Exhibit 10.12
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of
the ___ day of June 2001, by and between MediaBin, Inc., a Georgia corporation
(the "Company"), and Venturos Holding AS, a Norwegian corporation (the
"Lender").
PREAMBLE
The Company and the Lender are entering into this Agreement for the
purpose of establishing a four-year term loan. This Agreement establishes the
conditions under which the Lender may convert any outstanding borrowings into an
investment in common stock of the Company and other relevant provisions.
NOW, THEREFORE, in consideration of the premises hereof, the mutual
covenants and conditions set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Loan. On the date hereof the Company is borrowing the principal
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amount of $2,000,000 from the Lender (the "Loan"), which will be evidenced by
the Term Promissory Note in the form attached hereto as Exhibit A (the "Note").
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The Lender is willing to make the Loan to the Company on the terms and
conditions described herein. The Company and the Lender agree that the payment
and performance of all obligations relating to the Loan shall not be secured by
any property of the Company. The Company may prepay the Loan, in whole or in
part, at any time without penalty or premium; provided, however, that the
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Company shall give the Lender five days notice of any payment of outstanding
principal under the Note other than a scheduled principal payment prescribed by
the Note (each, a "Payment Notice").
2. Conversion and Acceleration Rights. The Company's successful
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completion of either a private placement or a public offering of its common
stock, $.01 par value per share (the "Common Stock") in either the Norwegian or
United States stock markets in which gross proceeds of at least $2,000,000 are
raised is defined as the Secondary Offering. At any time during the term of the
Note, Lender may cause all or any portion of the entire outstanding principal
balance of the Note to be converted into a number of shares of the Common Stock
equal to the then-outstanding principal of the Note divided by 75% of the
offering price per share in the Secondary Offering. Upon the commencement of an
action by the Company to obtain shareholder approval of an offer from a person
or entity unaffiliated with the Lender and unaffiliated with Xxxxxxx Capital AS
that would result in a Change of Control (as defined below), Lender may (i)
cause all or any portion of the entire outstanding principal balance of the Note
to be converted into a number of shares of the Common Stock equal to the
then-outstanding principal of the Note divided by 75% of the offering price per
share as proposed in the transaction constituting a Change of Control and/or
(ii) cause the acceleration of the Note so that all of the remaining outstanding
and unconverted principal is due within ten (10) days of the closing of the
transaction constituting a Change of Control. Lender shall have the option of
either receiving cash for any accrued and unpaid interest on the Note or
converting such interest balance into a number of shares of the Common Stock as
provided herein. The shares of Common Stock received by the Lender pursuant to
this Section 2 shall be registered on the Oslo Stock Exchange. Notwithstanding
the foregoing, no fractional shares of the Common Stock shall be issued upon the
exercise of the conversions provided by this Section 2, and the Company shall
pay the Lender cash equal to the fair market value of such fractional shares in
lieu of their issuance. For purposes of this Agreement, a "Change of Control"
shall mean a transaction in which (i) any person or group of persons that was
not previously a majority shareholder of the Company becomes the beneficial
owner, directly or indirectly, of securities of the Company representing a
majority of the combined voting power of the Company's then-outstanding
securities or (ii) the Company sells, transfers, leases, exchanges or disposes
of at least eighty-five percent (85%) of its assets.
3. Adjustments for Reclassifications. If prior to the conversion set
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forth in Section 2, the outstanding shares of the Common Stock are changed into
or exchanged for a different kind of shares or other securities of the Company
(hereinafter, a "Capitalization Event"), then the kind of shares or other
securities issuable upon the conversion set forth in Section 2 shall be adjusted
so that the kind of shares or other securities to be received under such
conversion after such Capitalization Event are the same as that which would have
been held following the Capitalization Event had a similar conversion taken
place immediately prior to the Capitalization Event.
4. Representations, Warranties and Covenants.
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(a) By the Company. The Company is a corporation duly
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organized and existing under the laws of the State of Georgia and has the
corporate power and authority to carry on its business as and where now
conducted. The Company has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action of the Company. The authorized capital stock of the Company
consists of 40,000,000 shares of the Common Stock, of which 17,529,607 shares
are issued and outstanding. All of the issued and outstanding shares of the
Common Stock are duly and validly issued and are fully paid and non-assessable.
(b) By the Lender. The Lender is a corporation duly organized
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and existing under the laws of the country of Norway and has the corporate and
legal power and authority necessary to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action of the Lender. The Lender has not
authorized any person to act as broker, finder or in any other similar capacity
in connection with the transactions contemplated by this Agreement. The Lender
acknowledges that the shares of the Common Stock issuable pursuant to the
conversion procedure set forth in Section 2 hereof have not been registered
under any state (or other) securities laws or under the Securities Act of 1933,
as amended (the "Federal Act"), in reliance, in the case of the Federal Act, on
exemptions contained in Regulation S promulgated thereunder, and agrees that it
will not (i) transfer any of such shares, or any interest therein, except
pursuant to an effective registration statement under the applicable state and
other securities laws and the Federal Act or in a transaction which is exempt
under such applicable state and other securities laws and the Federal Act, or
(ii) make any transfer which will cause the issuance of any of such shares by
the Company to be unlawful or violative of any statute or regulation. The Lender
further acknowledges that any stock certificates representing the shares of
Common Stock issuable pursuant to the conversion procedure set forth in Section
2 shall bear a restrictive legend in compliance with the requirements of
Regulation S. The Lender warrants and represents that its execution of this
Agreement has taken place outside the United States, that it is not a U.S.
Person (as defined in Regulation S) and that it is not acquiring any securities
hereunder for the account or benefit of a U.S. Person. The term U.S. Person, as
defined in Regulation S, means: (i) any natural person resident in the United
States; (ii) any partnership or corporation organized or incorporated under the
laws of the United States, its territories or possessions or any state or the
District of Columbia; (iii) any estate of which any executor or administrator is
a U.S. Person; (iv) any trust of which any trustee is a U. S. Person; (v) any
agency or branch of a foreign entity located in the United States; (vi) any
non-discretionary account or similar account (other than an estate or trust)
held by a "dealer" (as defined in the Federal Act) or other fiduciary for the
benefit or account of a U.S. Person; (vii) any discretionary account or similar
account (other than an estate or trust) held by a "dealer" (as defined in the
Federal Act) or other professional fiduciary organized, incorporated, or (if an
individual) resident in the United States; or (viii) any partnership or
corporation organized or incorporated under the laws of any foreign jurisdiction
by a U. S. Person principally for the purpose of investing in securities not
registered under the Federal Act unless it is organized or incorporated, and
owned, by Accredited Investors (as defined in Rule 501(a) under the Federal Act)
who are not natural persons, estates or trusts. In addition to the restrictions
on transfer set forth herein, the Lender also agrees that it will not transfer
this Agreement or the Note into the United States or to a U. S. Person (as
defined in Regulation S) for a period of one year after the date hereof. The
Lender warrants and represents that any shares of the Common Stock that it
acquires will be acquired solely for its own account, to hold for investment,
with no present intention of dividing its participation with others or reselling
or otherwise participating, directly or indirectly, in a distribution of such
shares.
5. Default; Remedies. A "Default" shall exist if any of the following
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occurs and is not remedied (i) in the case of events described in clause (a)
below, within 15 days after notice from the Lender to the Company thereof, and
(ii) in the case of events described in clauses (b) through (h) below or
elsewhere in this Agreement, within 30 days after notice from the Lender to the
Company thereof: (a) failure of the Company punctually to make any payment of
any amount payable under the Note, whether at maturity, or at a date fixed for
any prepayment or partial prepayment, or by acceleration, or otherwise; (b) any
statement, representation, or warranty of the Company made in this Agreement
shall be false or misleading in any material respect as of the date made; (c)
failure of the Company punctually and fully to comply with any of its covenants
in this Agreement; (d) if the Company becomes insolvent as defined in the
Georgia Uniform Commercial Code or makes an assignment for the benefit of
creditors; or if any action is brought by the Company seeking dissolution of the
Company or liquidation of its assets or seeking the appointment of a trustee,
interim trustee, receiver, or other custodian for any of its property; or if the
Company commences a voluntary case under the Federal Bankruptcy Code; or if any
reorganization or arrangement proceeding is instituted by the Company for the
settlement, readjustment, composition or extension of any of its debts upon any
terms; or if any action or petition is otherwise brought by the Company seeking
similar relief or alleging that it is insolvent or unable to pay its debts as
they mature; (e) the Company is in default on indebtedness to another person,
the amount of such indebtedness exceeds $250,000 and the acceleration of the
maturity of such indebtedness would have a material adverse effect upon the
Company; or (f) a sale of all or substantially all of the assets of the Company
unless waived in writing by the Lender. Upon the occurrence of a Default, the
Lender shall be entitled to declare any of the amounts owed by the Company under
the Note due and payable, whereupon they immediately will become due and payable
without presentment, demand, notice or protest of any kind (all of which are
expressly waived by the Company).
6. Miscellaneous. All notices or other communications which are
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required or permitted hereunder shall be in writing and sufficient if delivered
(i) personally, (ii) by registered or certified mail, postage prepaid or (iii)
by a recognized courier service to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered or transmitted:
The Company: MediaBin, Inc.
Seven Xxxxxxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, President
With copy
to counsel: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
The Lender: Venturos Holdings AS
X.X. Xxx 000
0000 Xxxxxxx, Xxxxxx
Each party shall bear the expenses incurred by it or on its behalf in connection
with the transactions contemplated by this Agreement; provided, however, that
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the Company shall be liable for any reasonable attorneys' fees actually incurred
by the Lender in enforcing this Agreement or the Note upon a default by the
Company of its obligations thereunder. This Agreement, together with the Note,
contain the entire agreement among the parties with respect to the transactions
contemplated hereby, and supersede all prior arrangements or understandings with
respect thereto, written or oral. This Agreement shall inure to the benefit of
and be binding upon the Company's and the Lender's successors and any permitted
assignee of this Agreement or the Note. This Agreement and the Note shall not be
assigned by the Lender without the prior written consent of the Company;
provided, however, that subject to compliance with the requirements of
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Regulation S, the Lender may sell participations in the Note to not more than
four other persons (including indirect participants), provided that no such
participation shall relieve the Lender of its obligations under this Agreement,
including without limitation its obligations under Section 1 hereof. In
addition, that subject to the requirements of Regulation S, the Lender may
assign this Agreement and the Note to an Affiliate (defined below) of Venturos
Holding AS without the prior written consent of the Company subject to the
condition that Venturos Holding AS remain liable for the performance of all of
the obligations of the Lender and its assigns thereunder. For purposes of the
foregoing sentence, "Affiliate" shall have the meaning given such term in Rule
144(a)(1) promulgated under the Federal Act. This Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia except to the
extent United States federal law shall be applicable. This Agreement may be
executed in one or more counterparts, each of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed, sealed and delivered by their duly authorized officers as of the date
first written above.
MEDIABIN, INC. VENTUROS HOLDING AS
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxxx
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Xxxx X. Xxxxx
President and Chief Executive Officer Print Name:
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Attest: /s/ Xxxxxx Xxxxxxxx Print Title:
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Xxxxxx X. Xxxxxxxx
Secretary
Exhibit A
TERM PROMISSORY NOTE
$2,000,000 June ___, 2001
FOR VALUE RECEIVED, the undersigned, MediaBin, Inc., a Georgia
corporation (the "Borrower"), promises to pay to Venturos Holding AS, a
Norwegian corporation (the "Lender"), at X.X. Xxx 000, 0000 Xxxxxxx, Xxxxxx (or
at such other place as the Lender may designate in writing to the Borrower), in
lawful money of the United States of America, the principal sum of two million
dollars ($2,000,000), plus interest as hereinafter provided.
This Term Promissory Note (the "Note") is the Note made and given as
described in that certain Loan Agreement dated as of June ___, 2001, between the
Borrower and the Lender (the "Loan Agreement"). The Borrower shall be entitled
to borrow funds hereunder pursuant to the terms and conditions of the Loan
Agreement. In the event of any inconsistency between this Note and the Loan
Agreement, this Note shall control. All capitalized terms used herein shall have
the meanings ascribed to such terms in the Loan Agreement, except to the extent
such capitalized terms are otherwise defined or limited herein. This Note may be
assigned only as provided in the Loan Agreement.
The Borrower promises to pay interest on the unpaid principal amount
outstanding hereunder (the "Loan"), at a simple interest rate per annum equal to
the Prime Rate Basis. "Prime Rate Basis" shall mean, on any day, a simple
interest rate per annum equal to the Prime Rate (as defined herein) plus 100
basis points (1.0%). "Prime Rate" shall mean, on any day, the rate of interest
published as the "Prime Rate" as of the last business day of the full calendar
month preceding such day by Bank of America, N.A. (Charlotte, North Carolina),
or any successor institution. The Prime Rate in effect as of the close of
business of each day shall be the applicable Prime Rate for the day and each
succeeding non-business day in determining the applicable Prime Rate Basis.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
Interest under this Note shall be due and payable quarterly in arrears
on the last day of each calendar quarter, commencing June 30, 2001, and
continuing to be due on the last day of each calendar quarter thereafter until
this Note is paid in full. Interest shall also be due and payable when this Note
shall become due (whether at maturity, by reason of acceleration or otherwise).
After default, interest shall also be due and payable upon demand from time to
time by the Lender as provided below.
Unless previously converted to common stock or made subject to
acceleration in accordance with the provisions of the Loan Agreement, commencing
June 30, 2002, and continuing on each March 31, June 30, September 30, December
31 thereafter, the indebtedness evidenced by this Note shall be due and payable
in 11 consecutive quarterly installments of principal, each in the amount of
1/12th of the principal balance outstanding hereunder on June 30, 2002, plus all
accrued and unpaid interest as hereinabove provided. The entire outstanding
balance of the indebtedness evidenced by this Note, together with all accrued
and unpaid interest, shall be due and payable in a 12th and final installment on
March 31, 2005. The Lender shall be obligated to convert the entire outstanding
principal balance hereunder into common stock of the Borrower upon the events
and in the manner specified in the Loan Agreement.
Overdue principal shall bear interest for each day from the date it
became so due until paid in full, payable on demand, at a rate per annum
(computed on the basis of a 360-day year for the actual number of days elapsed)
equal to two percent (2%) per annum in excess of the interest rate otherwise
payable hereunder.
In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently paid by the Borrower or inadvertently received
by the Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Lender, in writing, that the Borrower
elects to have such excess sum returned to it forthwith. It is the express
intent hereof that
the Borrower not pay and the Lender not receive, directly or indirectly, in any
manner whatsoever, interest in excess of that which may be lawfully paid by the
Borrower under applicable law.
The Borrower hereby waives presentment for payment, demand, notice of
non-payment or dishonor, protest and notice of protest, or any other notice of
any kind with respect thereto.
This Note is entitled to the benefits of the Loan Agreement, which
contains provisions with respect to the prepayment of the Loan. Prepayment of
the Loan may be made by the Borrower as provided in the Loan Agreement.
Time is of the essence of this Note.
This Note shall be deemed to be made pursuant to the laws of the State
of Georgia.
IN WITNESS WHEREOF, the duly authorized officers of the Borrower have
executed, sealed, and delivered this Note, as of the day and year first above
written.
MEDIABIN, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
President and Chief Executive Officer
Attest: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Secretary
