SUBSCRIPTION AGREEMENT Between NET1 UEPS TECHNOLOGIES, INC. and NEWSHELF 713 (PROPRIETARY) LIMITED
Exhibit 2.2
Between
NET1 UEPS TECHNOLOGIES, INC.
and
NEWSHELF 713 (PROPRIETARY) LIMITED
______________________________________________
CONTENTS
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| 1. | INTERPRETATION |
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| 1.1 | The headnotes to the clauses
of this agreement are inserted for reference purposes only and shall in
no way govern or affect the interpretation hereof. |
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| 1.2 | Unless inconsistent with
the context, the expressions set forth below shall bear the following
meanings: |
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“acquisition agreement” |
the agreement between the company and Aplitec whereby
the company will acquire all the assets and liabilities of the Aplitec
Group, excluding R 300 million in cash and additional cash sufficient
to result in the distribution of an extra 25 cents (after payment of any
STC thereon) per Aplitec share to Aplitec shareholders who elect the cash
option and certain dormant subsidiaries; |
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“Aplitec” |
Net1 Applied Technology Holdings Limited, Registration
Number 1997/007207/06, a public company incorporated in the RSA; |
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“Aplitec Group” |
Aplitec and all its subsidiaries; |
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“business day” |
any day other than a Saturday, Sunday or official
public holiday in the RSA; |
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| “company” |
Newshelf 713 (Proprietary) Limited,Registration Number
2002/031446/07, to be renamed “Net1 Applied Technologies South Africa
(Proprietary) Limited” or a similar name, a private company duly
incorporated according to the company |
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laws of South Africa; |
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“condition” |
the condition precedent in clause 3.1; |
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“issue date” |
The later of 16 February 2004 and the first business
day after the date that the condition is fulfilled; |
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“issue price” |
the price at which the company shall allot and issue
the shares to the subscriber in terms of this agreement, which amount
shall be, per share 33,668 cents, being the par value thereof of 0,1 cent
plus a premium of 33,568 cents; |
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“loan account” |
a credit A class loan account in the company in the
sum of 101,004 cents per share, having the rights set forth in Schedule
1; |
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“New Aplitec Participation Trust” |
the New Aplitec Participation Trust, a bewind trust
established in South Africa |
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“parties” |
the company and the subscriber; |
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“RSA” |
the Republic of South Africa; |
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“shares” |
A class ordinary shares in the company, having a
par value of 0,1 cents per share, having the rights of ordinary shares;
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“signature date” |
the date of last signature of this agreement |
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“subscriber” |
Net1 UEPS Technologies, Inc., IRS Employer Number
00-0000000, a company incorporated in Florida in the United States of
America. |
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| 1.3 | If any provision in a definition
is a substantive provision conferring rights or imposing obligations on
any party, notwithstanding that it is only in the definition clause, effect
shall be given to it as if it were a substantive provision of this agreement. |
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| 1.4 | Any reference to an enactment
is to that enactment as at the signature date. 1.5 Unless inconsistent
with the context, an expression which denotes: |
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| 1.5.1 | any gender includes the
other genders; |
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| 1.5.2 | a natural person includes
an artificial person and vice versa; |
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| 1.5.3 | the singular includes the
plural and vice versa. |
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| 1.6 | Where any term is defined
within the context of any particular clause in this agreement, the term
so defined, unless it is clear from the clause in question that the term
so defined has limited application to the relevant clause, shall bear
the meaning ascribed to it for all purposes in terms of this agreement,
notwithstanding that that term has not been defined in this interpretation
clause. |
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| 1.7 | The rule of construction
that the contract shall be interpreted against the party responsible for
the drafting or preparation of this agreement, shall not apply. |
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| 1.8 | The schedule to this agreement
forms an integral part hereof and words and expressions defined in this
agreement shall bear, unless the context otherwise requires, the same
meaning in such schedule. |
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| 2. | INTRODUCTION | |||
| 2.1 | In terms of the acquisition
agreement, the company will acquire all the assets and liabilities of
the Aplitec Group, excluding R 300 million in cash plus an additional
25 cents per Aplitec share for those Aplitec shareholders who elect the
cash option and |
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certain dormant subsidiaries.
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| 2.2 | The subscriber shall subscribe
for the shares and shall advance the loan account to the company to enable
it to meet its obligations under the acquisition agreement. |
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| 3. | CONDITION PRECEDENT | |||
| 3.1 | This entire agreement (save
in respect of clauses 1, this 3, 6, 7, 8 and 9, which shall be of immediate
force and effect) shall be subject to the condition that, by not later
than 31 May 2004, or such later date as the parties may agree in writing,
the acquisition agreement shall become unconditional. |
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| 3.2 | In the event that the condition
shall not have been fulfilled by the date specified in clause 3.1, this
agreement (save in respect of clauses 1, this 3, 6, 7, 8 and 9, which
shall remain of full force and effect) shall be of no force or effect
and no party shall have any claim against any other party for anything
done hereunder and/or arising herefrom. |
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| 4. | ALLOTMENT AND ISSUE OF SHARES | |||
| 4.1 | On the issue date: |
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| 4.1.1 | The subscriber shall: |
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| 4.1.1.1 | subscribe for the shares and pay the
issue price; and |
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| 4.1.1.2 | advance the loan account to the company,
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in cash, free of exchange,
deduction or set-off, by electronic transfer to the company’s bank
account; |
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| 4.1.2 | The company shall: |
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| 4.1.2.1 | allot and issue the shares to the subscriber;
and |
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| 4.1.2.2 | credit the subscriber with the loan
account in its books. |
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| 4.2 | The company will deliver
the share certificates in respect of the shares described in |
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clause 4.1 to the subscriber
simultaneously with the allotment and issue of the shares. |
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| 5. | WARRANTIES AND UNDERTAKINGS |
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| 5.1 | The company warrants that,
on the issue date: |
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| 5.1.1 | the company shall have full power, capacity and authority to issue the shares; | ||
| 5.1.2 | the directors of the company shall have the necessary authority and will have taken all steps necessary to allot and to issue the shares to the subscribers; | ||
| 5.1.3 | there shall be no class of shares in the authorised and/or issued share capital of the company which ranks in priority to the shares; and | ||
| 5.1.4 | no third party has the right to purchase, acquire and/or subscribe for any shares in the company, other than as provided for in terms of this agreement and the acquisition agreement; | ||
| 5.1.5 | the company shall have no assets or liabilities, save pursuant to the acquisition agreement; | ||
| 5.1.6 | the company shall have no contracts, save pursuant to the acquisition agreement; | ||
| 5.1.7 | the company shall have no employees, save pursuant to the acquisition agreement; | ||
| 5.1.8 | the company shall not have conducted any prior business. | ||
| 5.2 | Save in respect of the warranties
set out in clause 5.1, the company makes no representations and/or gives
no warranties in respect of and/or concerning the shares, which are allotted
and issued voetstoots and as they stand. |
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| 6. | BREACH Should any party (“the defaulting party”) commit a breach of any of the provisions hereof, then any of the other parties (“the aggrieved party”) shall, if it wishes to enforce its rights |
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hereunder,
be obliged to give the defaulting party 14 days written notice to remedy
the breach. If the defaulting party fails to comply with such notice,
the aggrieved party shall be entitled to cancel this agreement against
the defaulting party or to claim immediate payment and/or performance
by the defaulting party of all of the defaulting party's obligations whether
or not the due date for payment and/or performance shall have arrived,
in either event without prejudice to the aggrieved party's rights to claim
damages; provided that there shall be no right of cancellation if the
condition has been fulfilled. The foregoing is without prejudice to such
other rights as the aggrieved party may have at law. |
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| 7. | DOMICILIUM | ||
| 7.1 | The parties hereto choose domicilia citandi et executandi for all purposes of and in connection with this agreement as follows: | ||
| The company: | 0 Xxxxxxx Xxxx | ||
| Xxxxxx Xxxxxxxxx | |||
| Xxxxxx | |||
| Xxxxxxx | |||
| Xxxxxxx | |||
| Attention: Xxxxxx Xxxx | |||
| Fax: (0)00-000 0000 | |||
| With a copy to | 0xx Xxxxx, Xxxxxxxxx Xxxxx | ||
| 000 Xxx Xxxxx Xxxxxx | |||
| Xxxxxxxx, Xxxxxxxxxxxx | |||
| Fax: (000) 000 0000 | |||
| Attention Xxxxx Xxxxxxxx | |||
| The subscriber: | Xxxxx 000-000 | ||
| Xxxx Xxxxxxxx Xxxxxx | |||
| Xxxxxxxxx | |||
| Xxxxxxx Xxxxxxxx | |||
| Xxxxxx | |||
| 7.2 | Either party shall be entitled
to change its domicilium from time to time, provided that any new domicilium
selected by it shall be an address other than a box number, and any such
change shall only be effective upon receipt of notice in writing by the
other parties of such change. |
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| 7.3 | All notices, demands, communications
or payments intended for any party shall be made or given at such party's
domicilium for the time being. |
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| 7.4 | A notice sent by one party
to another party shall be deemed to be received: |
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| 7.4.1 | on the same day, if delivered by hand; |
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| 7.4.2 | on the same day, if transmitted electronically with
receipt received confirming completion of transmission; |
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| 7.4.3 | on the same day of transmission if sent by telefax
with receipt received confirming completion of transmission; |
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| 7.4.4 | on the seventh day after posting, if sent by prepaid
registered mail. |
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| 7.5 | Notwithstanding anything
to the contrary herein contained a written notice or communication actually
received by a party shall be an adequate written notice or communication
to it notwithstanding that it was not sent to or delivered at its chosen
domicilium citandi et executandi. |
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| 8. | COSTS | ||
| 8.1 | The company shall pay the
costs of and incidental to the negotiation, preparation and execution
of this agreement. |
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| 8.2 | The company shall pay the
stamp duty payable on the issue of the shares. |
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| 9. | GENERAL | ||
| 9.1 | This document constitutes
the sole record of the agreement between the parties in regard to the
subject matter thereof. |
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| 9.2 | Neither party shall be bound
by any express or implied term, representation, warranty, promise or the
like, not recorded herein. |
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| 9.3 | No addition to, variation
or consensual cancellation of this agreement shall be of any force or
effect unless in writing and signed by or on behalf of all the parties.
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| 9.4 | No indulgence which either party (“the grantor”)
may grant to the other (“the grantee shall constitute a waiver of
any of the rights of the grantor, who shall not thereby be precluded from
exercising any rights against the grantee which might have arisen in the
past or which might arise in the future. |
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| 9.5 | The parties undertake at all times to do all such
things, to perform all such acts and to take all such steps and to procure
the doing of all such things, the performance of all such actions and
the taking of all such steps as may be open to them and necessary for
or incidental to the putting into effect or maintenance of the terms,
conditions and import of this agreement. |
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| 9.6 | Neither party shall be entitled to cede, delegate
or otherwise transfer all or any of its rights, interest or obligations
under and in terms of this agreement except with the prior written consent
of the other party. |
Signed at Johannesburg on this the 31st day of October, 2003
/s/ Xxxxx Xxxxxxxx
For: NET1 UEPS TECHNOLOGIES, INC.
(who warrants that he is duly authorised hereto)
Signed at Johannesburg on this the 31st day of October, 2003
/s/ Xxxx Xxxxx
For: NEWSHELF 713 (PROPRIETARY) LIMITED
(who warrants that he is duly authorised hereto)
SCHEDULE 1
THE LOAN ACCOUNT
The loan account shall:
| 1. | be repayable as and when directed by
the board of directors of the company in its sole and absolute discretion;
provided that no capital under the loan shall be repayable until at least
30 days have lapsed from the date upon which the loan is credited to the
subscriber; and provided further that the loan account may only be repaid
with the prior written consent of the Exchange Control Department of the
South African Reserve Bank; |
| 2. | bear interest at the rate of interest
determined by the board of directors of the company annually in advance
in its sole and absolute discretion; provided that the interest rate shall
not exceed the prime rate. The interest so determined shall be paid as
and when determined by the board; |
| 3. | be repaid in full if the company is
wound up or placed under judicial management, whether provisionally or
finally; |
| 4. | be repaid pro rata to the B class loan
accounts advanced by the New Aplitec Participation Trust to the company; |
| 5. | rank pari passu in all respects
with the B class loan accounts advanced by the New Aplitec Participation
Trust to the company; |
| 6. | be subordinated in favour of all creditors
of the company (other than the New Aplitec Participation Trust as the
holder of the B class loan accounts) if so decided by the board of directors
of the company; |
| 7. | not be assigned, ceded, transferred
or encumbered by the subscriber in any way; |
| 8. | be denominated in South African Rands. |
