I the undersigned
(As current project leader for ___________________________________
Of
_______________________________________________________
Tel ___________________ E-mail _______________________
(hereinafter referred to as the mandatee)
Hereby MANDATES
(hereinafter referred to as the mandated)
(Pease delete that which is not applicable)
1.
To
construct a Strategic Plan
to in terms of his functions as set out on the web page www.izak.co.za to cater for the following
aspects: -
1.1.
Develop
legal commercial and political strategy to the ends of establishing a project
at ______________ that will comply with demographics as required by the local
(commercial and political) and foreign investment development finance and
incentive scenarios to the ends of procuring the following (make amendments
where applicable): -
1.1.1.
International
and local contracts;
1.1.2.
International
and local Joint Venture Partners;
1.1.3.
Foreign
Direct Investment;
1.1.4.
Government
grants;
1.2.
Provide
templates for the business plan to be developed by the mandatee;
1.3.
Introduction
to financial institutions and suitable introduction agencies so as to
facilitate the above mentioned processes;
1.4.
Investigate
possibilities in respect of creating synergy with existing projects in the
area;
1.5.
Political
strategy in respect of empowerment structure to serve as vehicle for the
government grant system;
2.
To
set up a Section 21 Holding Company
or trust to serve as the empowerment wing for the project;
3.
To
advise on and develop the share structure of the project;
4. To arrange a Shareholders and share Purchase Agreements
between the shareholders of the company
5. To draft Joint Venture (JV) Agreements
6. Set up and implement a management buy out or land
redistribution program for the farm-land and properties described in annexure “C”
hereto.
7.
The
fees in respect of this
mandate will comprise a deposit of R 10,000.00, the balance to be
recovered as consultation fees built into the business plan to be paid directly
by the financiers to the mandated, this mandate serving as sufficient power of
attorney to that end.
7.1.
In
the interim a retainer of R
1,000.00 per month will be paid to Dr. Labuschagne to cover costs and
disbursements until the finance is approved, provided that if an application
for finance has not ensued in six months from 1 February 2003, then the retainer
shall cease until such application is made.
7.2.
The
abovementioned retainer shall be paid directly into the following account: -
Account name Dr. Izak H Labuschagne
Bank First National
Bank
Branch Hillcrest (223726)
Account No. 620 252 43528
7.3.
Account
payments will be
faxed to Dr. Labuschagne by first contacting him on (073) 1 567825 and thence
obtaining his fax number
8. This agreement will be accompanied by an Intellectual Property, Non-Disclosure, Non Circumvention and Working Agreement as attached hereto under Annexure “B”
1) The parties agree to pursue Alternative Dispute Resolution
(ADR) as per the USAID model attached hereto under Annexure “A” as such, as a
domestic remedy to be exhausted prior to resorting to Arbitration or Litigation
or of whatever nature.
a) Should the process of ADR fail the parties nominate the
Supreme Court of South Africa in Durban as the court with jurisdiction in
respect of any disputes that may arise between them
2) This agreement is entered into in utmost good faith and any
performance in terms thereof shall similarly be conducted.
3) Each party herein agrees to exercise the utmost of duty in
care in fulfilling their obligations herein and reserves unto itself all rights
in respect thereto against any party not complying with it’s obligations.
4) The parties agree that this written agreement comprises the
entire, complete and only agreement between the parties and any variation or
addition hereto shall only be binding if reduced to writing and signed by all
the signatories hereto.
5) The parties hereto warrant and guarantee, as the case may
be, that they are: -
a) Solvent;
b) Are duly authorized to enter into this agreement;
c) Are in no wise encumbered from performing any condition in
this agreement;
d) And are capable of performance of any condition and term to
this agreement whether stated or implicit;
6) Moreover, the parties agree that no representations or
warranties of whatsoever nature other than as expressly provided for herein
will be binding upon the parties.
7) The parties agree to immediately notify one another of any
changes with regard to the warranties and guarantees stated herein or any
failure of performance of any aspect or prerequisite of whatsoever nature,
which may be contained in, or arising directly or by implication, out of this
agreement.
8) The parties agree that the only applicable law to this
agreement is the law of South Africa
and it’s volume of precedent only.
9) The parties hereto agree to the plain English, layman’s
interpretation to the terms and conditions set out herein and in no way
whatsoever impute any interpretation hereto which is of a legally technical,
formalistic or otherwise legalistic nature and they bind themselves to
litigation confined to the merits and not to litigate on the basis of the type
of formalisms and legalisms as discouraged by the Wolf Commission of the UK and
as further amplified by the Australian and New Zealand Law Commissions.
10) Should any party be in breach or default with the other in
respect of any obligations or the bona fides embodied in this agreement, the
other party shall be entitled to give 30 days notice for the remedy of such
default failing which this contract will be then be cancelled.
11) The parties hereto agree to service of any documents or
procedures arising from this agreement on the addresses set out under the
following heading by any party herein or by a Sheriff of the Magistrates Court.
12) The parties choose the respective domicillia citandi
as reflected under the names of the parties at the head of this agreement.
13) Each party shall be responsible for it’s own Currency Risk
Management and shall not hold any other party liable for same.
14) Each party shall bear it’s own costs of this agreement or
any litigation that may arise from same and shall in no wise be liable to any
other party for same.
15) The parties herein indemnify one another against any claims
by third parties that may arise from this agreement against them.
16) Any non-compliance with any aspect of this agreement shall
not prejudice any right or rights whether expressly provided for or implicit in
this agreement.
17) No indulgence granted in respect of this agreement shall be
regarded as a waiver of rights or constitute a variation of the agreement in
any way.
18) The parties agree that they may either personally represent
any of their affiliate organizations or that such may be represented by any
representative nominated by such party of such affiliate in whatsoever forum
(including the High Court or Constitutional Court, or by an appropriate Officer
of Court.
19) This agreement will be binding on the parties hereto, their
executors, trustees, curators, and assignees and representatives of whatsoever
nature as the case may be.
20) This agreement shall be nul and void unless the
international Chamber of commerce’s Intellectual property, confidentiality Non
Circumvention agreement attached hereto under annexure “B” is entered into.
21) This agreement comprises a Memorandum of Agreement without
securities.
SIGNED at ________________ THIS ___________day of
________, 2005
______________
(Who warrants that he is duly authorized to sign on
behalf of the Owner)?
Witnesses
___________ ____________
SIGNED at
______________THIS ___________day of ________, 2005
_________
Mandated
Witnesses
___________ ____________
1.
The venue, date and time for ADR will be _______________,
the parties to advise the final venue no later than 7 days prior to ADR.
2.
The proposed chairman is ________________ who may be a
member of the Arbitration Foundation of South Africa as such certified.
3.
The chairman's all-inclusive fee shall be ___________ to be
paid in cash in advance, each party bearing 50% of the cost.
4.
The Panel is proposed to comprise one other advisor for each
party.
5.
The aim of the ADR is to determine: -
5.1.
-
5.2.
-
5.3.
-
6.
The rules for the proceedings set out below comprise
extracts from the USA Aid model for ADR and South Africa Arbitration
Association abbreviated rules.
7.
Each party shall submit to the chairman, at
____________________________, a document wherein they will set out the issues,
as they perceive them and suggestions as that party thinks will contribute to a
speedy resolution to the ADR.
7.1.
This submission will
be made no later than 7 days before the ADR.
8.
The Chairman will identify issues that the parties are ad
idem on and such issues upon which there appears disagreement. He shall also
have formed some idea of possible ways in which to settle the matter.
9.
At the ADR, the chairman will state aforementioned
preliminary findings and suggestions before proceeding with the ADR.
9.1.
The dispute will be adjudicated upon quickly and a judgment
delivered as soon as possible.
9.2.
The rules for the proceedings can be mutually agreed upon
but will in no wise entail a set of formalistic, legalistic or technical
proceedings.
9.3.
The Chairman shall at his discretion not necessarily be
bound by the application of the normal stringent rules of evidence in respect
of proceedings.
9.4.
The chairman may call for additional evidence and or
submissions on any issue.
9.5.
The chairman may proceed inquisitorially to ascertain
relevant facts and to this end may question any party or witness or advisor at
any stage of the proceedings.
9.6.
The proceedings shall be confidential and no disclosure to
third parties outside the ADR forum is allowed.
10.
The findings of the chairman will be in written format and
delivered within 7 days of ADR. Any agreement reached will be reduced to a
draft order by consent to be placed before court by the chairman in order that
the agreement be made an order of court.
11.
The decision shall not be unduly technical legalistic or
formalistic in nature and which shall not impute notions to the parties which
could not reasonably have been in their contemplation at the time of engaging
in the causa for the dispute
12.
The decision
of such forum shall be final and binding on all parties.
WHEREAS the above-named parties
intend to disclose to each other proprietary and confidential information
relating to the business conducted by the parties.
AND WHEREAS the Parties wish to
protect such intellectual property, proprietary and confidential information in
accordance with the provisions set out below
1.
In this Agreement:
1.1.
"Proprietary Information and intellectual property"
means any technical or commercial information including (without limitation)
business plans, budgets, legal documents, Strategic plans, documentation,
correspondence, cost estimates or other financial information or data,
specifications, drawings, designs and know-how originally disclosed by one
Party ("the Disclosing Party") to the other Party ("the
Receiving Party") under this Agreement which is in written, other visual
or machine readable form and clearly marked or designated by the Disclosing
Party as "Proprietary" or "Confidential" (or is
communicated orally on a basis of confidentiality.
1.2.
Proprietary Information does not include any information which:
1.2.1.
Is in or which comes into the public domain otherwise than as a
result of a breach of this Agreement by any person to whom a disclosure of
Proprietary Information is made as permitted under this Agreement or of any
other duty of confidentiality relating to the Proprietary Information of which
the Receiving Party has knowledge;
1.2.2.
Or was lawfully obtained by the Receiving Party from a third party
with full rights of disclosure;
1.2.3.
Or the Receiving Party can
show was already in its unrestricted possession at the date of receipt of the
information under this Agreement;
1.2.4.
Or the Receiving Party can show has
been developed by it or for it at any time, independently of any Proprietary
Information.
2.
In consideration of the foregoing, the Receiving Party undertakes
during the term of this Agreement and for a period of 10 years following the first to occur of the date of
expiry or termination of this Agreement:
2.1.
To keep confidential and not to disclose Proprietary Information
received under this Agreement to any third party except with the prior written
consent of the Disclosing Party;
2.2.
Not to disclose such Proprietary Information to any personnel
within its own company other than those personnel who have a need to receive
such Proprietary Information for the purposes of this Agreement referred to in
the Recitals;
2.3.
Not to use or allow to be used such Proprietary Information
otherwise than solely for the purposes referred to in the Recitals to this
Agreement, unless (and then only to the extent to which) a further use is
specifically authorised in writing by the Disclosing Party;
2.4.
To procure that each third party to whom Proprietary Information
is disclosed under this Agreement is made aware of the provisions of this
Agreement prior to such disclosure to it and that each such third party is
bound by obligations of confidentiality which are no less onerous than those
contained in this Agreement;
2.5.
Not to copy reproduce or reduce to writing any part of such
Proprietary Information except as may be reasonably necessary for the purpose
referred to in the Recitals of this Agreement
2.5.1.
PROVIDED THAT the Receiving Party
shall be entitled to disclose Proprietary Information:
2.5.1.1.
To any party
specifically condoned in writing by the disclosing party.
2.5.1.2.
Pursuant to a court order or government or regulatory requirement
requiring disclosure of the Disclosing Party's Proprietary Information subject
to notifying the Disclosing Party as soon as possible of such requirement.
3.
No right or
licence is granted to the Receiving Party in relation to any Proprietary
Information of the Disclosing Party.
4.
Each Party shall perform its respective obligations under this
Agreement without charge to the other Party.
5.
This Agreement shall remain in force for 10 years duration from
the date of this Agreement and shall then automatically terminate unless
renewed by mutual consent in writing.
6.
On termination of this Agreement for any reason the Receiving
Party shall retain no Proprietary Information disclosed to it under this
Agreement and shall upon the request of the Disclosing Party either return to
the Disclosing Party or destroy all such Proprietary Information which is in a
tangible form and is in the possession of the Receiving Party pursuant to this
Agreement, together with all copies.
7.
No Party shall assign or transfer its rights and/or obligations
pursuant to this Agreement (other than for the purposes of internal corporate
reconstruction, reorganisation, merger or analogous proceeding) without the
prior written consent of the other Party.
SIGNED AT
________________ THIS ______ DAY OF ___________ 200_
___________ __________
MANDATED MANDATEE
WITTNESSES
________________ _________________
_________________________________________________________________________________________________________________________________________________________________
INTERNATIONAL CHAMBER OF COMMERCE (ICC)
BY AND BETWEEN
______________________________
of _________________________
AND
______________________________
of _________________________
Wittnesseth:-
For and in
consideration of their mutual promises, assertions and covenants set forth
herein, whereas the parties herein mentioned above and below are mutually
desirous in working together for their mutual benefit, said parties agree to
abide by the following terms and conditions: -
1
Each of the
parties hereto, separately or individually and their associates hereby agree
that they or their Corporate, Subsidiaries, Employees, Agents, or Consultants
will not make any contact with, deal with or otherwise involve in any
transaction whatsoever with any party to this Agreement separately and
individually or their associates, without the written consent of the
Introducing Party.
2
The parties
will maintain complete confidentiality regarding each other’s business sources
and/or their affiliates and will disclose only to named parties pursuant to the
express written permission of the party who made available said source, and
3
That they
will not in any way whatsoever, circumvent or attempt to circumvent each other,
any of the parties involved in any of the transactions the parties are desirous
of entering into and to the best of their abilities assure one another that the
original transaction codes will not be tampered with.
4
The parties
hereby agree without reservation or exemption to keep completely confidential,
the names and details of Banks, Lending
Institutions, Participating Corporations or Individuals introduced by the
parties or their Agents or Associations. Such identity shall remain the sole
property of the Introducing Party and shall remain confidential throughout the
duration of this Agreement and shall include by way of example, any telephone
numbers, addresses, telefax, fax or other details etc.
5
It is also agreed
by all parties that they will not enter into any direct contact, negotiations or transactions with such
contacts revealed by the other parties without the express written permission
of the other parties.
6
In the event
of both parties signing a Agreement or Mandate, as the case may be, each
party agrees with the other party that upon any breach of the said Agreement/s,
the party in default will pay to the other party(s):-
6.1
The legal
monetary penalty equal to the maximum commission administration fee covered in
the Agreement or Mandate.
6.2
All and any
expenses including legal, that would involve the recovery of these funds.
7
The parties
hereby agree to keep each other informed of the monetary value of all transactions
closed through third parties and that the commissions agreed to will be put in
place for each transaction.
8
Furthermore,
all consideration, benefits, bonuses, participation fees and /or commissions
received as a result of the contributions of the parties to this Agreement will
be allocated as mutually agreed to.
9
Any duly
signed facsimile of this Agreement shall be deemed to be valid and enforceable
as if it were the original and shall be legal and binding upon all parties.
10
This Agreement
is valid for any and all transactions between the parties and is a full
recourse consensual agreement conducted under the laws of Switzerland, United
Kingdom, the United States of America and South Africa, whose laws shall govern
the construction, interpretation, execution, validity, enforcement and
performance and any other matters in respect of this Agreement. The signing Parties hereby agree to such
jurisdiction as may be selected as the exclusive venue.
11
This
agreement is valid for a period coinciding with the period which starts from the time of initiation of
the Agreement or Mandate until all the terms and conditions to it have
been successfully concluded.
12
This contract
incorporates the rules of non-circumvention and non-disclosure established by the International Chamber of Commerce,
Paris, France (ICC), which rules are made part of this Agreement.
13
In the event
of this Agreement being disputed by any of the parties and a resolution cannot be reached, the parties
agree to have the dispute arbitrated in the country selected by the The
Arbitration Association of South Africa, (being accepted as such by the
parties) being a signatory as intermediary to this agreement in either this or a
related similar document forming part of the project in question, under ICC Rules
of Conciliation and Arbitration
then in force.
13.1
Judgment upon
an award may be entered and enforced in any court of competent jurisdiction.
13.2
The injured
party will receive full remuneration, in addition to all legal costs, attorneys fees and other
charges as set out by the Arbitrator(s).
14
The
undersigned parties hereby warrant and affirm under the international penalty
of perjury that they have the Full
Capacity and Authority to execute and perform fully to perfect this Agreement.
15
The parties
choose their domicilium et executandi as:
ADDRESS:
ADDRESS:
IN WITNESS
HEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT AND HAVE DONE SO UNDER PENALTY
OR PERJURY.
SIGNED AT ______ON THIS ____ DAY OF ______ 200_
_________________
_______________________