Exhibit C
SELLING SHAREHOLDERS'
IRREVOCABLE POWER OF ATTORNEY
FOR SALE OF COMMON STOCK, PAR VALUE $0.001
PER SHARE, OF NET 1 UEPS TECHNOLOGIES, INC.
Dr. Xxxxx X.X. Belamant
Xx. Xxxxxx Xxxxxx Xxxxx
c/o Net 1 UEPS Technologies, Inc.
President Place, 4th Floor
Cnr. Xxx Xxxxx Avenue and Xxxxxx Road
Rosebank,Johannesburg, South Africa
Ladies and Gentlemen:
Reference is made to that certain Letter of Transmittal and Custody
Agreement, dated the date hereof (the "CUSTODY AGREEMENT"), by and among The
Bank of New York, as Custodian (the "CUSTODIAN"), and Dr. Xxxxx X.X. Xxxxxxxx
and Xx. Xxxxxx Xxxxxx Xxxxx, as attorneys-in-fact. Capitalized terms used, but
not defined, herein shall have the meanings ascribed to them in the Custody
Agreement.
Certain of the undersigned, constituting the Public Principal Selling
Shareholders, Net 1 UEPS Technologies, Inc. (the "COMPANY"), and certain other
holders of the Company's common stock (such holders and the Public Principal
Selling Shareholders being hereinafter sometimes collectively referred to as the
"SELLING SHAREHOLDERS"), propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX
XXXXXXX"), X.X. Xxxxxx Securities Inc. ("JPMORGAN"), Xxxxxx X. Xxxxx & Co.
Incorporated, Xxxxxxxxx & Company, Inc. and Xxxxxx Xxxxxx Partners LLC
(collectively, the "Underwriters"). The Selling Shareholders propose to sell to
the Underwriters pursuant to the Underwriting Agreement certain authorized and
issued common stock, par value $0.001 per share, of the Company (the "COMMON
STOCK") owned by them. It is understood that at this time there is no commitment
on the part of the Underwriters to purchase any Common Stock and no assurance
that the Underwriting Agreement will be entered into by the Company or the
Underwriters.
Certain of the undersigned, constituting the Private Principal Selling
Shareholders, the Company and the Purchasers have entered into that certain
Stock Purchase Agreement, dated as of July 18, 2005. The Selling Shareholders
include the Private Principal Selling Shareholders. Pursuant to the Purchase
Agreement, the Private Principal Selling Shareholders have agreed to sell to the
Purchasers, and the Purchasers have agreed to purchase from the Private
Principal Selling Shareholders, certain shares of the Company's Common Stock
(the
"PRIVATE SHARES"). It is understood that the closing of the transactions
contemplated in the Purchase Agreement are conditioned upon the closing of the
transactions contemplated in the Underwriting Agreement.
The undersigned hereby irrevocably constitutes and appoints Dr. Xxxxx
X.X. Belamant and Xx. Xxxxxx Xxxxxx Xxxxx, each with full power and authority to
act together or alone in any matter hereunder and with full power of
substitution, the true and lawful attorneys-in-fact of the undersigned
(individually an "ATTORNEY" and collectively the "ATTORNEYS"), with full power
and authority in the name of, for and on behalf of, the undersigned with respect
to all matters arising in connection with the exercise of stock options (if
applicable) and the sale of shares of Common Stock by any of the undersigned
including, but not limited to, the power and authority on behalf of any of the
undersigned to take any and all of the following actions:
1. (A) To sell, assign, transfer and deliver to the several
Underwriters pursuant to the Underwriting Agreement up to the number of shares
of Common Stock set forth on the signature page hereof, such Common Stock to be
represented by certificate(s) of Common Stock deposited by the undersigned
Public Principal Selling Shareholders pursuant to the Custody Agreement or by
stock option exercise forms executed by the Attorneys, at a purchase price per
share to be paid by the Underwriters, as determined by negotiation between the
Company, the Attorneys and Xxxxxx Xxxxxxx and JPMorgan, but at the same price
per share at which all other Selling Shareholders sell Common Stock to the
Underwriters, and to complete, execute and deliver a stock power in relation to
the sale of the foregoing number of shares of Common Stock; and (B) to sell,
assign, transfer and deliver to the Purchasers pursuant to the Purchase
Agreement up to the number of shares of Common Stock set forth on the signature
page hereof, such Common Stock to be represented by certificate(s) of Common
Stock deposited by the undersigned Private Principal Selling Shareholders
pursuant to the Custody Agreement, at a purchase price per share to be paid by
the Purchasers, as determined in accordance with the Purchase Agreement, and to
complete, execute and deliver a stock power in relation to the sale of the
foregoing number of shares of Common Stock;
2. To determine, in conjunction with the Company, the number of shares
of Common Stock to be sold by the undersigned to the Underwriters which number
shall be no greater but may be fewer than that set forth on the signature page
hereof (such total number of shares, as is finally determined by the Attorneys
and the Company and set forth opposite the name of the undersigned in Schedule I
to the Underwriting Agreement is hereinafter referred to as the "PUBLIC SHARES"
and, together with the total number of Private Shares, are collectively referred
to as the "SHARES");
3. To execute, deliver and perform the Underwriting Agreement with full
power to make such amendments to the Underwriting Agreement as the
-2-
Attorneys, in their sole discretion, may deem advisable and, together with
Xxxxxx Xxxxxxx and JPMorgan and a committee of the Board of Directors of the
Company, to determine the public offering price and the purchase price per share
of Common Stock to be paid by the Underwriters (subject to paragraph 1 above)
and the other terms of sale; and to perform the Purchase Agreement with full
power to make such amendments to the Purchase Agreement as the Attorneys, in
their sole discretion, may deem advisable;
4. To execute and deliver any stock option exercise forms or any other
documents that may be required in connection with the exercise of a stock option
of the Company held by the undersigned;
5. On behalf of the undersigned, to make the representations and
warranties and enter into the agreements contained in the Underwriting Agreement
(including, without limitation, entering into "lock-up" agreements);
6. (a) To instruct the Custodian and the transfer agent for the Common
Stock as the Attorneys shall determine on all matters pertaining to the delivery
and custody of certificates therefor and (b) to enter into and amend the Custody
Agreement and any related documents in such manner as may be necessary to
consummate the transactions contemplated by the Underwriting Agreement and the
Purchase Agreement on behalf of any of the undersigned or as the Attorneys may
determine to be not materially adverse to any of the undersigned;
7. To incur or authorize the incurrence of any necessary or appropriate
expense in connection with the sale of the Shares and to determine the amount of
any transfer taxes payable in connection with transfer of the Shares to the
Underwriters or the Purchasers;
8. To take any and all steps deemed necessary or desirable by the
Attorneys in connection with the registration of the Shares under the Securities
Act of 1933, as amended (the "ACT"), the Securities Exchange Act of 1934, as
amended, and the securities or "blue sky" laws of various states and
jurisdictions, including, without limitation, the giving, making or filing of
such undertakings, consents to service of process and representations and
agreements and the taking of such other steps as the Attorneys may deem
necessary or desirable;
9. To retain legal counsel to represent the undersigned in connection
with any and all matters referred to herein (which counsel may, but need not be,
counsel for the Company);
10. To make, execute, acknowledge and deliver all such other contracts,
stock powers, orders, receipts, notices, instructions, certificates, letters and
other writings, including, without limitation, communications with the
Securities and Exchange Commission and the National Association of Securities
Dealers, Inc. ("NASD"), and in general to do all things and to take all actions
which the
-3-
Attorneys, in their sole discretion, may consider necessary or desirable in
connection with the sale of the Public Shares to the Underwriters and the public
offering thereof and the sale of Private Shares to the Purchasers, as fully as
could the undersigned if personally present and acting;
11. If necessary, to endorse (in blank or otherwise) on behalf of the
undersigned the certificate(s) representing the Shares and a stock power or
powers attached to such certificate(s); and
12. To sign such other certificates, documents and agreements and take
any and all other actions as the Attorneys may deem necessary or desirable in
connection with the consummation of the transactions contemplated by this Power
of Attorney.
Each Attorney may act alone in exercising the rights and powers
conferred on the Attorneys in this Power of Attorney, and the act of any
Attorney shall be the act of the Attorneys. Each Attorney is hereby empowered to
determine in his sole discretion the time or times when, the purpose for and the
manner in which any power herein conferred upon him shall be exercised, and the
conditions, provisions or covenants of any instrument or document which may be
executed by him pursuant hereto. The undersigned acknowledges that Xxxxx
Xxxxxxxx and Xxxxxx Xxxxx are Chief Executive Officer and Chief Financial
Officer, respectively, of the Company.
The undersigned Public Principal Selling Shareholders acknowledge
receipt of a copy of the Registration Statement on Form S-1 (the "REGISTRATION
STATEMENT") relating to the offering of the Public Shares and the other Common
Stock to be sold by the other Selling Shareholders and, if the over-allotment
option is exercised, by the Company (the "OFFERED SHARES") and a copy of the
preliminary form of the Underwriting Agreement. The undersigned Public Principal
Selling Shareholders have reviewed the Registration Statement and the
preliminary form of the Underwriting Agreement and understand the obligations
and agreements of the undersigned Public Principal Selling Shareholders set
forth in the Underwriting Agreement. ALL REPRESENTATIONS AND WARRANTIES OF THE
SELLING SHAREHOLDERS IN THE UNDERWRITING AGREEMENT WITH RESPECT TO THE
UNDERSIGNED PUBLIC PRINCIPAL SELLING SHAREHOLDERS ARE AS OF THE DATE HEREOF, AND
WILL BE AS OF THE DATE OF THE EXECUTION OF THE UNDERWRITING AGREEMENT AND THE
CLOSING DATE (AS DEFINED IN THE UNDERWRITING AGREEMENT), TRUE AND CORRECT. ALL
SUCH REPRESENTATIONS AND WARRANTIES WILL, AS PROVIDED IN THE UNDERWRITING
AGREEMENT, SURVIVE THE TERMINATION OF THE UNDERWRITING AGREEMENT AND THE
DELIVERY OF AND PAYMENT FOR THE PUBLIC SHARES.
The undersigned Private Principal Selling Shareholders have reviewed
the Purchase Agreement and understand the obligations and agreements of the
undersigned Private Principal Selling Shareholders set forth in the Purchase
Agreement. ALL REPRESENTATIONS AND WARRANTIES OF THE PRIVATE PRINCIPAL
-4-
SELLING SHAREHOLDERS IN THE PURCHASE AGREEMENT ARE AS OF THE DATE HEREOF, AND
WILL BE AS OF THE CLOSING DATE (AS DEFINED IN THE PURCHASE AGREEMENT), TRUE AND
CORRECT. ALL SUCH REPRESENTATIONS AND WARRANTIES WILL, AS PROVIDED IN THE
PURCHASE AGREEMENT, SURVIVE THE TERMINATION OF THE PURCHASE AGREEMENT AND THE
DELIVERY OF AND PAYMENT FOR THE PRIVATE SHARES.
Upon the execution and delivery of the Underwriting Agreement by the
Attorneys on behalf of the Selling Shareholders, the undersigned Public
Principal Selling Shareholders agree to be bound by and to perform each and
every covenant and agreement of the undersigned Public Principal Selling
Shareholders contained therein (including, without limitation, the agreements
contained therein regarding indemnification and contribution). The undersigned
Private Principal Selling Shareholders agree to continue to be bound by and to
perform each and every covenant and agreement of the undersigned Private
Principal Selling Shareholders contained in the Purchase Agreement (including,
without limitation, the agreements contained therein regarding indemnification
and contribution).
The undersigned agree, if so requested, to provide an opinion of
counsel, addressed to DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, U.S. counsel for the
Company, and Xxxxxx Xxxxxx, Inc., South Africa counsel for the Company, which
opinion shall expressly permit reliance thereon by DLA Xxxxx Xxxxxxx Xxxx Xxxx
US LLP and Xxxxxx Xxxxxx, Inc., setting forth such matters as DLA Xxxxx Xxxxxxx
Xxxx Xxxx US LLP and Xxxxxx Xxxxxx, Inc. may reasonably request in rendering
their respective opinions pursuant to the Underwriting Agreement or the Purchase
Agreement, as the case may be, and such other documentation as the Attorneys,
the Company, the Representatives, the Purchasers or any of their respective
counsel may request to effectuate any of the provisions hereof or of the
Underwriting Agreement or the Purchase Agreement, all of the foregoing to be in
form and substance satisfactory in all respects to the party requesting such
documentation.
This Power of Attorney and all authority conferred hereby are granted
and conferred subject to and in consideration of the interests of the Attorneys,
the several Underwriters, the Purchasers, the Company and any other Selling
Shareholders who may become parties to the Underwriting Agreement, and for the
purposes of completing the transactions contemplated by the Underwriting
Agreement, the Purchase Agreement and this Power of Attorney.
This Power of Attorney is an agency coupled with an interest and all
authority conferred hereby SHALL BE IRREVOCABLE, and shall not be terminated by
any act of the undersigned or by operation of law, whether by the death,
disability or incapacity of the undersigned (or either or any of the
undersigned) or by the occurrence of any other event or events (including,
without limitation, the termination of any trust or estate for which the
undersigned is acting as a fiduciary or fiduciaries, the death, disability or
incapacity of one or more trustees, guardians, executors or administrators under
such trust or estate, the dissolution or
-5-
liquidation of any corporation or partnership or bankruptcy with respect to the
undersigned) (any of the foregoing being hereinafter referred to as an "EVENT").
If an Event shall occur after the execution hereof but before completion of the
transactions contemplated by the Underwriting Agreement, the Purchase Agreement
or this Power of Attorney, then certificate(s) representing the Shares will be
delivered to the Underwriters and/or the Purchases by or on behalf of the
undersigned in accordance with the terms and conditions of the Underwriting
Agreement, the Purchase Agreement and the Custody Agreement and any actions
taken hereunder by the Attorneys shall be as valid as if such Event had not
occurred, regardless of whether or not the Custodian, the Attorneys, the
Underwriters, the Purchasers, or any one of them, shall have received notice of
such Event.
Notwithstanding any of the foregoing provisions, if the Underwriting
Agreement shall not have been executed and delivered prior to October 6, 2005,
then, upon the written notice of the undersigned on or after that date to the
Attorneys, this Power of Attorney shall terminate subject, however, to all
lawful action done or performed pursuant hereto prior to the receipt of actual
notice.
The undersigned Public Principal Selling Shareholders hereby represent,
warrant and agree with the Company, DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, Xxxxxx
Xxxxxx, Inc., the Underwriters, Xxxxx Xxxx & Xxxxxxxx, the Custodian, the
Attorneys and the other Selling Shareholders that:
1. The undersigned has, and on the Closing Date will have, valid title
to, or a valid "security entitlement" within the meaning of Section 8-501 of the
New York Uniform Commercial Code in respect of, the Shares free and clear of all
security interests, claims, liens, equities or other encumbrances and the legal
right and power, and all authorization and approval required by law, to enter
into the Underwriting Agreement and this Power of Attorney and to sell, transfer
and deliver the Shares or a security entitlement in respect of the Shares.
2. The Underwriting Agreement has been duly authorized by the
undersigned.
3. This Power of Attorney has been duly authorized and, when executed
and delivered by the person or persons appointed hereunder, shall constitute a
valid and binding instrument of the undersigned, and, pursuant to this Power of
Attorney, the undersigned has, among other things, authorized the Attorneys, or
any one of them, to execute and deliver on the undersigned's behalf the
Underwriting Agreement, the Custody Agreement and any other document that they,
or any one of them, may deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver the Shares pursuant
to the Underwriting Agreement.
-6-
4. Upon payment for the Shares to be sold by the undersigned pursuant
to this Agreement, delivery of such Shares, as directed by the Underwriters, to
Cede & Co. ("CEDE") or such other nominee as may be designated by the Depositary
Trust Company ("DTC"), registration of such Shares in the name of Cede or such
other nominee and the crediting of such Shares on the books of DTC to securities
accounts of the Underwriters (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (within the meaning of Section 8-105 of the New
York Uniform Commercial Code (the "UCC")) to such Shares), (A) DTC shall be a
"protected purchaser" of such Shares within the meaning of Section 8-303 of the
UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid
security entitlement in respect of such Shares and (C) no action based on any
"adverse claim", within the meaning of Section 8-102 of the UCC, to such Shares
may be asserted against the Underwriters with respect to such security
entitlement; for purposes of this representation, the undersigned may assume
that when such payment, delivery and crediting occur, (x) such Shares will have
been registered in the name of Cede or another nominee designated by DTC, in
each case on the Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (y) DTC will be registered as a
"clearing corporation" within the meaning of Section 8-102 of the UCC and (z)
appropriate entries to the accounts of the several Underwriters on the records
of DTC will have been made pursuant to the UCC.
5. The execution, delivery and performance of this Power of Attorney
and the Underwriting Agreement by or on behalf of the undersigned, the
compliance by the undersigned with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (a)
contravene any provision of (i) the certificate of incorporation, by-laws or
similar organizational documents of the undersigned, as applicable, (ii) any
agreement or other instrument binding upon the undersigned, or (iii) any
applicable law, judgment, order or decree of any governmental body, agency or
court having jurisdiction over the undersigned or (b) require any consent,
approval, authorization or order of, or qualification with, any governmental
body or agency (except such as may be required under the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares
and except in the cases of clauses (a)(ii) and (a)(iii) above, as would not have
a material adverse effect on the undersigned) .
6. The undersigned has no reason to believe that the representations
and warranties of the Company contained in Section 1 of the Underwriting
Agreement are not true and correct, is familiar with the Registration Statement
and has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement that has had, or may have, a material
adverse effect on the Company and its subsidiaries, taken as a whole. The
undersigned is not prompted by any information concerning the Company or its
subsidiaries which is not set forth in the Registration Statement to sell its
Shares pursuant to the Underwriting Agreement.
-7-
7. The Registration Statement, when it becomes effective, and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading provided that the
representations and warranties set forth in this paragraph 7 are limited to
statements or omissions made in reliance upon information relating to the
undersigned expressly for use in the Registration Statement or any amendments or
supplements thereto.
8. At any time during the period described in Section 7(c) of the
Underwriting Agreement, if there is any change in the information referred to in
paragraph 7 above, the undersigned will immediately notify you of such change.
9. Certificate(s) and any stock power(s) for up to the maximum number
of Common Stock that may be sold by the undersigned to the Underwriters have
been placed in custody with the Custodian for the purpose of effecting delivery
thereof under the Underwriting Agreement.
10. The undersigned will furnish any and all information which the
Company, the Underwriters or their respective counsel deems necessary or
desirable in connection with the preparation and filing of all amendments,
post-effective amendments and supplements to the Registration Statement, any
preliminary prospectus or the prospectus in the form first used to confirm sales
of Offered Shares (the "PROSPECTUS") or any other filing with any regulatory
body or agency (including the NASD), as well as any and all information which
the Commission, the NASD or any state securities regulatory authority may
request.
The foregoing representations, warranties and agreements, as well as
those contained in the Underwriting Agreement, are made for the benefit of, and
may be relied upon by, the other Selling Shareholders, the Attorneys, the
Company, DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, U.S. counsel for the Company,
Xxxxxx Xxxxxx, Inc., South Africa, counsel for the Company, the Underwriters,
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters and the Custodian and their
respective representatives, agents and counsel. In addition, the foregoing
representations, warranties and agreements shall remain operative and in full
force and effect, and shall survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any of the persons listed in the preceding sentence,
(ii) acceptance of the Shares and payment for them under the Underwriting
Agreement and (iii) termination of this Power of Attorney.
It is understood that the Attorneys assume no responsibility or
liability to any person other than to deal with the certificate(s) for Common
Stock deposited with the Custodian pursuant to the Custody Agreement and the
proceeds from the sale of the Shares in accordance with the provisions hereof.
The Attorneys make no representations with respect to and shall have no
responsibility for the
-8-
Registration Statement or the Prospectus (unless applicable law states
otherwise) nor, except as herein expressly provided, for any aspect of the
offering of Common Stock, and the Attorneys shall not be liable for any error of
judgment or for any act done or omitted or for any mistake of fact or law except
for the Attorneys' own gross negligence, willful misconduct or bad faith. The
undersigned agree to indemnify the Attorneys for and to hold the Attorneys,
jointly and severally, free from and harmless against any and all loss, claim,
damage, liability or expense incurred by or on behalf of the Attorneys, or any
of them, arising out of or in connection with acting as Attorneys under this
Power of Attorney, as well as the cost and expense of defending against any
claim of liability hereunder, and not due to the Attorneys' own negligence,
misconduct or bad faith. The undersigned agree that the Attorneys may consult
with counsel of their choice (which may but need not be counsel for the Company)
and the Attorneys shall have full and complete authorization and protection for
any action taken or suffered by the Attorneys, or any of them hereunder, in good
faith and in accordance with the opinion of such counsel.
It is understood that the Attorneys shall serve entirely without
compensation.
This Power of Attorney shall be binding upon the undersigned and the
heirs, legal representatives, distributees, successors and assigns of the
undersigned.
This Power of Attorney shall be governed by the laws of the State of
New York.
[remainder of page intentionally left blank]
-9-
Witness the due execution of the foregoing Power of Attorney as of the
date written below.
Maximum Number of
Common Stock to be Sold by
Selling Shareholder(s): __________
EXECUTED and DELIVERED as
a DEED by South African
Private Equity Fund III, L.P.
(acting by SAPEF III
International G.P. Limited,
its general partner)
/s/Xxxxxxx Xxxxxxx Xxxx *
----------------------------
DATED:__________, 2005 ----------------------------
Print Name and Address of Principal
Selling Shareholder(s) and Name and
Title of any Person Signing as Agent
or Fiduciary:
South African Private
Equity Fund III XX
Xxxxxx House
PO Box 908ST
Xxxx Street
Xxxxxx Town Grand Cayman
Cayman Islands
____________________
* To be signed in exactly the same manner as the Common Stock are registered.
-10-
Xxxxxx to and accepted by
the Attorneys:
/s/ Dr. Xxxxx X.X. Belamant
---------------------------
Dr. Xxxxx X.X. Belamant
/s/ Xx. Xxxxxx Xxxxxx Xxxxx
---------------------------
Xx. Xxxxxx Xxxxxx Xxxxx
-11-
SELLING SHAREHOLDERS'
IRREVOCABLE POWER OF ATTORNEY
FOR SALE OF COMMON STOCK, PAR VALUE $0.001
PER SHARE, OF NET 1 UEPS TECHNOLOGIES, INC.
Dr. Xxxxx X.X. Belamant
Xx. Xxxxxx Xxxxxx Xxxxx
c/o Net 1 UEPS Technologies, Inc.
President Place, 4th Floor
Cnr. Xxx Xxxxx Avenue and Xxxxxx Road
Rosebank, Johannesburg, South Africa
Ladies and Gentlemen:
Reference is made to that certain Letter of Transmittal and Custody
Agreement, dated the date hereof (the "CUSTODY AGREEMENT"), by and among The
Bank of New York, as Custodian (the "CUSTODIAN"), and Dr. Xxxxx X.X. Xxxxxxxx
and Xx. Xxxxxx Xxxxxx Xxxxx, as attorneys-in-fact. Capitalized terms used, but
not defined, herein shall have the meanings ascribed to them in the Custody
Agreement.
Certain of the undersigned, constituting the Public Principal Selling
Shareholders, Net 1 UEPS Technologies, Inc. (the "COMPANY"), and certain other
holders of the Company's common stock (such holders and the Public Principal
Selling Shareholders being hereinafter sometimes collectively referred to as the
"SELLING SHAREHOLDERS"), propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX
XXXXXXX"), X.X. Xxxxxx Securities Inc. ("JPMORGAN"), Xxxxxx X. Xxxxx & Co.
Incorporated, Xxxxxxxxx & Company, Inc. and Xxxxxx Xxxxxx Partners LLC
(collectively, the "UNDERWRITERS"). The Selling Shareholders propose to sell to
the Underwriters pursuant to the Underwriting Agreement certain authorized and
issued common stock, par value $0.001 per share, of the Company (the "COMMON
STOCK") owned by them. It is understood that at this time there is no commitment
on the part of the Underwriters to purchase any Common Stock and no assurance
that the Underwriting Agreement will be entered into by the Company or the
Underwriters.
Certain of the undersigned, constituting the Private Principal Selling
Shareholders, the Company and the Purchasers have entered into that certain
Stock Purchase Agreement, dated as of July 18, 2005. The Selling Shareholders
include the Private Principal Selling Shareholders. Pursuant to the Purchase
Agreement, the Private Principal Selling Shareholders have agreed to sell to the
Purchasers, and the Purchasers have agreed to purchase from the Private
Principal Selling Shareholders, certain shares of the Company's Common Stock
(the
"PRIVATE SHARES"). It is understood that the closing of the transactions
contemplated in the Purchase Agreement are conditioned upon the closing of the
transactions contemplated in the Underwriting Agreement.
The undersigned hereby irrevocably constitutes and appoints Dr. Xxxxx
X.X. Belamant and Xx. Xxxxxx Xxxxxx Xxxxx, each with full power and authority to
act together or alone in any matter hereunder and with full power of
substitution, the true and lawful attorneys-in-fact of the undersigned
(individually an "ATTORNEY" and collectively the "ATTORNEYS"), with full power
and authority in the name of, for and on behalf of, the undersigned with respect
to all matters arising in connection with the exercise of stock options (if
applicable) and the sale of shares of Common Stock by any of the undersigned
including, but not limited to, the power and authority on behalf of any of the
undersigned to take any and all of the following actions:
1. (A) To sell, assign, transfer and deliver to the several
Underwriters pursuant to the Underwriting Agreement up to the number of shares
of Common Stock set forth on the signature page hereof, such Common Stock to be
represented by certificate(s) of Common Stock deposited by the undersigned
Public Principal Selling Shareholders pursuant to the Custody Agreement or by
stock option exercise forms executed by the Attorneys, at a purchase price per
share to be paid by the Underwriters, as determined by negotiation between the
Company, the Attorneys and Xxxxxx Xxxxxxx and JPMorgan, but at the same price
per share at which all other Selling Shareholders sell Common Stock to the
Underwriters, and to complete, execute and deliver a stock power in relation to
the sale of the foregoing number of shares of Common Stock; and (B) to sell,
assign, transfer and deliver to the Purchasers pursuant to the Purchase
Agreement up to the number of shares of Common Stock set forth on the signature
page hereof, such Common Stock to be represented by certificate(s) of Common
Stock deposited by the undersigned Private Principal Selling Shareholders
pursuant to the Custody Agreement, at a purchase price per share to be paid by
the Purchasers, as determined in accordance with the Purchase Agreement, and to
complete, execute and deliver a stock power in relation to the sale of the
foregoing number of shares of Common Stock;
2. To determine, in conjunction with the Company, the number of shares
of Common Stock to be sold by the undersigned to the Underwriters which number
shall be no greater but may be fewer than that set forth on the signature page
hereof (such total number of shares, as is finally determined by the Attorneys
and the Company and set forth opposite the name of the undersigned in Schedule I
to the Underwriting Agreement is hereinafter referred to as the "PUBLIC SHARES"
and, together with the total number of Private Shares, are collectively referred
to as the "SHARES");
3. To execute, deliver and perform the Underwriting Agreement with full
power to make such amendments to the Underwriting Agreement as the
-2-
Attorneys, in their sole discretion, may deem advisable and, together with
Xxxxxx Xxxxxxx and JPMorgan and a committee of the Board of Directors of the
Company, to determine the public offering price and the purchase price per share
of Common Stock to be paid by the Underwriters (subject to paragraph 1 above)
and the other terms of sale; and to perform the Purchase Agreement with full
power to make such amendments to the Purchase Agreement as the Attorneys, in
their sole discretion, may deem advisable;
4. To execute and deliver any stock option exercise forms or any other
documents that may be required in connection with the exercise of a stock option
of the Company held by the undersigned;
5. On behalf of the undersigned, to make the representations and
warranties and enter into the agreements contained in the Underwriting Agreement
(including, without limitation, entering into "lock-up" agreements);
6. (a) To instruct the Custodian and the transfer agent for the Common
Stock as the Attorneys shall determine on all matters pertaining to the delivery
and custody of certificates therefor and (b) to enter into and amend the Custody
Agreement and any related documents in such manner as may be necessary to
consummate the transactions contemplated by the Underwriting Agreement and the
Purchase Agreement on behalf of any of the undersigned or as the Attorneys may
determine to be not materially adverse to any of the undersigned;
7. To incur or authorize the incurrence of any necessary or appropriate
expense in connection with the sale of the Shares and to determine the amount of
any transfer taxes payable in connection with transfer of the Shares to the
Underwriters or the Purchasers;
8. To take any and all steps deemed necessary or desirable by the
Attorneys in connection with the registration of the Shares under the Securities
Act of 1933, as amended (the "ACT"), the Securities Exchange Act of 1934, as
amended, and the securities or "blue sky" laws of various states and
jurisdictions, including, without limitation, the giving, making or filing of
such undertakings, consents to service of process and representations and
agreements and the taking of such other steps as the Attorneys may deem
necessary or desirable;
9. To retain legal counsel to represent the undersigned in connection
with any and all matters referred to herein (which counsel may, but need not be,
counsel for the Company);
10. To make, execute, acknowledge and deliver all such other contracts,
stock powers, orders, receipts, notices, instructions, certificates, letters and
other writings, including, without limitation, communications with the
Securities and Exchange Commission and the National Association of Securities
Dealers, Inc. ("NASD"), and in general to do all things and to take all actions
which the
-3-
Attorneys, in their sole discretion, may consider necessary or desirable in
connection with the sale of the Public Shares to the Underwriters and the public
offering thereof and the sale of Private Shares to the Purchasers, as fully as
could the undersigned if personally present and acting;
11. If necessary, to endorse (in blank or otherwise) on behalf of the
undersigned the certificate(s) representing the Shares and a stock power or
powers attached to such certificate(s); and
12. To sign such other certificates, documents and agreements and take
any and all other actions as the Attorneys may deem necessary or desirable in
connection with the consummation of the transactions contemplated by this Power
of Attorney.
Each Attorney may act alone in exercising the rights and powers
conferred on the Attorneys in this Power of Attorney, and the act of any
Attorney shall be the act of the Attorneys. Each Attorney is hereby empowered to
determine in his sole discretion the time or times when, the purpose for and the
manner in which any power herein conferred upon him shall be exercised, and the
conditions, provisions or covenants of any instrument or document which may be
executed by him pursuant hereto. The undersigned acknowledges that Xxxxx
Xxxxxxxx and Xxxxxx Xxxxx are Chief Executive Officer and Chief Financial
Officer, respectively, of the Company.
The undersigned Public Principal Selling Shareholders acknowledge
receipt of a copy of the Registration Statement on Form S-1 (the "REGISTRATION
STATEMENT") relating to the offering of the Public Shares and the other Common
Stock to be sold by the other Selling Shareholders and, if the over-allotment
option is exercised, by the Company (the "OFFERED SHARES") and a copy of the
preliminary form of the Underwriting Agreement. The undersigned Public Principal
Selling Shareholders have reviewed the Registration Statement and the
preliminary form of the Underwriting Agreement and understand the obligations
and agreements of the undersigned Public Principal Selling Shareholders set
forth in the Underwriting Agreement. ALL REPRESENTATIONS AND WARRANTIES OF THE
SELLING SHAREHOLDERS IN THE UNDERWRITING AGREEMENT WITH RESPECT TO THE
UNDERSIGNED PUBLIC PRINCIPAL SELLING SHAREHOLDERS ARE AS OF THE DATE HEREOF, AND
WILL BE AS OF THE DATE OF THE EXECUTION OF THE UNDERWRITING AGREEMENT AND THE
CLOSING DATE (AS DEFINED IN THE UNDERWRITING AGREEMENT), TRUE AND CORRECT. ALL
SUCH REPRESENTATIONS AND WARRANTIES WILL, AS PROVIDED IN THE UNDERWRITING
AGREEMENT, SURVIVE THE TERMINATION OF THE UNDERWRITING AGREEMENT AND THE
DELIVERY OF AND PAYMENT FOR THE PUBLIC SHARES.
The undersigned Private Principal Selling Shareholders have reviewed
the Purchase Agreement and understand the obligations and agreements of the
undersigned Private Principal Selling Shareholders set forth in the Purchase
Agreement. ALL REPRESENTATIONS AND WARRANTIES OF THE PRIVATE PRINCIPAL
-4-
SELLING SHAREHOLDERS IN THE PURCHASE AGREEMENT ARE AS OF THE DATE HEREOF, AND
WILL BE AS OF THE CLOSING DATE (AS DEFINED IN THE PURCHASE AGREEMENT), TRUE AND
CORRECT. ALL SUCH REPRESENTATIONS AND WARRANTIES WILL, AS PROVIDED IN THE
PURCHASE AGREEMENT, SURVIVE THE TERMINATION OF THE PURCHASE AGREEMENT AND THE
DELIVERY OF AND PAYMENT FOR THE PRIVATE SHARES.
Upon the execution and delivery of the Underwriting Agreement by the
Attorneys on behalf of the Selling Shareholders, the undersigned Public
Principal Selling Shareholders agree to be bound by and to perform each and
every covenant and agreement of the undersigned Public Principal Selling
Shareholders contained therein (including, without limitation, the agreements
contained therein regarding indemnification and contribution). The undersigned
Private Principal Selling Shareholders agree to continue to be bound by and to
perform each and every covenant and agreement of the undersigned Private
Principal Selling Shareholders contained in the Purchase Agreement (including,
without limitation, the agreements contained therein regarding indemnification
and contribution).
The undersigned agree, if so requested, to provide an opinion of
counsel, addressed to DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, U.S. counsel for the
Company, and Xxxxxx Xxxxxx, Inc., South Africa counsel for the Company, which
opinion shall expressly permit reliance thereon by DLA Xxxxx Xxxxxxx Xxxx Xxxx
US LLP and Xxxxxx Xxxxxx, Inc., setting forth such matters as DLA Xxxxx Xxxxxxx
Xxxx Xxxx US LLP and Xxxxxx Xxxxxx, Inc. may reasonably request in rendering
their respective opinions pursuant to the Underwriting Agreement or the Purchase
Agreement, as the case may be, and such other documentation as the Attorneys,
the Company, the Representatives, the Purchasers or any of their respective
counsel may request to effectuate any of the provisions hereof or of the
Underwriting Agreement or the Purchase Agreement, all of the foregoing to be in
form and substance satisfactory in all respects to the party requesting such
documentation.
This Power of Attorney and all authority conferred hereby are granted
and conferred subject to and in consideration of the interests of the Attorneys,
the several Underwriters, the Purchasers, the Company and any other Selling
Shareholders who may become parties to the Underwriting Agreement, and for the
purposes of completing the transactions contemplated by the Underwriting
Agreement, the Purchase Agreement and this Power of Attorney.
This Power of Attorney is an agency coupled with an interest and all
authority conferred hereby SHALL BE IRREVOCABLE, and shall not be terminated by
any act of the undersigned or by operation of law, whether by the death,
disability or incapacity of the undersigned (or either or any of the
undersigned) or by the occurrence of any other event or events (including,
without limitation, the termination of any trust or estate for which the
undersigned is acting as a fiduciary or fiduciaries, the death, disability or
incapacity of one or more trustees, guardians, executors or administrators under
such trust or estate, the dissolution or
-5-
liquidation of any corporation or partnership or bankruptcy with respect to the
undersigned) (any of the foregoing being hereinafter referred to as an "EVENT").
If an Event shall occur after the execution hereof but before completion of the
transactions contemplated by the Underwriting Agreement, the Purchase Agreement
or this Power of Attorney, then certificate(s) representing the Shares will be
delivered to the Underwriters and/or the Purchases by or on behalf of the
undersigned in accordance with the terms and conditions of the Underwriting
Agreement, the Purchase Agreement and the Custody Agreement and any actions
taken hereunder by the Attorneys shall be as valid as if such Event had not
occurred, regardless of whether or not the Custodian, the Attorneys, the
Underwriters, the Purchasers, or any one of them, shall have received notice of
such Event.
Notwithstanding any of the foregoing provisions, if the Underwriting
Agreement shall not have been executed and delivered prior to October 6, 2005,
then, upon the written notice of the undersigned on or after that date to the
Attorneys, this Power of Attorney shall terminate subject, however, to all
lawful action done or performed pursuant hereto prior to the receipt of actual
notice.
The undersigned Public Principal Selling Shareholders hereby represent,
warrant and agree with the Company, DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, Xxxxxx
Xxxxxx, Inc., the Underwriters, Xxxxx Xxxx & Xxxxxxxx, the Custodian, the
Attorneys and the other Selling Shareholders that:
1. The undersigned has, and on the Closing Date will have, valid title
to, or a valid "security entitlement" within the meaning of Section 8-501 of the
New York Uniform Commercial Code in respect of, the Shares free and clear of all
security interests, claims, liens, equities or other encumbrances and the legal
right and power, and all authorization and approval required by law, to enter
into the Underwriting Agreement and this Power of Attorney and to sell, transfer
and deliver the Shares or a security entitlement in respect of the Shares.
2. The Underwriting Agreement has been duly authorized by the
undersigned.
3. This Power of Attorney has been duly authorized and, when executed
and delivered by the person or persons appointed hereunder, shall constitute a
valid and binding instrument of the undersigned, and, pursuant to this Power of
Attorney, the undersigned has, among other things, authorized the Attorneys, or
any one of them, to execute and deliver on the undersigned's behalf the
Underwriting Agreement, the Custody Agreement and any other document that they,
or any one of them, may deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver the Shares pursuant
to the Underwriting Agreement.
-6-
4. Upon payment for the Shares to be sold by the undersigned pursuant
to this Agreement, delivery of such Shares, as directed by the Underwriters, to
Cede & Co. ("CEDE") or such other nominee as may be designated by the Depositary
Trust Company ("DTC"), registration of such Shares in the name of Cede or such
other nominee and the crediting of such Shares on the books of DTC to securities
accounts of the Underwriters (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (within the meaning of Section 8-105 of the New
York Uniform Commercial Code (the "UCC")) to such Shares), (A) DTC shall be a
"protected purchaser" of such Shares within the meaning of Section 8-303 of the
UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid
security entitlement in respect of such Shares and (C) no action based on any
"adverse claim", within the meaning of Section 8-102 of the UCC, to such Shares
may be asserted against the Underwriters with respect to such security
entitlement; for purposes of this representation, the undersigned may assume
that when such payment, delivery and crediting occur, (x) such Shares will have
been registered in the name of Cede or another nominee designated by DTC, in
each case on the Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (y) DTC will be registered as a
"clearing corporation" within the meaning of Section 8-102 of the UCC and (z)
appropriate entries to the accounts of the several Underwriters on the records
of DTC will have been made pursuant to the UCC.
5. The execution, delivery and performance of this Power of Attorney
and the Underwriting Agreement by or on behalf of the undersigned, the
compliance by the undersigned with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (a)
contravene any provision of (i) the certificate of incorporation, by-laws or
similar organizational documents of the undersigned, as applicable, (ii) any
agreement or other instrument binding upon the undersigned, or (iii) any
applicable law, judgment, order or decree of any governmental body, agency or
court having jurisdiction over the undersigned or (b) require any consent,
approval, authorization or order of, or qualification with, any governmental
body or agency (except such as may be required under the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares
and except in the cases of clauses (a)(ii) and (a)(iii) above, as would not have
a material adverse effect on the undersigned) .
6. The undersigned has no reason to believe that the representations
and warranties of the Company contained in Section 1 of the Underwriting
Agreement are not true and correct, is familiar with the Registration Statement
and has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement that has had, or may have, a material
adverse effect on the Company and its subsidiaries, taken as a whole. The
undersigned is not prompted by any information concerning the Company or its
subsidiaries which is not set forth in the Registration Statement to sell its
Shares pursuant to the Underwriting Agreement.
-7-
7. The Registration Statement, when it becomes effective, and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading provided that the
representations and warranties set forth in this paragraph 7 are limited to
statements or omissions made in reliance upon information relating to the
undersigned expressly for use in the Registration Statement or any amendments or
supplements thereto.
8. At any time during the period described in Section 7(c) of the
Underwriting Agreement, if there is any change in the information referred to in
paragraph 7 above, the undersigned will immediately notify you of such change.
9. Certificate(s) and any stock power(s) for up to the maximum number
of Common Stock that may be sold by the undersigned to the Underwriters have
been placed in custody with the Custodian for the purpose of effecting delivery
thereof under the Underwriting Agreement.
10. The undersigned will furnish any and all information which the
Company, the Underwriters or their respective counsel deems necessary or
desirable in connection with the preparation and filing of all amendments,
post-effective amendments and supplements to the Registration Statement, any
preliminary prospectus or the prospectus in the form first used to confirm sales
of Offered Shares (the "PROSPECTUS") or any other filing with any regulatory
body or agency (including the NASD), as well as any and all information which
the Commission, the NASD or any state securities regulatory authority may
request.
The foregoing representations, warranties and agreements, as well as
those contained in the Underwriting Agreement, are made for the benefit of, and
may be relied upon by, the other Selling Shareholders, the Attorneys, the
Company, DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, U.S. counsel for the Company,
Xxxxxx Xxxxxx, Inc., South Africa, counsel for the Company, the Underwriters,
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters and the Custodian and their
respective representatives, agents and counsel. In addition, the foregoing
representations, warranties and agreements shall remain operative and in full
force and effect, and shall survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any of the persons listed in the preceding sentence,
(ii) acceptance of the Shares and payment for them under the Underwriting
Agreement and (iii) termination of this Power of Attorney.
It is understood that the Attorneys assume no responsibility or
liability to any person other than to deal with the certificate(s) for Common
Stock deposited with the Custodian pursuant to the Custody Agreement and the
proceeds from the sale of the Shares in accordance with the provisions hereof.
The Attorneys make no representations with respect to and shall have no
responsibility for the
-8-
Registration Statement or the Prospectus (unless applicable law states
otherwise) nor, except as herein expressly provided, for any aspect of the
offering of Common Stock, and the Attorneys shall not be liable for any error of
judgment or for any act done or omitted or for any mistake of fact or law except
for the Attorneys' own gross negligence, willful misconduct or bad faith. The
undersigned agree to indemnify the Attorneys for and to hold the Attorneys,
jointly and severally, free from and harmless against any and all loss, claim,
damage, liability or expense incurred by or on behalf of the Attorneys, or any
of them, arising out of or in connection with acting as Attorneys under this
Power of Attorney, as well as the cost and expense of defending against any
claim of liability hereunder, and not due to the Attorneys' own negligence,
misconduct or bad faith. The undersigned agree that the Attorneys may consult
with counsel of their choice (which may but need not be counsel for the Company)
and the Attorneys shall have full and complete authorization and protection for
any action taken or suffered by the Attorneys, or any of them hereunder, in good
faith and in accordance with the opinion of such counsel.
It is understood that the Attorneys shall serve entirely without
compensation.
This Power of Attorney shall be binding upon the undersigned and the
heirs, legal representatives, distributees, successors and assigns of the
undersigned.
This Power of Attorney shall be governed by the laws of the State of
New York.
[remainder of page intentionally left blank]
-9-
Witness the due execution of the foregoing Power of Attorney as of the
date written below.
Maximum Number of
Common Stock to be Sold by
Selling Shareholder(s): __________
-----------------------------------------
Very truly yours,
/s/Xxxxxxx Xxxxxxx Xxxx
-----------------------------------------
----------------------------------------
Signature of Selling Shareholder
DATED:__________, 2005
Print Name and Address of Principal
Selling Shareholder(s) and Name and
Title of any Person Signing as Agent
or Fiduciary:
South African Private Equity Trust III
0 Xxxxxxx Xxxx, Xxxxxx
Boulevard, Illero
Signed by: Xxxxxxx Xxxxxxx Xxxx
Authorized Signature
Telephone: 011/000 000-0000
Facsimile: 011/000 000-0000
-10-
Xxxxxx to and accepted by
the Attorneys:
/s/ Dr. Xxxxx X.X. Belamant
---------------------------
Dr. Xxxxx X.X. Belamant
/s/ Xx. Xxxxxx Xxxxxx Xxxxx
------------------------------------
Xx. Xxxxxx Xxxxxx Xxxxx
-11-
SELLING SHAREHOLDERS'
IRREVOCABLE POWER OF ATTORNEY
FOR SALE OF COMMON STOCK,
PAR VALUE $0.001 PER SHARE, OF NET 1 UEPS TECHNOLOGIES, INC.
Dr. Xxxxx X.X. Belamant
Xx. Xxxxxx Xxxxxx Xxxxx
c/o Net 1 UEPS Technologies, Inc.
President Place, 4th Floor
Cnr. Xxx Xxxxx Avenue and Xxxxxx Road
Rosebank, Johannesburg, South Africa
Ladies and Gentlemen:
Reference is made to that certain Letter of Transmittal and Custody
Agreement, dated the date hereof (the "CUSTODY AGREEMENT"), by and among The
Bank of New York, as Custodian (the "CUSTODIAN"), and Dr. Xxxxx X.X. Xxxxxxxx
and Xx. Xxxxxx Xxxxxx Xxxxx, as attorneys-in-fact. Capitalized terms used, but
not defined, herein shall have the meanings ascribed to them in the Custody
Agreement.
Certain of the undersigned, constituting the Public Principal Selling
Shareholders, Net 1 UEPS Technologies, Inc. (the "COMPANY"), and certain other
holders of the Company's common stock (such holders and the Public Principal
Selling Shareholders being hereinafter sometimes collectively referred to as the
"SELLING SHAREHOLDERS"), propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX
XXXXXXX"), X.X. Xxxxxx Securities Inc. ("JPMORGAN"), Xxxxxx X. Xxxxx & Co.
Incorporated, Xxxxxxxxx & Company, Inc. and Xxxxxx Xxxxxx Partners LLC
(collectively, the "UNDERWRITERS"). The Selling Shareholders propose to sell to
the Underwriters pursuant to the Underwriting Agreement certain authorized and
issued common stock, par value $0.001 per share, of the Company (the "COMMON
STOCK") owned by them. It is understood that at this time there is no commitment
on the part of the Underwriters to purchase any Common Stock and no assurance
that the Underwriting Agreement will be entered into by the Company or the
Underwriters.
Certain of the undersigned, constituting the Private Principal Selling
Shareholders, the Company and the Purchasers have entered into that certain
Stock Purchase Agreement, dated as of July 18, 2005. The Selling Shareholders
include the Private Principal Selling Shareholders. Pursuant to the Purchase
Agreement, the Private Principal Selling Shareholders have agreed to sell to the
Purchasers, and the Purchasers have agreed to purchase from the Private
Principal Selling Shareholders, certain shares of the Company's Common Stock
(the
"PRIVATE SHARES"). It is understood that the closing of the transactions
contemplated in the Purchase Agreement are conditioned upon the closing of the
transactions contemplated in the Underwriting Agreement.
The undersigned hereby irrevocably constitutes and appoints Dr. Xxxxx
X.X. Belamant and Xx. Xxxxxx Xxxxxx Xxxxx, each with full power and authority to
act together or alone in any matter hereunder and with full power of
substitution, the true and lawful attorneys-in-fact of the undersigned
(individually an "ATTORNEY" and collectively the "ATTORNEYS"), with full power
and authority in the name of, for and on behalf of, the undersigned with respect
to all matters arising in connection with the exercise of stock options (if
applicable) and the sale of shares of Common Stock by any of the undersigned
including, but not limited to, the power and authority on behalf of any of the
undersigned to take any and all of the following actions:
1. (A) To sell, assign, transfer and deliver to the several
Underwriters pursuant to the Underwriting Agreement up to the number of shares
of Common Stock set forth on the signature page hereof, such Common Stock to be
represented by certificate(s) of Common Stock deposited by the undersigned
Public Principal Selling Shareholders pursuant to the Custody Agreement or by
stock option exercise forms executed by the Attorneys, at a purchase price per
share to be paid by the Underwriters, as determined by negotiation between the
Company, the Attorneys and Xxxxxx Xxxxxxx and JPMorgan, but at the same price
per share at which all other Selling Shareholders sell Common Stock to the
Underwriters, and to complete, execute and deliver a stock power in relation to
the sale of the foregoing number of shares of Common Stock; and (B) to sell,
assign, transfer and deliver to the Purchasers pursuant to the Purchase
Agreement up to the number of shares of Common Stock set forth on the signature
page hereof, such Common Stock to be represented by certificate(s) of Common
Stock deposited by the undersigned Private Principal Selling Shareholders
pursuant to the Custody Agreement, at a purchase price per share to be paid by
the Purchasers, as determined in accordance with the Purchase Agreement, and to
complete, execute and deliver a stock power in relation to the sale of the
foregoing number of shares of Common Stock;
2. To determine, in conjunction with the Company, the number of shares
of Common Stock to be sold by the undersigned to the Underwriters which number
shall be no greater but may be fewer than that set forth on the signature page
hereof (such total number of shares, as is finally determined by the Attorneys
and the Company and set forth opposite the name of the undersigned in Schedule I
to the Underwriting Agreement is hereinafter referred to as the "PUBLIC SHARES"
and, together with the total number of Private Shares, are collectively referred
to as the "SHARES");
3. To execute, deliver and perform the Underwriting Agreement with full
power to make such amendments to the Underwriting Agreement as the
-2-
Attorneys, in their sole discretion, may deem advisable and, together with
Xxxxxx Xxxxxxx and JPMorgan and a committee of the Board of Directors of the
Company, to determine the public offering price and the purchase price per share
of Common Stock to be paid by the Underwriters (subject to paragraph 1 above)
and the other terms of sale; and to perform the Purchase Agreement with full
power to make such amendments to the Purchase Agreement as the Attorneys, in
their sole discretion, may deem advisable;
4. To execute and deliver any stock option exercise forms or any other
documents that may be required in connection with the exercise of a stock option
of the Company held by the undersigned;
5. On behalf of the undersigned, to make the representations and
warranties and enter into the agreements contained in the Underwriting Agreement
(including, without limitation, entering into "lock-up" agreements);
6. (a) To instruct the Custodian and the transfer agent for the Common
Stock as the Attorneys shall determine on all matters pertaining to the delivery
and custody of certificates therefor and (b) to enter into and amend the Custody
Agreement and any related documents in such manner as may be necessary to
consummate the transactions contemplated by the Underwriting Agreement and the
Purchase Agreement on behalf of any of the undersigned or as the Attorneys may
determine to be not materially adverse to any of the undersigned;
7. To incur or authorize the incurrence of any necessary or appropriate
expense in connection with the sale of the Shares and to determine the amount of
any transfer taxes payable in connection with transfer of the Shares to the
Underwriters or the Purchasers;
8. To take any and all steps deemed necessary or desirable by the
Attorneys in connection with the registration of the Shares under the Securities
Act of 1933, as amended (the "ACT"), the Securities Exchange Act of 1934, as
amended, and the securities or "blue sky" laws of various states and
jurisdictions, including, without limitation, the giving, making or filing of
such undertakings, consents to service of process and representations and
agreements and the taking of such other steps as the Attorneys may deem
necessary or desirable;
9. To retain legal counsel to represent the undersigned in connection
with any and all matters referred to herein (which counsel may, but need not be,
counsel for the Company);
10. To make, execute, acknowledge and deliver all such other contracts,
stock powers, orders, receipts, notices, instructions, certificates, letters and
other writings, including, without limitation, communications with the
Securities and Exchange Commission and the National Association of Securities
Dealers, Inc. ("NASD"), and in general to do all things and to take all actions
which the
-3-
Attorneys, in their sole discretion, may consider necessary or desirable in
connection with the sale of the Public Shares to the Underwriters and the public
offering thereof and the sale of Private Shares to the Purchasers, as fully as
could the undersigned if personally present and acting;
11. If necessary, to endorse (in blank or otherwise) on behalf of the
undersigned the certificate(s) representing the Shares and a stock power or
powers attached to such certificate(s); and
12. To sign such other certificates, documents and agreements and take
any and all other actions as the Attorneys may deem necessary or desirable in
connection with the consummation of the transactions contemplated by this Power
of Attorney.
Each Attorney may act alone in exercising the rights and powers
conferred on the Attorneys in this Power of Attorney, and the act of any
Attorney shall be the act of the Attorneys. Each Attorney is hereby empowered to
determine in his sole discretion the time or times when, the purpose for and the
manner in which any power herein conferred upon him shall be exercised, and the
conditions, provisions or covenants of any instrument or document which may be
executed by him pursuant hereto. The undersigned acknowledges that Xxxxx
Xxxxxxxx and Xxxxxx Xxxxx are Chief Executive Officer and Chief Financial
Officer, respectively, of the Company.
The undersigned Public Principal Selling Shareholders acknowledge
receipt of a copy of the Registration Statement on Form S-1 (the "REGISTRATION
STATEMENT") relating to the offering of the Public Shares and the other Common
Stock to be sold by the other Selling Shareholders and, if the over-allotment
option is exercised, by the Company (the "OFFERED SHARES") and a copy of the
preliminary form of the Underwriting Agreement. The undersigned Public Principal
Selling Shareholders have reviewed the Registration Statement and the
preliminary form of the Underwriting Agreement and understand the obligations
and agreements of the undersigned Public Principal Selling Shareholders set
forth in the Underwriting Agreement. ALL REPRESENTATIONS AND WARRANTIES OF THE
SELLING SHAREHOLDERS IN THE UNDERWRITING AGREEMENT WITH RESPECT TO THE
UNDERSIGNED PUBLIC PRINCIPAL SELLING SHAREHOLDERS ARE AS OF THE DATE HEREOF, AND
WILL BE AS OF THE DATE OF THE EXECUTION OF THE UNDERWRITING AGREEMENT AND THE
CLOSING DATE (AS DEFINED IN THE UNDERWRITING AGREEMENT), TRUE AND CORRECT. ALL
SUCH REPRESENTATIONS AND WARRANTIES WILL, AS PROVIDED IN THE UNDERWRITING
AGREEMENT, SURVIVE THE TERMINATION OF THE UNDERWRITING AGREEMENT AND THE
DELIVERY OF AND PAYMENT FOR THE PUBLIC SHARES.
The undersigned Private Principal Selling Shareholders have reviewed
the Purchase Agreement and understand the obligations and agreements of the
undersigned Private Principal Selling Shareholders set forth in the Purchase
Agreement. ALL REPRESENTATIONS AND WARRANTIES OF THE PRIVATE PRINCIPAL
-4-
SELLING SHAREHOLDERS IN THE PURCHASE AGREEMENT ARE AS OF THE DATE HEREOF, AND
WILL BE AS OF THE CLOSING DATE (AS DEFINED IN THE PURCHASE AGREEMENT), TRUE AND
CORRECT. ALL SUCH REPRESENTATIONS AND WARRANTIES WILL, AS PROVIDED IN THE
PURCHASE AGREEMENT, SURVIVE THE TERMINATION OF THE PURCHASE AGREEMENT AND THE
DELIVERY OF AND PAYMENT FOR THE PRIVATE SHARES.
Upon the execution and delivery of the Underwriting Agreement by the
Attorneys on behalf of the Selling Shareholders, the undersigned Public
Principal Selling Shareholders agree to be bound by and to perform each and
every covenant and agreement of the undersigned Public Principal Selling
Shareholders contained therein (including, without limitation, the agreements
contained therein regarding indemnification and contribution). The undersigned
Private Principal Selling Shareholders agree to continue to be bound by and to
perform each and every covenant and agreement of the undersigned Private
Principal Selling Shareholders contained in the Purchase Agreement (including,
without limitation, the agreements contained therein regarding indemnification
and contribution).
The undersigned agree, if so requested, to provide an opinion of
counsel, addressed to DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, U.S. counsel for the
Company, and Xxxxxx Xxxxxx, Inc., South Africa counsel for the Company, which
opinion shall expressly permit reliance thereon by DLA Xxxxx Xxxxxxx Xxxx Xxxx
US LLP and Xxxxxx Xxxxxx, Inc., setting forth such matters as DLA Xxxxx Xxxxxxx
Xxxx Xxxx US LLP and Xxxxxx Xxxxxx, Inc. may reasonably request in rendering
their respective opinions pursuant to the Underwriting Agreement or the Purchase
Agreement, as the case may be, and such other documentation as the Attorneys,
the Company, the Representatives, the Purchasers or any of their respective
counsel may request to effectuate any of the provisions hereof or of the
Underwriting Agreement or the Purchase Agreement, all of the foregoing to be in
form and substance satisfactory in all respects to the party requesting such
documentation.
This Power of Attorney and all authority conferred hereby are granted
and conferred subject to and in consideration of the interests of the Attorneys,
the several Underwriters, the Purchasers, the Company and any other Selling
Shareholders who may become parties to the Underwriting Agreement, and for the
purposes of completing the transactions contemplated by the Underwriting
Agreement, the Purchase Agreement and this Power of Attorney.
This Power of Attorney is an agency coupled with an interest and all
authority conferred hereby SHALL BE IRREVOCABLE, and shall not be terminated by
any act of the undersigned or by operation of law, whether by the death,
disability or incapacity of the undersigned (or either or any of the
undersigned) or by the occurrence of any other event or events (including,
without limitation, the termination of any trust or estate for which the
undersigned is acting as a fiduciary or fiduciaries, the death, disability or
incapacity of one or more trustees, guardians, executors or administrators under
such trust or estate, the dissolution or
-5-
liquidation of any corporation or partnership or bankruptcy with respect to the
undersigned) (any of the foregoing being hereinafter referred to as an "EVENT").
If an Event shall occur after the execution hereof but before completion of the
transactions contemplated by the Underwriting Agreement, the Purchase Agreement
or this Power of Attorney, then certificate(s) representing the Shares will be
delivered to the Underwriters and/or the Purchases by or on behalf of the
undersigned in accordance with the terms and conditions of the Underwriting
Agreement, the Purchase Agreement and the Custody Agreement and any actions
taken hereunder by the Attorneys shall be as valid as if such Event had not
occurred, regardless of whether or not the Custodian, the Attorneys, the
Underwriters, the Purchasers, or any one of them, shall have received notice of
such Event.
Notwithstanding any of the foregoing provisions, if the Underwriting
Agreement shall not have been executed and delivered prior to October 6, 2005,
then, upon the written notice of the undersigned on or after that date to the
Attorneys, this Power of Attorney shall terminate subject, however, to all
lawful action done or performed pursuant hereto prior to the receipt of actual
notice.
The undersigned Public Principal Selling Shareholders hereby represent,
warrant and agree with the Company, DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, Xxxxxx
Xxxxxx, Inc., the Underwriters, Xxxxx Xxxx & Xxxxxxxx, the Custodian, the
Attorneys and the other Selling Shareholders that:
1. The undersigned has, and on the Closing Date will have, valid title
to, or a valid "security entitlement" within the meaning of Section 8-501 of the
New York Uniform Commercial Code in respect of, the Shares free and clear of all
security interests, claims, liens, equities or other encumbrances and the legal
right and power, and all authorization and approval required by law, to enter
into the Underwriting Agreement and this Power of Attorney and to sell, transfer
and deliver the Shares or a security entitlement in respect of the Shares.
2. The Underwriting Agreement has been duly authorized by the
undersigned.
3. This Power of Attorney has been duly authorized and, when executed
and delivered by the person or persons appointed hereunder, shall constitute a
valid and binding instrument of the undersigned, and, pursuant to this Power of
Attorney, the undersigned has, among other things, authorized the Attorneys, or
any one of them, to execute and deliver on the undersigned's behalf the
Underwriting Agreement, the Custody Agreement and any other document that they,
or any one of them, may deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver the Shares pursuant
to the Underwriting Agreement.
-6-
4. Upon payment for the Shares to be sold by the undersigned pursuant
to this Agreement, delivery of such Shares, as directed by the Underwriters, to
Cede & Co. ("CEDE") or such other nominee as may be designated by the Depositary
Trust Company ("DTC"), registration of such Shares in the name of Cede or such
other nominee and the crediting of such Shares on the books of DTC to securities
accounts of the Underwriters (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (within the meaning of Section 8-105 of the New
York Uniform Commercial Code (the "UCC")) to such Shares), (A) DTC shall be a
"protected purchaser" of such Shares within the meaning of Section 8-303 of the
UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid
security entitlement in respect of such Shares and (C) no action based on any
"adverse claim", within the meaning of Section 8-102 of the UCC, to such Shares
may be asserted against the Underwriters with respect to such security
entitlement; for purposes of this representation, the undersigned may assume
that when such payment, delivery and crediting occur, (x) such Shares will have
been registered in the name of Cede or another nominee designated by DTC, in
each case on the Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (y) DTC will be registered as a
"clearing corporation" within the meaning of Section 8-102 of the UCC and (z)
appropriate entries to the accounts of the several Underwriters on the records
of DTC will have been made pursuant to the UCC.
5. The execution, delivery and performance of this Power of Attorney
and the Underwriting Agreement by or on behalf of the undersigned, the
compliance by the undersigned with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (a)
contravene any provision of (i) the certificate of incorporation, by-laws or
similar organizational documents of the undersigned, as applicable, (ii) any
agreement or other instrument binding upon the undersigned, or (iii) any
applicable law, judgment, order or decree of any governmental body, agency or
court having jurisdiction over the undersigned or (b) require any consent,
approval, authorization or order of, or qualification with, any governmental
body or agency (except such as may be required under the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares
and except in the cases of clauses (a)(ii) and (a)(iii) above, as would not have
a material adverse effect on the undersigned) .
6. The undersigned has no reason to believe that the representations
and warranties of the Company contained in Section 1 of the Underwriting
Agreement are not true and correct, is familiar with the Registration Statement
and has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement that has had, or may have, a material
adverse effect on the Company and its subsidiaries, taken as a whole. The
undersigned is not prompted by any information concerning the Company or its
subsidiaries which is not set forth in the Registration Statement to sell its
Shares pursuant to the Underwriting Agreement.
-7-
7. The Registration Statement, when it becomes effective, and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading provided that the
representations and warranties set forth in this paragraph 7 are limited to
statements or omissions made in reliance upon information relating to the
undersigned expressly for use in the Registration Statement or any amendments or
supplements thereto.
8. At any time during the period described in Section 7(c) of the
Underwriting Agreement, if there is any change in the information referred to in
paragraph 7 above, the undersigned will immediately notify you of such change.
9. Certificate(s) and any stock power(s) for up to the maximum number
of Common Stock that may be sold by the undersigned to the Underwriters have
been placed in custody with the Custodian for the purpose of effecting delivery
thereof under the Underwriting Agreement.
10. The undersigned will furnish any and all information which the
Company, the Underwriters or their respective counsel deems necessary or
desirable in connection with the preparation and filing of all amendments,
post-effective amendments and supplements to the Registration Statement, any
preliminary prospectus or the prospectus in the form first used to confirm sales
of Offered Shares (the "PROSPECTUS") or any other filing with any regulatory
body or agency (including the NASD), as well as any and all information which
the Commission, the NASD or any state securities regulatory authority may
request.
The foregoing representations, warranties and agreements, as well as
those contained in the Underwriting Agreement, are made for the benefit of, and
may be relied upon by, the other Selling Shareholders, the Attorneys, the
Company, DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, U.S. counsel for the Company,
Xxxxxx Xxxxxx, Inc., South Africa, counsel for the Company, the Underwriters,
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters and the Custodian and their
respective representatives, agents and counsel. In addition, the foregoing
representations, warranties and agreements shall remain operative and in full
force and effect, and shall survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any of the persons listed in the preceding sentence,
(ii) acceptance of the Shares and payment for them under the Underwriting
Agreement and (iii) termination of this Power of Attorney.
It is understood that the Attorneys assume no responsibility or
liability to any person other than to deal with the certificate(s) for Common
Stock deposited with the Custodian pursuant to the Custody Agreement and the
proceeds from the sale of the Shares in accordance with the provisions hereof.
The Attorneys make no representations with respect to and shall have no
responsibility for the
-8-
Registration Statement or the Prospectus (unless applicable law states
otherwise) nor, except as herein expressly provided, for any aspect of the
offering of Common Stock, and the Attorneys shall not be liable for any error of
judgment or for any act done or omitted or for any mistake of fact or law except
for the Attorneys' own gross negligence, willful misconduct or bad faith. The
undersigned agree to indemnify the Attorneys for and to hold the Attorneys,
jointly and severally, free from and harmless against any and all loss, claim,
damage, liability or expense incurred by or on behalf of the Attorneys, or any
of them, arising out of or in connection with acting as Attorneys under this
Power of Attorney, as well as the cost and expense of defending against any
claim of liability hereunder, and not due to the Attorneys' own negligence,
misconduct or bad faith. The undersigned agree that the Attorneys may consult
with counsel of their choice (which may but need not be counsel for the Company)
and the Attorneys shall have full and complete authorization and protection for
any action taken or suffered by the Attorneys, or any of them hereunder, in good
faith and in accordance with the opinion of such counsel.
It is understood that the Attorneys shall serve entirely without
compensation.
This Power of Attorney shall be binding upon the undersigned and the
heirs, legal representatives, distributees, successors and assigns of the
undersigned.
This Power of Attorney shall be governed by the laws of the State of
New York.
[remainder of page intentionally left blank]
-9-
Witness the due execution of the foregoing Power of Attorney as of the
date written below.
Maximum Number of
Common Stock to be Sold by
Selling Shareholder(s): __________
----------------------------------------------
Very truly yours,
/s/ Xxxxx Xxxxxx
----------------------------------------------
----------------------------------------------
Signature(s) of Selling Shareholder
DATED:__________, 2005
Print Name and Address of Principal
Selling Shareholder(s) and Name and
Title of any Person Signing as Agent
or Fiduciary:
Brait International Limited
Suite 509-510
St. Xxxxx Court
St. Denis Street
Port Louis
Mauritius
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-10-
Xxxxxx to and accepted by
the Attorneys:
/s/ Dr. Xxxxx X.X. Belamant
----------------------------
Dr. Xxxxx X.X. Belamant
/s/ Xx. Xxxxxx Xxxxxx Xxxxx
----------------------------
Xx. Xxxxxx Xxxxxx Xxxxx
-11-
