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EXHIBIT 2.2
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made effective as of the 30th
day of April, 1998 (the "EFFECTIVE DATE"), by and between First Virtual Holdings
Incorporated, a Delaware corporation (the "COMPANY") , and SOFTBANK Holdings
Inc., a Delaware corporation ("LENDER").
RECITALS
WHEREAS, on the date hereof, the Company and Lender are entering into a
Purchase Agreement (the "Purchase Agreement"), pursuant to which the Company
intends to sell and Lender intends to acquire 10 million shares of the Company's
Common Stock, par value $.001 per share (the "Share Acquisition").
WHEREAS, the Company and Lender wish to enter into this Agreement to
fund the Company's operations until the closing of the Share Acquisition, which
is currently expected to occur on or around June 24, 1998.
IN WITNESS WHEREOF, the parties agree as follows:
1. THE LOAN. Subject to the terms and conditions of this Agreement,
Lender agrees to loan to the Company, and the Company agrees to borrow from
Lender, funds in an aggregated principal amount of up to One Million Five
Hundred Thousand Dollars ($1,500,000) (the "LOAN"), in installments of not less
than Two Hundred Thousand Dollars ($200,000) per advance. Subject to Section 4
hereof, advances shall be made in the amounts specified by the Company (each a
"LOAN DISBURSEMENT") within five (5) days following the date of receipt of
written notice from the Company (the "NOTICE DATE") as to such Loan
Disbursement, provided that the maximum amount advanced by Lender shall not
exceed the total amount of the Loan. The first loan disbursement, with a
principal amount of $500,000, shall be made on the date hereof. Interest shall
accrue on each Loan Disbursement from the date of advance (each a "DISBURSEMENT
DATE") by Lender. Lender will transmit each Loan Disbursement to the Company via
wire transfer at the following account: Account No.: 000-00-0000, Bank Name:
City National Bank, Beverly Hills, CA; ABA No. 0000-00-000; or pursuant to such
other instructions as may have been provided in writing by the Company, and the
Company will accept each Loan Disbursement pursuant to the terms of this
Agreement.
2. THE NOTES. Each of the Loan Disbursements will be evidenced by, and
repaid with interest in accordance with, an interest-bearing promissory note in
the form of Exhibit A (the "NOTES"), duly completed and dated as of the date of
such Loan Disbursement and delivered to Lender at or prior to the time of such
Loan Disbursement.
3. INTEREST AND PAYMENTS. Interest shall accrue and be paid to Lender on
the outstanding and unpaid principal amount of the Loan at the rate of 8.0% per
annum, computed on the basis of the actual number of days elapsed and a year of
360 days consisting of twelve 30 day months. Payments of principal and interest
will be made to Lender in the manner specified in the
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Note. The principal amount of the Loan may be prepaid in whole or in part at any
time and from time to time without premium or penalty.
4. SPENDING PLAN. The obligation of Lender to make any Loan Disbursement
to the Company (other than the first loan disbursement made on the date hereof)
will be subject to Lender's receipt, on or before the Notice Date, of a
statement prepared by the Company specifying in reasonable detail the Company's
proposed application of the proceeds of such Loan Disbursement (the "Spending
Plan"), which Spending Plan shall be satisfactory to the Lender. Lender shall
not unreasonably withhold its consent to any Spending Plan, provided that such
Spending Plan shall in the good faith judgment of the Company's Board of
Directors be consistent with maintaining and preserving the Company's
operations. The proceeds of any Loan Disbursement shall be used only for the
purposes set forth in the Spending Plan delivered with respect to such Loan
Disbursement.
5. FAILURE TO PROVIDE LOAN DISBURSEMENTS. In the event that Lender shall
fail to provide Loan Disbursements pursuant to this Agreement upon request by
the Company as required by Section 4 hereof, then the Company shall have right
to terminate this Agreement and the Purchase Agreement, and all rights
obligations of the parties under this Agreement and the Purchase Agreement shall
terminate and be without further effect. The parties agree that Section 5 shall
supersede any provision of the Purchase Agreement to the contrary.
6. TERMINATION OF DISBURSEMENT OBLIGATION. Lender shall not be required
to make any further Loan Disbursements under this Agreement in the event that
and following such time as the Purchase Agreement is terminated in accordance
with Section 8 thereof.
7. EVENTS OF DEFAULT. The occurrence of any of the following events will
be an "Event of Default" hereunder:
(a) Voluntary Bankruptcy or Insolvency Proceedings. The Company
shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its or any of its
creditors, (iii) be dissolved or liquidated in full or in substantial part, (iv)
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it, or (v) take any action for the purpose of effecting any of the
foregoing; or
(b) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings
for the appointment of a receiver, trustee, liquidator or custodian of the
Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to the Company or the debts thereof under any
bankruptcy, insolvency or other similar law now or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not be
dismissed or discharged within sixty (60) days of commencement.
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(c) Cross Default. The Company fails to pay or discharge any
obligation in excess of $200,000 when due, whether by scheduled maturity,
required prepayment, acceleration, or otherwise) (other than any debts to Xxxxxx
X. Xxxxxx, Xxx X. Xxxxx, Next Century Communications Corp. or their respective
affiliates).
(d) Judgment. Rendering of a final judgment or judgments (not
subject to appeal) against the Company or any of its subsidiaries in an
aggregate amount in excess of $500,000 which remains unstayed, in effect and
unpaid for a period of 60 consecutive days thereafter.
(e) Conversion Default. With respect to outstanding obligations
under any Note, any breach by the Company with respect to its obligations to
issue shares of Common Stock upon conversion of such Note pursuant to Section 3
thereof.
8. RIGHTS OF THE LENDER UPON DEFAULT. Upon the occurrence or existence
of an Event of Default specified in Section 7(a) or (b), immediately and without
notice, all outstanding obligations payable by the Company hereunder shall
automatically become immediately due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived. Upon the occurrence or existence of an Event of Default as specified in
Sections 7(c), (d) or (e), the Lender may declare all outstanding obligations
under all outstanding Notes immediately due and payable by written notice to the
Company and upon any such declaration such obligations shall become immediately
due and payable.
9. SUCCESSORS AND ASSIGNS. The Company and the Holder shall be binding
upon and benefit the successors, assigns, heirs, administrators and transferees
of the parties.
10. WAIVER AND AMENDMENT. Any provision of this Agreement may be
amended, waived or modified upon the written consent of the Company and the
Lender.
11. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder may be assigned, by operation of law or otherwise, in
whole or in part, by the Company or the Holder without the prior written consent
of the other party except (i) in the case of the Company, in connection with an
assignment in whole to a successor corporation to the Company, provided that
such successor corporation acquires, by purchase of assets, merger or otherwise,
all or substantially all of the Company's property and assets, and (ii) in the
case of Lender, in connection with any transfer to a subsidiary or parent
company of the Lender or partnership of which the Lender is the sole general
partner, provided in any such case that the transferee provides such investment
representations as the Company may reasonably request to ensure securities law
compliance.
12. ADDRESSES FOR NOTICES, ETC. Any notices and other communications
required or permitted under this Agreement shall be effective if in writing and
delivered personally or sent by telecopier, Federal Express or registered or
certified mail, postage prepaid, addressed as follows:
If to Lender, to: SOFTBANK Holdings Inc.
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
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Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Vice Chairman
with a copy to: Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the Company, to: First Virtual Holdings Incorporated
00000 Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxx X. Xxxxx
Chairman of the Board
and Chief Executive Officer
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxx X. Xxxxxxxx, Esq.
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date delivered, if delivered personally,
(b) two business days after being sent, if sent by Federal Express or other
commercial overnight delivery service, (c) one business day after being sent, if
sent by telecopier with confirmation of good transmission and receipt, and (d)
three business days after being sent, if sent by registered or certified mail.
Each of the parties hereto shall be entitled to specify another address by
giving notice as aforesaid to each of the other parties hereto.
13. SEVERABILITY. The holding of any provision of this Agreement to be
invalid or unenforceable by a court of competent jurisdiction shall not affect
any other provisions and the other provisions of this Note shall remain in full
force and effect.
14. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
FIRST VIRTUAL HOLDINGS INCORPORATED,
a Delaware corporation
By: /s/ XXX X. XXXXX
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Title: Chairman & CEO
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SOFTBANK HOLDINGS INC.,
a Delaware corporation
By: /s/ XXXXXX XXXXXX
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Title: Vice Chairman
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