Exhibit 10.22
PLACEMENT AGENT AGREEMENT
July 18, 2005
CI Law Trustees Limited for the San Xxxxx Trust
Dr. Serge C.P. Belamant
Net 1 UEPS Technologies, Inc.
x/x Xxx 0 XXXX Xxxxxxxxxxxx, Inc.
Xxxxxxxxx Xxxxx, 0xx Xxxxx
Cnr. Xxx Xxxxx Avenue and Xxxxxx Road
Rosebank
Johannesburg
South Africa
Brait International Limited
South African Private Equity Fund III, L.P.
South African Private Equity Trust III
c/o South African Private Equity Fund III, X.X.
Xxxxxx House
P.O. Box 908
Xxxxxx Town, Grand Cayman
Cayman Islands
Brenthurst Private Equity II Limited
Brenthurst Private Equity South Africa I Limited
9 Columbus Centre
Pelican Drive
Road Town
Tortola
British Virgin Islands
Dear Sirs:
SECTION 1. APPOINTMENT OF PLACEMENT AGENT. This Agreement confirms our
understanding that CI Law Trustees Limited for the San Xxxxx Trust, Dr. Serge
C.P. Belamant, Brait International Limited, South African Private Equity Fund
III, L.P., South African Private Equity Trust III, Brenthurst Private Equity II
Limited and Brenthurst Private Equity South Africa I Limited (collectively, the
"Sellers") hereby appoint Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx
Securities Inc. as their placement agents (collectively, the "Placement Agents")
in connection with the proposed private placement referenced in the stock
purchase agreement (the "Stock Purchase Agreement") by and among the Sellers,
the Purchasers (as defined in the Stock Purchase Agreement) and Net 1 UEPS
Technologies, Inc., a Florida corporation (the "Company") and dated July 18,
2005. All
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capitalized terms used in this Agreement but not defined herein shall have the
same meaning as defined in the Stock Purchase Agreement. On the basis of the
representations and warranties contained in the Stock Purchase Agreement, but
subject to the terms and conditions set forth herein, the Placement Agents agree
to use their reasonable efforts to solicit and receive offers to purchase the
Purchased Shares. Notwithstanding anything to the contrary contained in this
Agreement, the Placement Agent shall have no obligation to purchase any of the
Purchased Shares, or any liability to the Company if any prospective purchaser
fails to consummate a purchase of any of the Purchase Shares.
SECTION 2. FEES. (a). Once the sale of the Purchased Shares is
consummated, the Placement Agents will charge the Sellers a placement fee (the
"Placement Fee") per Purchased Share equivalent to the Public Offering Price (as
defined in the underwriting agreement (the "Underwriting Agreement") to be
entered into between the Company, certain shareholders of the Company named in
Schedule I thereto and the Underwriters (as defined therein)) less the Purchase
Price (as defined in the Underwriting Agreement) and each Seller will pay the
Placement Fee in respect of the Purchased Shares sold by it on the Closing Date
in immediately available funds.
(b) The right of the Placement Agents to receive the fees set forth in
this Section 2 shall survive the termination of this Agreement in accordance
with Section 6 hereof.
SECTION 3. ADVERTISING. Upon the completion of the Placement, the
Placement Agents will be entitled to advertise the transaction in their usual
formats, at their expense in periodicals of their choice.
SECTION 4. INDEMNITY AND CONTRIBUTION. The Company and the Placement
Agents agree to the indemnification and contribution arrangements set forth in
Schedule I hereto.
SECTION 5. INDEMNITY TO SURVIVE. The indemnities set forth herein will
remain in full force and effect regardless of any investigation made by or on
behalf of the Placement Agents or the Company or any of their respective
officers, directors or controlling persons, and will survive delivery of any
payment for the Purchased Shares. The provisions of this Section and
Sections 2, 4, 6, and 7 hereof shall survive the termination or cancellation
of this Agreement.
SECTION 6. TERMINATION. The Placement Agents' services hereunder may
be terminated with or without cause by either the Sellers or the Placement
Agents at any time and without liability or continuing obligation to the
Placement Agents or the Sellers, except for any compensation earned by the
Placement Agents to the date of termination.
SECTION 7. GOVERNING LAW. This Agreement (including Schedule I) shall
be governed by and construed in accordance with the internal laws of the State
of New York.
SECTION 8. COUNTERPARTS; HEADINGS. This Agreement may be signed in
counterparts with the same effect as if the signatures thereto were on the same
instrument. The headings of the Sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement between the Placement Agents,
the Sellers and the Company.
Very truly yours,
Xxxxxx Xxxxxxx & Co. Incorporated
By:___________________________
Name:
Title:
X.X. Xxxxxx Securities Inc.
By:___________________________
Name:
Title:
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Accepted as of July 18, 2005
CI Law Trustees Limited for the San Xxxxx Trust
Dr. Serge C.P. Belamant
By: /s/ Dr. Serge C.P. Belamant
------------------------------
Name: Dr. Serge C.P. Belamant
Title:
Brait International Limited
By: /s/ Xxxxx Childs
------------------------------
Name: Xxxxx Childs
Title: Director
South African Private Equity Fund III, L.P.
By: /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Director
South African Private Equity Trust III
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Manager
Brenthurst Private Equity II Limited
Brenthurst Private Equity South Africa I Limited
By: /s/ Alasdair X.X. Xxxx
------------------------------
Name: Alasdair X.X. Xxxx
Title: Managing Partner, Southern Cross Capital LLC
Net 1 UEPS Technologies, Inc.
By: /s/
------------------------------
Name:
Title:
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SCHEDULE I
This Schedule I is attached to and incorporated by reference into the
Placement Agent Agreement dated July 18, 2005 (the "Agreement"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Agreement or the Stock Purchase Agreement.
The Company agrees to indemnify and hold harmless the Placement Agents and
their affiliates, and the respective directors, officers, agents and employees
of the Placement Agents and their affiliates and each other entity or person, if
any, controlling the Placement Agents or any of their affiliates within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (the Placement Agents and each such entity or person being collectively
referred to as a "Placement Agent Indemnified Party") from and against any
losses, claims, damages or liabilities (or actions in respect thereof) relating
to, arising out of or in connection with (i) the sale of the Purchased Shares or
(ii) the matters contemplated by the Agreement or the transactions contemplated
by the Stock Purchase Agreement caused by any untrue statement or alleged untrue
statement of a material fact contained in the Company's Registration Statement
on Form S-1 (Registration Number 333-125273) or by any omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The Company will reimburse any Placement Agent Indemnified
Party for all expenses (including, without limitation, fees and disbursements of
counsel) incurred by such Placement Agent Indemnified Party in connection with
investigating, preparing or defending any such action or claim, whether or not
in connection with pending or threatened litigation to which the Placement Agent
Indemnified Party is a party, in each case, as such expenses are incurred or
paid. With respect to clause (i) above, the Company will not, however, be
responsible for any losses, claims, damages or liabilities (or expenses relating
thereto) that are finally judicially determined to have resulted from the bad
faith or gross negligence of such Placement Agent Indemnified Party. The Company
also agrees that no Placement Agent Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company
for or in connection with the sale of the Purchased Shares, except for any such
liability for losses, claims, damages or liabilities with respect to clause (i)
above incurred by the Company that are finally judicially determined to have
resulted from the bad faith or gross negligence of such Placement Agent
Indemnified Party.
In case any proceeding (including any governmental investigation) shall be
instituted involving any Placement Agent Indemnified Party, such Placement Agent
Indemnified Party shall promptly notify the Company in writing and the Company,
upon request of the Placement Agent Indemnified Party, shall retain counsel
reasonably satisfactory to the Placement Agent Indemnified Party to represent
the Placement Agent Indemnified Party and any others the Company may designate
in such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, such Placement Agent
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Placement Agent
Indemnified Party unless (i) the Company and the Placement Agent
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Indemnified Party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the Company and the Placement Agent Indemnified Party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Company shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm (in addition to any local counsel) for all such Placement
Agent Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firms for the
Placement Agent Indemnified Parties, such firms shall be designated in writing
by the Placement Agent Indemnified Parties. The Company shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Company agrees to indemnify each Placement Agent Indemnified Party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time a Placement Agent
Indemnified Party shall have requested the Company to reimburse such Placement
Agent Indemnified Party for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Company agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by the Company
of the aforesaid request and (ii) the Company shall not have reimbursed the
Placement Agent Indemnified Party in accordance with such request prior to the
date of such settlement. The Company shall not, without the prior written
consent of each Placement Agent Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Placement Agent
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Placement Agent Indemnified Party, unless such
settlement includes an unconditional release of such Placement Agent Indemnified
Party from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the second paragraph of this
Schedule I is unavailable to a Placement Agent Indemnified Party in respect of
any losses, claims, damages or liabilities referred to therein, then the
Company, in lieu of indemnifying such Placement Agent Indemnified Party
thereunder, shall contribute to the amount paid or payable by such Placement
Agent Indemnified Party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and its shareholders, on the one hand, and the
Placement Agents, on the other hand, from the sale of the Purchased Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and of the Placement Agents in connection with the actions,
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and its shareholders and the Placement
Agents shall be deemed to be in the same respective proportions as the net
proceeds that the Sellers will receive from the proposed sale of the Purchased
Shares (after deducting the Placement Fee, but before deducting expenses) and
the total Placement Fee that the Placement Agents will receive from the proposed
sale of the Purchased Shares bear to the aggregate price at which the Purchased
Shares will be sold to Purchasers pursuant to the proposed sale of the Purchased
Shares. The relative fault of the Company, on the one hand, and the Placement
Agents,
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on the other hand (i) in the case of any untrue or alleged untrue statement of a
material fact or any omission or alleged omission to state a material fact,
shall be determined by reference to, among other things, whether such statement
or omission relates to information supplied by the Company and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and (ii) in the case of any other action or
omission, shall be determined by reference to, among other things, whether such
action or omission was taken or omitted to be taken by the Company or by the
Placement Agents and the parties' relative intent, knowledge, access to
information and opportunity to prevent such action or omission.
The Company and the Placement Agents agree that it would not be just and
equitable if contribution pursuant to this Schedule I were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by a Placement Agent Indemnified Party as
a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Placement Agent Indemnified Party in connection with investigating or
defending any such action or claim. Notwithstanding any of the provisions of
this Schedule I, in no event shall the Placement Agents' aggregate contribution
to the amount paid or payable exceed the aggregate amount of fees actually
received by them under the Agreement.
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