EXHIBIT 10.21
PWRW&G DRAFT
JULY 16, 2005
STOCK PURCHASE AGREEMENT
by and among
CI LAW TRUSTEES LIMITED FOR THE SAN ▇▇▇▇▇ TRUST,
DR. SERGE C.P. BELAMANT,
SOUTH AFRICAN PRIVATE EQUITY FUND III, L.P.,
SOUTH AFRICAN PRIVATE EQUITY TRUST III,
BRENTHURST PRIVATE EQUITY II LIMITED,
BRENTHURST PRIVATE EQUITY SOUTH AFRICA I LIMITED,
GENERAL ATLANTIC PARTNERS 80, L.P.,
GAPSTAR, LLC,
GAP COINVESTMENTS III, LLC,
GAP COINVESTMENTS IV, LLC,
GAPCO GMBH & CO. KG
and
NET 1 UEPS TECHNOLOGIES, INC.
Dated: July 18, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................................ 2
1.1 Definitions........................................................................ 2
ARTICLE II PURCHASE AND SALE OF COMMON STOCK.................................................. 4
2.1 Purchase and Sale of Common Stock.................................................. 4
2.2 Closing............................................................................ 5
2.3 Closing Deliveries................................................................. 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLERS...................................... 5
3.1 Existence and Power................................................................ 5
3.2 Authorization; No Contravention.................................................... 5
3.3 Governmental Authorization; Third Party Consents................................... 6
3.4 Binding Effect..................................................................... 6
3.5 Title.............................................................................. 6
3.6 Litigation......................................................................... 6
3.7 Private Offering................................................................... 6
3.8 Broker's, Finder's or Similar Fees................................................. 6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS................................... 7
4.1 Existence and Power................................................................ 7
4.2 Authorization; No Contravention.................................................... 7
4.3 Governmental Authorization; Third Party Consents................................... 7
4.4 Binding Effect..................................................................... 7
4.5 Purchase for Own Account........................................................... 7
4.6 Restricted Securities.............................................................. 8
4.7 Broker's, Finder's or Similar Fees................................................. 8
4.8 Accredited Investor................................................................ 8
4.9 Group.............................................................................. 8
ARTICLE V REPRESENTATION AND WARRANTIES OF THE COMPANY....................................... 8
5.1 Existence and Power................................................................ 8
5.2 Authorization; No Contravention.................................................... 8
5.3 Governmental Authorization; Third Party Consents................................... 9
5.4 Binding Effect..................................................................... 9
5.5 Litigation......................................................................... 9
5.6 Broker's, Finder's or Similar Fees................................................. 9
ARTICLE VI CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CLOSE............................ 9
6.1 Purchased Shares................................................................... 9
6.2 IPO............................................................................... 10
6.3 Representations and Warranties.................................................... 10
ARTICLE VII CONDITIONS TO THE OBLIGATION OF THE SELLERS TO CLOSE.............................. 10
7.1 Payment of Purchase Price......................................................... 10
7.2 IPO............................................................................... 10
7.3 Representations and Warranties.................................................... 10
ARTICLE VIII COVENANTS......................................................................... 10
8.1 Obligation to Indemnify........................................................... 10
8.2 Indemnification Procedure......................................................... 11
8.3 Non-Public Information............................................................ 12
8.4 Corporate Governance.............................................................. 12
8.5 Registration Rights............................................................... 13
ARTICLE IX TERMINATION OF AGREEMENT.......................................................... 14
9.1 Termination....................................................................... 14
9.2 Survival.......................................................................... 14
ARTICLE X MISCELLANEOUS..................................................................... 14
10.1 Survival of Representations and Warranties........................................ 14
10.2 Notices........................................................................... 14
10.3 Successors and Assigns; Third Party Beneficiaries................................. 16
10.4 Amendment and Waiver.............................................................. 16
10.5 Headings.......................................................................... 16
10.6 GOVERNING LAW..................................................................... 17
10.7 Consent to Jurisdiction; Service of Process....................................... 17
10.8 WAIVER OF JURY TRIAL.............................................................. 17
10.9 Severability...................................................................... 17
10.10 Rules of Construction............................................................. 18
10.11 Entire Agreement.................................................................. 18
10.12 Public Announcements.............................................................. 18
10.13 Further Assurances................................................................ 18
10.14 Counterparts...................................................................... 18
Exhibit A Purchased Shares
Exhibit B Registration Rights
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of July 18, 2005 (this
"Agreement"), by and among:
A. CI Law Trustees Limited for the San ▇▇▇▇▇ Trust, a __________
(the "San ▇▇▇▇▇ Trust");
B. Dr. Serge C.P. Belamant ("Belamant");
C. South African Private Equity Fund III, L.P., a __________ limited
partnership ("SAPEF");
D. South African Private Equity Trust III, a __________ ("SAPET");
E. Brenthurst Private Equity II Limited, a __________ ("Brenthurst
II");
F. Brenthurst Private Equity South Africa I Limited, a __________
("Brenthurst I" and, collectively with the San ▇▇▇▇▇ Trust, Belamant, SAPEF,
SAPET and Brenthurst II, the "Sellers");
G. General Atlantic Partners 80, L.P., a Delaware limited
partnership ("GAP LP");
H. GapStar, LLC, a Delaware limited liability company ("GapStar");
I. GAP Coinvestments III, LLC, a Delaware limited liability company
("GAP Coinvestments III");
J. GAP Coinvestments IV, LLC, a Delaware limited liability company
("GAP Coinvestments IV");
K. GAPCO GmbH & Co. KG, a German limited partnership ("GAPCO KG"
and, collectively with GAP LP, GapStar, GAP Coinvestments III and GAP
Coinvestments IV, the "Purchasers"); and
L. Net 1 UEPS Technologies, Inc., a Florida corporation (the
"Company").
WHEREAS, upon the terms and conditions set forth in this Agreement,
each of the Sellers proposes to sell to each of the Purchasers the aggregate
number of shares of Common Stock, par value $0.001 per share (the "Common
Stock"), of the Company calculated in the manner set forth in Section 2.1 for an
aggregate purchase price of $75,000,000.
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as defined
in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"Agreement" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"Belamant" has the meaning set forth in the preamble to this
Agreement.
"Brenthurst I" has the meaning set forth in the preamble to this
Agreement.
"Brenthurst II" has the meaning set forth in the preamble to this
Agreement.
"Board of Directors" means the board of directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in the State of New York or South Africa are
authorized or required by law or executive order to close.
"Closing" has the meaning set forth in Section 2.2 of this
Agreement.
"Closing Date" has the meaning set forth in Section 2.2 of this
Agreement.
"Commission" means the United States Securities and Exchange
Commission or any similar agency then having jurisdiction to enforce the
Securities Act.
"Common Stock" has the meaning set forth in the recitals to this
Agreement.
"Company" has the meaning set forth in the recitals to this
Agreement.
"Contractual Obligations" means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its assets or properties are bound.
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"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder.
"GA Designee" has the meaning set forth in Section 8.4(a) of this
Agreement.
"GA LLC" means General Atlantic LLC.
"GAP Coinvestments III" has the meaning set forth in the preamble to
this Agreement.
"GAP Coinvestments IV" has the meaning set forth in the preamble to
this Agreement.
"GAPCO KG" has the meaning set forth in the preamble to this
Agreement.
"GAP LP" has the meaning set forth in the preamble to this
Agreement.
"GapStar" has the meaning set forth in the preamble to this
Agreement.
"Governmental Authority" means (a) the government of any nation,
state, city, locality or other political subdivision thereof, (b) any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and (c) any corporation or other
entity owned or controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
"Indemnified Group" has the meaning set forth in Section 8.1 of this
Agreement.
"Indemnified Party" has the meaning set forth in Section 8.2(a) of
this Agreement.
"Indemnifying Party" has the meaning set forth in Section 8.2(a) of
this Agreement.
"IPO" means the Company's initial public offering of its shares of
Common Stock as contemplated by its Registration Statement on Form S-1
(Registration Number 333-125273).
"Legal Action" means any action, suit, proceeding, claim, complaint,
demand, dispute or investigation before any Government Authority or arbitrator.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever.
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"Losses" means any losses, claims, damages, diminutions in value,
expenses (including, without limitation, reasonable fees, disbursements and
other charges of counsel) or other liabilities.
"Non-Public Information" has the meaning set forth in Section 8.3(a)
of this Agreement.
"Observer" has the meaning set forth in Section 8.4(a) of this
Agreement.
"Order" means any order, judgment, injunction, award, decree or writ
of any Governmental Authority or arbitrator.
"Person" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Purchased Shares" has the meaning set forth in Section 2.1 of this
Agreement.
"Purchase Price" means the "initial public offering price per share"
of Common Stock as set forth on the front cover of the final prospectus
contained in the Company's Registration Statement on Form S-1 (Registration
Number 333-125273).
"Purchasers" has the meaning set forth in the preamble to this
Agreement.
"Requirements of Law" means any applicable law, statute, treaty,
rule, regulation, qualification, franchise, license or determination of any
Governmental Authority.
"San ▇▇▇▇▇ Trust" has the meaning set forth in the preamble to this
Agreement.
"SAPEF" has the meaning set forth in the preamble to this Agreement.
"SAPET" has the meaning set forth in the preamble to this Agreement.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Sellers" has the meaning set forth in the preamble to this
Agreement.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
2.1 Purchase and Sale of Common Stock. Subject to the terms and
conditions set forth in this Agreement, each of the Sellers agrees to sell to
each of the
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Purchasers, and each such Purchaser, jointly and severally, agrees to purchase
from each such Seller, on the Closing Date, the number of shares of Common Stock
determined by taking the aggregate number of Purchased Shares calculated in
accordance with the next sentence of this Section 2.1 and multiplying such
number by the percentage set forth opposite such Purchaser's name on Exhibit A
hereto, in consideration of the aggregate purchase price equal to the product of
(a) such number of shares of Common Stock purchased by such Purchaser from such
Seller multiplied by (b) the Purchase Price. For purposes of this Agreement, the
aggregate number of all Purchased Shares shall be equal to the quotient obtained
by dividing (i) $75,000,000 by (ii) the Purchase Price (rounded to the nearest
whole share). The shares of Common Stock being purchased pursuant to this
Section 2.1 are collectively referred to as the "Purchased Shares." The
Purchased Shares shall be purchased from each Seller in accordance with the
percentages set forth on Exhibit A hereto.
2.2 Closing. Unless this Agreement has been terminated in accordance
with Section 9.1, the closing of the sale and purchase of the Purchased Shares
(the "Closing") shall take place at the offices of DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
US LLP, 1251 Avenue of the Americas, New York, New York at 10:00 a.m., local
time, simultaneously with the closing of the IPO, or at such other time, place
and date that the parties hereto may agree in writing (the "Closing Date");
provided, however, that in no event shall the Closing Date be later than the
closing of the IPO.
2.3 Closing Deliveries. On the Closing Date, (a) each of the Sellers
shall deliver to each of the Purchasers a certificate or certificates in
definitive form and registered in the name of such Purchaser representing the
Purchased Shares and (b) each of the Purchasers shall pay the purchase price for
its Purchased Shares by wire transfer of immediately available funds to bank
accounts designated by the Sellers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers, severally but not jointly, hereby represents
and warrants to each of the Purchasers as follows:
3.1 Existence and Power. Such Seller (a) is a corporation,
partnership, limited liability company or trust, as the case may be, duly
organized and validly existing under the laws of the jurisdiction of its
formation and (b) has the requisite power and authority to execute, deliver and
perform its obligations under this Agreement.
3.2 Authorization; No Contravention. The execution, delivery and
performance by such Seller of this Agreement or the transactions contemplated
hereby (a) have been duly authorized by all necessary action, (b) do not
contravene the terms of such Seller's organizational documents, or any amendment
thereof, (c) do not violate, conflict with or result in any breach, default or
contravention of, or the creation of (or with due notice or lapse of time or
both would result in any breach, default or contravention of) any Lien under,
any Contractual Obligation of such Seller or a
6
Requirement of Law applicable to such Seller, and (d) do not violate any Orders
of any Governmental Authority against, or binding upon, such Seller.
3.3 Governmental Authorization; Third Party Consents. No approval,
consent, compliance, exemption, authorization or other action by, or notice to,
or filing with, any Governmental Authority or any other Person, and no lapse of
a waiting period under any Requirement of Law, is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the purchase of the Purchased Shares) by, or enforcement against,
such Seller of this Agreement or the transactions contemplated hereby.
3.4 Binding Effect. This Agreement has been duly executed and
delivered by such Seller, and constitutes the legal, valid and binding
obligation of such Seller, enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
3.5 Title. Such Seller (a) owns all of its Purchased Shares
beneficially and of record and free and clear of any Lien and (b) has the full
power and authority to convey its Purchased Shares free and clear of any Lien.
Upon delivery of and payment for such Purchased Shares, such Seller will
transfer to each Purchaser good and valid title to the Purchased Shares being
purchased by such Purchaser, free and clear of any Lien (other than any Liens
created by actions of the Purchasers).
3.6 Litigation. There are no Legal Actions pending or, to the
knowledge of such Seller, threatened against such Seller purporting to enjoin or
restrain the execution, delivery or performance by such Seller of this Agreement
and the transactions contemplated hereby.
3.7 Private Offering. No registration of the Purchased Shares,
pursuant to the provisions of the Securities Act or any state securities or
"blue sky" laws, will be required by the offer or sale of the Purchased Shares.
Such Seller agrees that neither it, nor anyone acting on its behalf, shall offer
to sell the Purchased Shares or any other securities of the Company so as to
require the registration of the Purchased Shares pursuant to the provisions of
the Securities Act or any state securities or "blue sky" laws.
3.8 Broker's, Finder's or Similar Fees. Any brokerage commissions,
finder's fees, placement fees, or similar fees or commissions payable in
connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with such Seller or any of its Affiliates or any
action taken by any such Person shall be paid by such Seller on the Closing
Date.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby represents and warrants to each of the
Sellers as follows:
4.1 Existence and Power. Such Purchaser (a) is a limited partnership
or limited liability company, as the case may be, duly organized and validly
existing under the laws of the jurisdiction of its formation and (b) has the
requisite partnership or limited liability company, as the case may be, power
and authority to execute, deliver and perform its obligations under this
Agreement.
4.2 Authorization; No Contravention. The execution, delivery and
performance by such Purchaser of this Agreement and the transactions
contemplated hereby (a) have been duly authorized by all necessary partnership
or limited liability company, as the case may be, action, (b) do not contravene
the terms of such Purchaser's organizational documents, or any amendment
thereof, (c) do not violate, conflict with or result in any breach, default or
contravention of, or the creation of (or with due notice or lapse of time or
both would result in any breach, default or contravention of) any Lien under,
any Contractual Obligation of such Purchaser or a Requirement of Law applicable
to such Purchaser, and (d) do not violate any Orders of any Governmental
Authority against, or binding upon, such Purchaser.
4.3 Governmental Authorization; Third Party Consents. No approval,
consent, compliance, exemption, authorization or other action by, or notice to,
or filing with, any Governmental Authority or any other Person, and no lapse of
a waiting period under any Requirement of Law, is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the purchase of the Purchased Shares) by, or enforcement against,
such Purchaser of this Agreement or the transactions contemplated hereby.
4.4 Binding Effect. This Agreement has been duly executed and
delivered by such Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
general principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.5 Purchase for Own Account. The Purchased Shares to be acquired by
such Purchaser pursuant to this Agreement are being acquired for its own account
for investment only, and not with a view to, or for sale in connection with, any
distribution of such Purchased Shares or any part thereof in any transaction
that would be in violation of the securities laws of the United States of
America. Such Purchaser understands and agrees that such Purchased Shares have
not been registered under the Securities Act and are "restricted securities"
within the meaning of Rule 144 under the Securities Act and
8
that the Purchased Shares cannot be sold, transferred or otherwise disposed of
except in compliance with the Securities Act. Such Purchaser agrees to the
imprinting of a legend on certificates representing all of its Purchased Shares
to the following effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY FOREIGN JURISDICTION. THE SECURITIES MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
4.6 Restricted Securities. Such Purchaser understands that the
Purchased Shares will not be registered at the time of their issuance under the
Securities Act for the reason that the sale provided for in this Agreement is
exempt pursuant to Section 4(2) of the Securities Act and that the reliance of
the Company on such exemption is predicated in part on such Purchaser's
representations set forth herein.
4.7 Broker's, Finder's or Similar Fees. There are no brokerage
commissions, finder's fees or similar fees or commissions payable by such
Purchaser in connection with the transactions contemplated hereby based on any
agreement, arrangement or understanding with such Purchaser or any action taken
by such Purchaser.
4.8 Accredited Investor. Such Purchaser is an "Accredited Investor"
within the meaning of Rule 501 of Regulation D under the Securities Act, as
presently in effect.
4.9 Group. The Purchasers are Affiliates of each other and
constitute a "group" (as defined in Rule 13d -5 promulgated under the Exchange
Act).
ARTICLE V
REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchasers as
follows:
5.1 Existence and Power. The Company (a) is a corporation duly
organized and validly existing under the laws of Florida and (b) has the
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
5.2 Authorization; No Contravention. The execution, delivery and
performance by the Company of this Agreement or the transactions contemplated
hereby (a) have been duly authorized by all necessary corporate action, (b) do
not contravene the terms of the Company's articles of incorporation or by-laws,
or any amendment thereof,
9
(c) do not violate, conflict with or result in any breach, default or
contravention of, or the creation of (or with due notice or lapse of time or
both would result in any breach, default or contravention of) any Lien under,
any Contractual Obligation of the Company or a Requirement of Law applicable to
the Company, and (d) do not violate any Orders of any Governmental Authority
against, or binding upon, the Company.
5.3 Governmental Authorization; Third Party Consents. No approval,
consent, compliance, exemption, authorization or other action by, or notice to,
or filing with, any Governmental Authority or any other Person, and no lapse of
a waiting period under any Requirement of Law, is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the purchase of the Purchased Shares) by, or enforcement against,
the Company of this Agreement or the transactions contemplated hereby.
5.4 Binding Effect. This Agreement has been duly executed and
delivered by the Company, and constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
5.5 Litigation. There are no Legal Actions pending or, to the
knowledge of the Company, threatened against the Company purporting to enjoin or
restrain the execution, delivery or performance by the Company of this Agreement
and the transactions contemplated hereby.
5.6 Broker's, Finder's or Similar Fees. Any brokerage commissions,
finder's fees, placement fees, or similar fees or commissions payable in
connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with the Company or any of its Affiliates or any
action taken by any such Person shall be paid by the Company on the Closing
Date.
ARTICLE VI
CONDITIONS TO THE OBLIGATION
OF THE PURCHASERS TO CLOSE
The obligation of the Purchasers to purchase the Purchased Shares,
to pay the purchase price therefor at the Closing and to perform their other
obligations hereunder shall be subject to the satisfaction of the following
conditions on or before the Closing Date:
6.1 Purchased Shares. The Sellers shall have delivered to each of
the Purchasers certificates in definitive form representing the number of
Purchased Shares calculated in the manner set forth in Section 2.1.
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6.2 IPO. The Company's Registration Statement on Form S-1
(Registration Number 333-125273) shall have been declared effective by the
Commission, such Registration Statement shall remain effective, no stop order
shall have been issued by the Commission against such Registration Statement and
the Company shall have, simultaneously with the Closing, consummated the IPO.
6.3 Representations and Warranties. The representations and
warranties of the Sellers and the Company contained in this Agreement shall each
be true and correct as of the Closing Date. Each of the Sellers and the Company
shall have delivered to the Purchasers a certificate, dated as of the Closing
Date and signed by a duly authorized officer of such Seller or the Company, as
the case may be, certifying as to the foregoing.
ARTICLE VII
CONDITIONS TO THE OBLIGATION
OF THE SELLERS TO CLOSE
The obligation of the Sellers to sell the Purchased Shares and to
perform their other obligations hereunder shall be subject to the satisfaction
of the following conditions on or before the Closing Date:
7.1 Payment of Purchase Price. Each Purchaser shall be prepared to
pay the aggregate purchase price for the Purchased Shares to be purchased by
such Purchaser.
7.2 IPO. The Company's Registration Statement on Form S-1
(Registration Number 333-125273) shall have been declared effective by the
Commission, such Registration Statement shall remain effective, no stop order
shall have been issued by the Commission against such Registration Statement and
the Company shall have, simultaneously with the Closing, consummated the IPO.
7.3 Representations and Warranties. The representations and
warranties of the Purchasers contained in this Agreement shall each be true and
correct as of the Closing Date. Each of the Purchasers shall have delivered to
the Sellers a certificate, dated as of the Closing Date and signed by a duly
authorized officer of such Purchaser, certifying as to the foregoing.
ARTICLE VIII
COVENANTS
8.1 Obligation to Indemnify. Each of the Sellers shall indemnify,
defend and hold harmless each Purchaser and its Affiliates, directors, officers,
partners, members, employees, agents and representatives, and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, its
"Indemnified Group"), from and against any and all Losses incurred or suffered
by any Purchaser or any member
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of its Indemnified Group to the extent such Losses arise out of or relate to the
breach of any representation, warranty, covenant or agreement of such Seller
contained in this Agreement.
8.2 Indemnification Procedure.
(a) Any Person seeking indemnification under Section 7.1 (the
"Indemnified Party") shall promptly notify the party from whom indemnification
is being sought (the "Indemnifying Party") in writing of any claim or demand for
which the Indemnified Party is asserting an indemnification claim. Notice shall
in all events be considered prompt if given no later than thirty days after the
Indemnified Party becomes aware of such claim or demand. Such notice shall be
accompanied by a reasonably full description of the basis for such claim or
demand and a reference to the provisions of this Agreement under which liability
is asserted; provided, however, that no delay on the part of the Indemnified
Party in notifying any Indemnifying Party shall relieve the Indemnifying Party
of any liability hereunder unless (and then solely to the extent) the
Indemnifying Party is prejudiced by such delay.
(b) The Indemnifying Party shall have the right to participate
jointly in the defense of any third party Legal Action in connection with which
the Indemnified Party is seeking indemnification hereunder, and the Indemnifying
Party may elect to take over the defense of such Legal Action with counsel
satisfactory to the Indemnified Party. The Indemnifying Party shall notify the
Indemnified Party within thirty days of its receipt of a claim notice pursuant
to this Section 7.2 as to whether or not it will assume the defense against such
Legal Action. If the Indemnifying Party elects to take over the defense of such
Legal Action, then:
(i) it shall keep the Indemnified Party informed as to
the status of such Legal Action and shall promptly send copies of all related
pleadings to the Indemnified Party;
(ii) with respect to any claim involved in such Legal
Action, the Indemnifying Party shall have the sole right to contest, settle or
otherwise dispose of such claim on such terms as the Indemnifying Party shall
deem appropriate; provided, however, that the consent of the Indemnified Party
to any settlement or disposition shall be required if (A) it results in any
liability to or equitable relief against the Indemnified Party, (B) the result
would restrict the future activity of the Indemnified Party or any of its
Affiliates or (C) the result would result in the admission or finding of a
violation of law or violation of the rights of any Person by the Indemnified
Party or any of its Affiliates; and
(iii) the Indemnified Party shall have the right to
participate jointly in the defense of such Legal Action with another counsel of
its own choosing, but shall do so at its own cost unless (A) there are defenses
available to the Indemnified Party that are not available to the Indemnifying
Party or (B) a conflict or potential conflict exists between the Indemnified
Party and the Indemnifying Party, in which case the costs of such of other
counsel shall be paid by the Indemnifying Party.
12
If the Indemnifying Party does not elect to take over the defense of
such Legal Action, then the Indemnified Party shall have the right, but not the
obligation, to contest, settle or otherwise dispose of such Legal Action.
8.3 Non-Public Information.
(a) Each of the Sellers acknowledges that (i) the Purchasers
have informed such Seller that the Purchasers may possess certain non-public
information concerning the Company and its subsidiaries and/or the Purchased
Shares that may or may not be independently known to such Seller (all of such
non-public information is referred to as "Non-Public Information") and (ii) the
Purchasers have not disclosed the Non-Public Information to such Seller.
(b) Each of the Sellers is executing, delivering and
performing this Agreement notwithstanding that it is aware that the Non-Public
Information may exist and that the Non-Public Information has not been disclosed
to such Seller, and such Seller confirms and acknowledges that neither the
existence of the Non-Public Information, the substance of the Non-Public
Information nor the fact that the Non-Public Information has not been disclosed
to such Seller is material to such Seller or to its decision to execute, deliver
and perform this Agreement.
(c) Each of the Sellers does, for itself and its respective
officers, directors, stockholders, employees, agents, representatives,
successors and/or assigns, hereby: (i) fully and irrevocably waive any and all
rights, remedies and claims it would or could have, or may hereafter have,
against each Purchaser and its Indemnified Group arising out of or relating to
the existence or substance of the Non-Public Information or the fact that the
Non-Public Information has not been disclosed to such Seller; and (ii) forever
release, discharge and dismiss any and all claims, rights, causes of action,
suits, obligations, debts, demands, arrangements, promises, liabilities,
controversies, costs, expenses, fees or damages of any kind, whether known or
unknown, accrued or not accrued, foreseen or unforeseen or matured or not
matured, that it ever had, now has, can have, or shall or may hereafter have
(including, but not limited to, any and all claims alleging violations of U.S.
federal or state securities laws, common-law fraud or deceit, breach of
fiduciary duty, negligence or otherwise), whether directly, derivatively,
representatively or in any other capacity, against any of the Purchasers or
their respective Indemnified Groups which (x) arise in connection with the
execution, delivery and performance of this Agreement and the purchase of the
Purchased Shares and (y) are based upon, arise from or in any way relate to,
directly or indirectly, the existence or substance of the Non-Public Information
or the fact that the Non-Public Information has not been disclosed to such
Seller.
8.4 Corporate Governance.
(a) The Company shall cause one vacancy to be created on its
Board of Directors and cause to be elected to the Board of Directors, either at
a meeting of the Board of Directors or by written resolution in lieu of a
meeting of the Board of Directors, within 10 Business Days of the Closing Date,
one person designated by GAP
13
LP, who shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ (the "GA Designee"). In the
event that the GA Designee shall cease to serve as director for any reason, the
Company shall cause the vacancy resulting thereby to be filled by another
designee of GAP LP (who shall be deemed the GA Designee). The Company shall also
permit one non-voting observer designated by GAP LP (the "Observer") to
participate in all meetings of the Board of Directors and committees thereof.
(b) At each annual or special meeting of the stockholders of
the Company after the IPO at which directors are elected, GAP LP shall be
entitled to designate to the Board of Directors the GA Designee as a nominee to
serve as one of the directors of the Company. The Company shall cause the GA
Designee to be included in the slate of nominees recommended by the Board of
Directors to the Company's stockholders for election as directors, and the
Company shall use its reasonable best efforts to cause the election of the GA
Designee, including, without limitation, recommending to the stockholders of the
Company that the stockholders vote in favor of the election of the GA Designee
and voting any proxies the Company holds, and using its reasonable best efforts
to cause any officers of the Company who hold proxies to vote such proxies in
favor of the election of the GA Designee, except, in either case, as otherwise
directed by the stockholder who submitted such proxy.
(c) The Company shall reimburse the GA Designee and the
Observer for their travel and accommodation expenses incurred in connection with
attending meetings of the Board of Directors and committees thereof, and provide
such other expense reimbursement as is consistent with the reimbursement
provided to other members of the Board of Directors in their capacities as
directors of the Company, upon presentation of receipts or other similar
documentation.
(d) Subject to applicable Requirements of Law (including,
without limitation, any stock market rules and regulations), the GA Designee
shall have the right to serve on each committee of the Board of Directors.
(e) This Section 8.4 shall terminate and be of no further
force and effect at such time as the Purchasers, together with their Affiliates,
own, in the aggregate, a number of shares of Common Stock that is less than
fifty percent (50%) of the total number of Purchased Shares that the Purchasers
purchase from the Sellers at the Closing (as adjusted to reflect any stock
dividends, splits, combinations or similar changes to the total number of
outstanding shares of Common Stock).
8.5 Registration Rights. As soon as practicable after the date of
this Agreement, but in any event by no later than September 30, 2005, the
Company shall enter into a registration rights agreement with the Purchasers
under which the Company grants to the Purchasers the registration rights set
forth on Exhibit B hereto. The Purchasers acknowledge that the Company intends
to grant registration rights to certain other shareholders of the Company as
well in such registration rights agreement.
14
ARTICLE IX
TERMINATION OF AGREEMENT
9.1 Termination. This Agreement may be terminated prior to the
Closing as follows:
(a) at the election of the Sellers or the Purchasers by
written notice to the other parties hereto, if an underwriting agreement is
entered into in connection with the IPO and then such underwriting agreement is
subsequently terminated; or
(b) at the election of the Sellers or the Purchasers by
written notice to the other parties hereto after 5:00 p.m., New York time, on
August 31, 2005, if the Closing shall not have occurred, unless such date is
extended by the mutual written consent of the Sellers and the Purchasers.
If this Agreement so terminates, it shall become null and void and
have no further force or effect, except as provided in Section 9.2.
9.2 Survival. If this Agreement is terminated and the transactions
contemplated hereby are not consummated as described above, then (a) this
Agreement shall become void and of no further force and effect, except for the
provisions of this Section 9.2 and Sections 10.2 through 10.12 (inclusive) and
(b) none of the parties hereto shall have any liability in respect of a
termination of this Agreement pursuant to Section 9.1(a) or Section 9.1(b).
ARTICLE X
MISCELLANEOUS
10.1 Survival of Representations and Warranties. All of the
representations and warranties made herein shall survive the execution and
delivery of this Agreement.
10.2 Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, facsimile, courier
service or personal delivery:
if to the Sellers, to:
15
with a copy to:
if to the Purchasers, to:
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Alder Castle, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
if to the Company, to:
Net 1 UEPS Technologies, Inc.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Cnr. ▇▇▇ ▇▇▇▇▇ Avenue and ▇▇▇▇▇▇ Road
Rosebank
Johannesburg
South Africa
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: Dr. Serge C.P. Belamant
16
with a copy to:
DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Esq.
All such notices, demands and other communications shall be deemed
to have been duly given: (i) when delivered by hand, if personally delivered;
(ii) one Business Day after being sent, if sent via a reputable nationwide
overnight courier service guaranteeing next business day delivery; (iii) five
(5) Business Days after being sent, if sent by registered or certified mail,
return receipt requested, postage prepaid; and (iv) when receipt is mechanically
acknowledged, if sent by facsimile. Any party may by notice given in accordance
with this Section 10.2 designate another address or Person for receipt of
notices hereunder. Any party may give any notice, request, consent or other
communication under this Agreement using any other means (including, without
limitation, personal delivery, messenger service, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party to whom it is given.
10.3 Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. Subject to applicable securities laws
and the terms and conditions thereof, the Purchasers may assign any of their
rights under this Agreement to any of their respective Affiliates, but only
after the Closing has occurred. None of the Sellers or the Company may assign
any of their rights under this Agreement without the written consent of the
Purchasers. Except as provided in Article VIII, no Person other than the parties
hereto and their successors and permitted assigns is intended to be a
beneficiary of this Agreement.
10.4 Amendment and Waiver.
(a) No failure or delay on the part of any of the parties
hereto in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by any of the parties hereto from the terms of any
provision of this Agreement, shall be effective (i) only if it is made or given
in writing and signed by all of the parties hereto, and (ii) only in the
specific instance and for the specific purpose for which made or given.
10.5 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
17
10.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
10.7 Consent to Jurisdiction; Service of Process.
(a) Any Legal Action arising out of or relating to this
Agreement or the transactions contemplated hereby may be instituted in any
Federal or State court sitting in New York City, New York. Each party agrees not
to assert, by way of motion, as a defense or otherwise, in any such Legal
Action, that (i) it is not subject personally to the jurisdiction of such court,
(ii) the Legal Action is brought in an inconvenient forum, (iii) the venue is
improper or (iv) this Agreement or the subject matter hereof may not be enforced
in or by such court. Each party further irrevocably submits to the exclusive
jurisdiction of such court in any such Legal Action.
(b) Any and all service of process and any other notice in any
such Legal Action shall be effective against any party if given personally or by
registered or certified mail, return receipt requested, or by any other means of
mail that requires a signed receipt, postage prepaid, mailed to such party at
the address provided in Section 10.2. Nothing herein contained shall be deemed
to affect the right of any party to serve process in any manner permitted by
law.
10.8 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVER IN THE EVENT OF ANY SUCH ACTION, (B) SUCH PARTY HAS CONSIDERED
THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY,
AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.8.
10.9 Severability. If any one or more of the provisions contained in
this Agreement, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
18
10.10 Rules of Construction. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
10.11 Entire Agreement. This Agreement, together with the exhibits
hereto, are intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, representations, warranties or
undertakings, other than those set forth or referred to herein. This Agreement,
together with the exhibits hereto, supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
10.12 Public Announcements. The parties to this Agreement agree not
to, and to cause their Affiliates not to, make any public announcement
concerning this Agreement or the transactions contemplated hereby prior to the
Closing unless (a) such public announcement has been approved in advance by all
of the parties hereto or (b) required by any Requirement of Law or the rules and
regulations of any stock exchange or quotation system on which securities of the
Company are listed or traded. The Company will give the Purchasers a reasonable
opportunity to review and comment on any public announcements or filings which
make reference to any of the transactions contemplated by this Agreement.
10.13 Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
10.14 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
[Signature page follows]
19
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Stock Purchase Agreement on the date first written above.
SELLERS:
CI LAW TRUSTEES LIMITED FOR THE SAN ▇▇▇▇▇ TRUST
By: _____________________________________________
Name:
Title:
_________________________________________________
Serge C.P. Belamant
SOUTH AFRICAN PRIVATE EQUITY FUND III, L.P.
By: ____________________, its General Partner
By: _____________________________________________
Name:
Title:
SOUTH AFRICAN PRIVATE EQUITY TRUST III
By: _____________________________________________
Name:
Title:
BRENTHURST PRIVATE EQUITY II LIMITED
By: _____________________________________________
Name:
Title:
BRENTHURST PRIVATE EQUITY SOUTH AFRICA I LIMITED
By: _____________________________________________
Name:
Title:
20
PURCHASERS:
GENERAL ATLANTIC PARTNERS 80, L.P.
By: GENERAL ATLANTIC LLC, its General Partner
By: _____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
GAPSTAR, LLC
By: GENERAL ATLANTIC LLC, its Sole Member
By: _____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
GAP COINVESTMENTS III, LLC
By: _____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
GAP COINVESTMENTS IV, LLC
By: _____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
GAPCO GMBH & CO. KG
By: GAPCO MANAGEMENT GMBH,
its General Partner
By: _____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
21
COMPANY:
NET 1 UEPS TECHNOLOGIES, INC.
By: _____________________________________________
Name:
Title:
Exhibit A
PURCHASED SHARES
PURCHASER PERCENTAGE
---------------------------------- ----------
General Atlantic Partners 80, L.P. 91.0840%
GapStar, LLC 1.8750%
GAP Coinvestments III, LLC 0.1563%
GAP Coinvestments IV, LLC 5.4572%
GAPCO GmbH & Co. KG 1.4275%
SELLER PERCENTAGE
------------------------------------------------ ----------
CI Law Trustees Limited for the San ▇▇▇▇▇ Trust 4.94%
Dr. Serge C.P. Belamant 10.12%
South African Private Equity Fund III, L.P. 70.17%
South African Private Equity Trust III 1.01%
Brenthurst Private Equity II Limited 8.91%
Brenthurst Private Equity South Africa I Limited 4.86%
Exhibit B
REGISTRATION RIGHTS
- The Purchasers will be entitled to two demand registration rights (such
demand registration rights to be long form if the Company is not eligible
to register its shares of common stock on Form S-3) for an underwritten
offering and shall have customary "piggyback" registration rights with
respect to any primary or secondary securities offering by the Company or
any stockholder of the Company.
- In addition, the Purchasers may at any time require the Company to include
its shares of Common Stock in a shelf registration statement and keep such
registration statement continuously effective for sales thereunder.
- All registration will be effected at the Company's expense (except for
underwriters' discounts and commissions), including one outside counsel
for the Purchasers.