Second Party, which shall not be later than three months of the date of commencement. 2.4 The parties may mutually agree to extend the duration of the agreement, on such terms and conditions as they may agree upon. Diamond Trade Agreement 2013 Page 3 of 10

4 3. MANAGEMENT AND CONTROL 3.1 The First Party shall be responsible and liable for the planning, management, implementation and conducting of the JV Business 3.2 The Second Party shall assist the JV Business by making available and paying to the JV the amount stipulated in Annexure A, on the date or dates as stipulated in Annexure A. 3.3 The First Party shall utilize the amount so made available, in the running of the JV Business. 3.4 The First Party shall consult with the Second Party in respect of any material aspects of the JV Business but shall otherwise manage the affairs, including the purchasing of Diamonds, appointment of personnel, conclusion of leases and other contracts and all other actions reasonably required to conduct the JV Business. 3.5 The First Party shall upon request by the Second Party, furnish the Second Party with such written reports concerning the JV Business as may be requested. 3.6 The First and Second Party shall nominate one member each to serve on a management committee of the Joint Venture, for purposes of the said consultation and/or reporting. 3.7 The First Party shall in addition be entitled to nominate the leader of the JV, to chair the meetings of the management committee. 3.8 The parties shall be entitled to nominate alternate representatives, should any representative be unavailable, temporarily or permanently. 4. LOAN ACCOUNT 4.1 The Second Party s loan account shall be repayable together with the final accounting or within three months after commencement, whichever is the soonest. Diamond Trade Agreement 2013 Page 4 of 10

5 4.2 The loan account shall not bear any interest, by virtue of the Second Party being entitled to share in the profits of the JV Business. 4.3 The Second Party on the other hand shall not share in any losses that the JV Business may suffer and the full loan account shall be repaid on the due date, regardless of any loss or profit. 4.4 Funds paid by the Second Party shall be used by the First Party in the JV Business. 5. PROFIT SHARING 5.1 The purpose and aim of the JV Business is to generate profit from the sale of the Diamonds. 5.2 The First Party shall be responsible for the proper recording, safeguarding and sale of diamonds so purchased and upon request account to the Second Party. 5.3 The First Party shall account to the Second Party within one week after the successful sale, indicating the proposed profit sharing, based on equal sharing and after deduction of taxes, royalties and other related expenses. 5.4 Such accounting and profit sharing shall take place at least within one week after the sale of the Diamonds. 5.5 Should the Second Party not agree with the proposed profit sharing, the First Party s auditor shall within five business days determine the profit sharing in an informal, summary ruling. 6. TERMINATION 6.1 Upon termination of the JV Business, the First Party shall furnish the Second Party with a final account. 6.2 Any Diamonds already purchased but not yet sold, shall form part of the final account. 6.3 The JV Business shall revert to the First Party as a going concern, together with all other assets, rights, obligations and liabilities. Diamond Trade Agreement 2013 Page 5 of 10

6 6.4 The Second Party shall not be entitled to the payment of any goodwill that might vest in the JV Business, or any other remuneration except outstanding profit sharing and the loan account, as set out above. 7. LIMITATION OF LIABILITY 7.1 The Parties expressly record that this agreement shall not constitute a partnership and the rights and obligation of the Parties shall be limited to the contents of this agreement. 7.2 Each Party indemnifies the other against any damage or loss, which the other may suffer as a result of this agreement. 8. ARBITRATION 8.1 Any dispute that may arise from the conclusion, interpretation, execution, termination or otherwise of this agreement, shall be determined by arbitration in terms of the Arbitration Act. 8.2 Any Party may however obtain urgent interim relief in a court of law. 9. DOMICILIUM 9.1 The Parties hereto respectively choose domicilium citandi et executandi in respect of, this agreement as follows: The First Party (Physical) Liebenberg Racehorse and Stud Farm Rietdraai Lichtenburg, North West Province 2740 The First Party (Postal) P.O.BOX 2943 Lichtenburg 2740 Diamond Trade Agreement 2013 Page 6 of 10

7 9.1.2 The Second party 9.2 The Parties hereto shall be entitled to change their domicilia from time to time, provided that any such change shall only be effected upon receipt of notice in writing to the other party of such change. 9.3 All payments to be made pursuant to this agreement, and all notices, demands or communications intended for either Party, shall be made or given at such party s domicilium for the time being by prepaid registered post, telegram or hand delivery, and if forwarded by prepaid registered post, shall be deemed to have been made or given on the fifth day after date of posting, unless otherwise proved. 9.4 Payment of the amount payable by the Second Party shall be made into the following account: KOK AND VAN STADEN ATTORNEYS TRUST ACCOUNT ABSA BRANCH CODE: ACC NO: All payments in respect of profits declared to the Second Party shall be paid into the following account: BANK:... ACC NO:... Diamond Trade Agreement 2013 Page 7 of 10

8 BANK CODE: 10. BREACH 10.1 Should any of the Parties be in beach of the agreement, the innocent Party shall be entitled to: claim specific performance; claim damages; and/or cancel the agreement The innocent Party shall only be entitled to so cancel the agreement, should the Party in breach be notified of such breach in writing and compliance demanded within seven days, and the breach not be so remedied within the said seven day period. 11. COMPLIANCE WITH LEGISLATION The First Party shall at all relevant times comply with legislation applicable to the business so conducted, including but not limited to the Diamond Act 56 of 1986, the requirements of the South African Diamond Board and/or the South African Diamond and Precious Metal Regulator and/or the Mineral and Petroleum Resources Development Act 28 of GENERAL 12.1 This document contains the entire agreement between the Parties and no Party shall have any claim or right of action arising from any undertaking, representation or warranty not included in this document No failure by a Party to enforce any provision of this agreement shall constitute a waiver of such provision or affect in any way a Party s right to require the performance of such provision at any time in the future, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision itself. Diamond Trade Agreement 2013 Page 8 of 10

9 12.3 No agreement to vary, add to or cancel this agreement shall be of any force and effect unless reduced to writing and signed by or on behalf of the Parties to this agreement No Party may cede, assign or make over any of its rights or obligations under this agreement, without prior written approval of the other Party, which approval will not be unreasonably withheld This Agreement shall be binding on the heirs, executors, administrators and assigns of each of the Parties. Diamond Trade Agreement 2013 Page 9 of 10

10 DATED AND SIGNED AT 2013 ON THIS THE DAY OF IN THE PRESENCE OF THE UNDERSIGNED WITNESSES. (First Party) L.P. LIEBENBERG WITNESS: (Second Party) WITNESS: Diamond Trade Agreement 2013 Page 10 of 10