Exhibit 10.1
LOAN AGREEMENT
This LOAN AGREEMENT ("Loan Agreement") is entered into as of the 30th
day of December, 2002 (the "Effective Date"), by Vie Financial Group, Inc., a
Delaware corporation ("Vie"), SOFTBANK Capital Partners LP, SOFTBANK Capital
Advisors Fund LP and SOFTBANK Capital LP, each a Delaware limited partnership
(each, an "Investor" and, collectively, "Softbank"), and Xxxxxx Xxxxxx Jurvetson
ePlanet Ventures L.P., a Cayman Islands limited partnership, Xxxxxx Xxxxxx
Jurvetson ePlanet Partners Fund, LLC, a California limited liability company,
and Xxxxxx Xxxxxx Jurvetson ePlanet Ventures GmbH & Co. KG, a German partnership
(each, an Investor, collectively, "Xxxxxx Xxxxxx", and, together with Softbank,
the "Investors").
INTRODUCTION
WHEREAS, Vie has requested that the Investors severally extend Vie
credit in the principal amounts set forth herein and for the purposes set forth
in Section 7.1(a) hereof and whereas the Investors are willing to extend such
credit on the terms and conditions contained in this Loan Agreement; and
WHEREAS, the amount advanced by the Investors to Vie pursuant to this
Loan Agreement may be applied to the purchase of equity in Vie under the terms
and conditions specified in this Loan Agreement;
Now, therefore, in consideration of the mutual promises contained
herein and other good and valuable consideration, receipt of which is hereby
acknowledged, and in order to induce the Investors to extend such credit, Vie
and the Investors hereby agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 Definitions and Exhibits. Terms defined above or in the
text of this Loan Agreement shall have the meanings set forth herein. Other
capitalized terms shall have the meaning set forth in the Definitions Addendum,
which is attached and incorporated herein. All exhibits to this Loan Agreement
are also incorporated herein.
ARTICLE 2.
THE COMMITMENT
Section 2.1 Term Commitment. Subject to the terms and conditions of
this Loan Agreement, each Investor agrees, severally and not jointly, to make a
loan on the Closing Date to Vie in the principal amount set forth opposite such
Investor's name
on Schedule 2.1 hereof. The Loan shall bear interest as provided in this Loan
Agreement. The Loan shall be evidenced by the Notes and this Loan Agreement.
Subject to the conditions set forth in this Loan Agreement, at
the Closing each Investor, severally and not jointly, shall disburse the portion
of the Loan to be advanced by such Investor, less reimbursement to such Investor
in respect of the fees and disbursements of such Investor's counsel in
connection with this Loan Agreement and, in the case of Softbank, in connection
with or relating to the Securities Purchase Agreement, dated as of February 4,
2002, between The Ashton Technology Group, Inc. and OptiMark Innovations Inc.
("OII"), and the transactions contemplated thereby.
Section 2.2 Evidence of Indebtedness. Each of the Investors shall
maintain records evidencing amounts of principal and interest paid by or on
behalf of Vie to such Investor hereunder.
ARTICLE 3.
REPAYMENT, INTEREST AND CONVERSION
Section 3.1 Payment Of Principal and Interest. The outstanding
principal balance on each of the Notes, together with all accrued but unpaid
interest, shall be due and payable on the Maturity Date (as defined below).
The "Maturity Date", with respect to a Note, shall be May 4, 2006.
Section 3.2 Interest Rate. Interest on the outstanding principal
balance of the Notes shall accrue at the rate of eight percent (8%) per annum,
simple interest calculated based on a 360-day year of twelve 30-day months. Upon
the occurrence and during the continuance of an Event of Default, interest on
the outstanding principal balance of the Notes shall accrue at the Default Rate
specified in Section 4.2 hereof. Vie may, at its election, from time to time
prior to the Maturity Date, pay accrued and unpaid interest in cash. Except as
otherwise provided in Section 3.5 hereof, all accrued but unpaid interest shall
be due and payable on the Maturity Date in cash. If it is ever determined that
the rate of interest is in excess of any maximum rate (if any) prescribed by
law, then that portion of interest payments representing any amounts in excess
of said maximum shall be deemed a payment of principal and applied by the
Investors at any time against the outstanding principal balance.
Section 3.3 Prepayment. Upon 30 days prior written notice of Vie to
the Investors, the Loan may be prepaid, in whole or in part without prepayment
fee, premium or penalty. Any prepayment shall first be applied to Costs and
Fees, if any, described in Section 4.1, then to interest and then to the
outstandingprincipal balance of the Notes, or in such other order as the
Investors may, in their sole discretion, determine.
Section 3.4 Manner, Method, Place, Time and Application of Payment,
Reinstatement, Waivers. Except as otherwise provided in Section 3.5 hereof, all
Obligations shall be paid in lawful currency of the United States and in
immediately available funds to the Investors by wire transfer in immediately
available funds to such bank account as the Investors or any assignee may
designate in writing. The liability of
Vie hereunder and under any Transaction Document shall be reinstated and revived
and the rights of the Investors shall continue to the extent of any amount at
any time paid by or on behalf of Vie if such amount shall thereafter be required
to be restored, returned or forfeited by the Investors pursuant to any
Requirement of Law, and Vie's liability therefor shall continue as if such
amount had not been paid.
Vie agrees that if for any reason any amount due hereunder or under
any Transaction Document is paid by cashier's, certified or other check, there
shall be no discharge of Vie's obligation until such check be finally paid by
the issuer thereof.
All payments under this Loan Agreement shall be made without
counterclaim, set-off, condition or qualification and free and clear of (and
without deduction for) any Taxes, deductions or charges of any nature whatsoever
and irrespective of any default by the Investors under any Transaction Document.
All payments (other than prepayments which shall be applied as specified in the
preceding Section 3.3) shall be applied first against Costs and Fees, if any,
described in Section 4.1, then against indemnities and all amounts due hereunder
other than principal and interest, then against interest and then against the
outstanding principal balance of the Loan.
Section 3.5 Conversion.
(a) Optional Conversion.
(i) At any time on or after the completion by Vie
of any issuance and sale of Stock on or prior to the Maturity Date (an
"Additional Financing"), in lieu of an Investor's receipt of repayment of the
principal of, and interest on, the Note in lawful currency of the United States
in immediately available funds as provided in Section 3.4, such Investor may
elect, in its sole discretion, to convert the Conversion Loan Amount into a
number of shares of Stock of the same class as those issued and sold in such
Additional Financing (the "Optional Conversion") determined by dividing the
Conversion Loan Amount by the Applicable Conversion Price; provided, however,
that the issuance of Common Stock (including warrants exercisable for Common
Stock) to any vendors, service providers or sales representatives of Vie in an
aggregate amount with respect to all such issuances not in excess of 2% of the
shares of Common Stock outstanding on the date hereof and the issuance of Common
Stock upon exercise of options described in clause (i) of the definition of
"Additional Shares of Conversion Stock" in Section 3.5(d)(i) shall not
constitute an Additional Financing. The shares of Stock received by Investors
upon the occurrence of an Optional Conversion shall be entitled to the same
rights and subject to the same obligations, including, but not limited to, those
rights and obligations set forth in the stock purchase agreement and other
agreements relating to the Additional Financing, as the shares of Stock that are
issued and sold in the Additional Financing.
(ii) If an Investor fails to exercise its right to
Optional Conversion prior to the Conversion Date, then such right shall
terminate with respect to such Additional Financing.
(iii) Prior to consummation of any Additional Financing, Vie
shall give to the Investors written notice describing in reasonable detail the
terms of such Additional Financing and the terms of the Stock issuable upon such
Additional Financing, and shall provide to the Investors copies of all
agreements and instruments relating to such Additional Financing.
(b) Final Conversion. At any time following the Closing Date Closing
Date, in lieu of an Investor's receipt of repayment of the principal of, and
interest on, the Note in lawful currency of the United States in immediately
available funds as provided in Section 3.4, such Investor may elect, in its sole
discretion, to convert the Conversion Loan Amount into a number of shares of
Common Stock (the "Final Conversion") determined by dividing the Conversion Loan
Amount by the Applicable Conversion Price.
(c) Adjustments.
(i) Stock Splits and Dividends. If the Stock which Vie
shall be required to deliver to any of the Investors pursuant to Section 3.5(a)
or (b) shall be subdivided into a greater number of shares or consolidated into
a lesser number of shares or a dividend shall be paid in respect of such Stock,
then the number of shares of Stock that Vie shall be required to deliver to such
Investor pursuant to such Section 3.5(a) or (b) shall, concurrently with the
effectiveness of such subdivision or consolidation or immediately after the
record date of such dividend, be modified so that the number of shares of Stock
which such Investor would otherwise have been entitled to receive and Vie would
otherwise have been required to deliver pursuant to such Section 3.5(a) or (b)
shall be replaced by such number of shares of the class or series of capital
stock, and such amount of cash or other property, right, or consideration, as
the case may be, if any, into which the shares of Stock to be delivered to such
Investor pursuant to such Section 3.5(a) or (b) immediately before such event
would have been subdivided or consolidated or that the shares of Stock to be
delivered to such Investor pursuant to such Section 3.5(a) or (b) immediately
before such event would have been entitled to receive as a dividend (assuming
such holder exercised any rights of election to receive any such dividend in
cash but otherwise did not exercise any rights to elect to receive any
particular form of consideration).
(ii) Reclassification and Reorganization. If the Stock which
Vie shall be required to deliver to any of the Investors pursuant to Section
3.5(a) or (b) shall be exchanged for or changed into any other class or series
of capital stock of any issuer, cash or any other property, right, or form of
consideration, whether by capital reorganization, reclassification, merger,
consolidation, reorganization or otherwise, then the number of shares of Stock
that Vie shall be required to deliver to such Investor pursuant to such Section
3.5(a) or (b) shall, concurrently with the effectiveness of such reorganization,
reclassification, merger, consolidation, reorganization or other event, be
modified so that the number of shares of Stock which such Investor would
otherwise have been entitled to receive and Vie would otherwise have been
required to deliver pursuant to such Section 3.5(a) or (b) shall be replaced by
such number of shares of the class or series of capital stock, and such amount
of cash or other property, right, or
consideration, as the case may be, into which the shares of Stock to be
delivered to such Investor pursuant to such Section 3.5(a) or (b) immediately
before such event would have been converted or exchanged by a holder of such
shares (assuming such holder exercised any rights of election to receive cash in
such transaction but otherwise did not exercise any rights to elect to receive
any particular form of consideration).
(d) Adjustments to Conversion Price for Certain Diluting Issues.
(i) Special Definitions. For purposes of this Section 3.5,
the following definitions apply:
"Conversion" means an Optional Conversion or a Final Conversion, as
the case may be.
"Conversion Loan Amount" means, in the case of an Optional Conversion
or Final Conversion, such portion of the outstanding principal and interest
owing to an Investor as such Investor elects to convert.
"Conversion Stock" means:
(1) in the case of an Optional Conversion, the class of
Stock issued and sold in the Additional Financing; or
(2) in the case of a Final Conversion, Common Stock.
"Convertible Securities" shall mean any evidences of Indebtedness,
shares or other securities convertible into or exchangeable for shares of
Conversion Stock.
"Options" means rights, options, or warrants to subscribe for,
purchase or otherwise acquire Conversion Stock.
"Additional Shares of Conversion Stock" means all shares of Conversion
Stock issued or deemed to have been issued by Vie after the Closing Date, other
than shares of Conversion Stock issued or issuable:
(1) upon exercise of Options to purchase Conversion
Stock issued by Vie to its employees, directors or consultants with the approval
of the Board; or
(2) for which the number of shares of Conversion Stock
to be received by the Investors pursuant to Section 3.5(a) or (b) has been
adjusted pursuant to Section 3.5(c).
"Conversion Date" means:
(3) in the case of an Optional Conversion relating to any
Additional Financing, the date that is 30 days following the later of
(a) the closing date of such Additional Financing and (b) the date the
Investors are given written notice of such Additional Financing in
accordance with Section 3.5(a); or
(4) in the case of a Final Conversion, any date on which an
Investor elects, in its sole discretion, to convert the Conversion Loan
Amount pursuant to Section 3.5(b) above.
"Applicable Conversion Price" means (i) in the case of the
Optional Conversion in respect of an Additional Financing, the price paid by
purchasers in such Additional Financing and (ii) in the case of the Final
Conversion, U.S. $0.0448, in the case of (ii) as adjusted pursuant to this
Section 3.5(d).
(ii) No Adjustment of Applicable Conversion Price. Any provision
herein to the contrary notwithstanding, no adjustment in the Applicable
Conversion Price shall be made unless in connection with the issuance or deemed
issuance of Additional Shares of Conversion Stock made in connection with any
transaction that does not constitute an Additional Financing the consideration
per share (determined pursuant to Section 3.5(d)(iv) hereof) for the Stock
issued or deemed to be issued by Vie in such transaction is less than the
Applicable Conversion Price in effect on the date of, and immediately prior to,
such issue; and
(iii) Adjustment of Applicable Conversion Price. In the event
Vie, at any time after the Closing Date, shall issue Additional Shares of
Conversion Stock that are issued in any transaction that does not constitute an
Additional Financing without consideration or for a consideration per share less
than the Applicable Conversion Price in effect on the date of, and immediately
prior to, such issue, then and in such event, the Applicable Conversion Price
then in effect shall be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying such Applicable
Conversion Price by a fraction, the numerator of which shall be the sum of the
number of shares of Conversion Stock outstanding immediately prior to such issue
plus the number of shares of Conversion Stock which the aggregate consideration
received by Vie for the total number of shares of such Stock so issued would
purchase at the Applicable Conversion Price in effect immediately prior to such
issuance, and the denominator of which shall be the number of shares of
Conversion Stock outstanding immediately prior to such issue plus the number of
shares of such Stock so issued. For the purpose of the above calculation, the
number of shares of Conversion Stock outstanding immediately prior to such issue
shall be calculated on a fully diluted basis, as if any outstanding Options to
purchase Conversion Stock had been fully exercised as of such date.
(iv) Determination of Consideration. For purposes of this Section
3.5(e), the consideration received by Vie for the issue of any shares of Stock
that are issued in any transaction that does not constitute an Additional
Financing shall be computed as follows:
(1) Cash and Property: Such consideration shall:
a. insofar as it consists of cash, be computed at
the aggregate amount of cash received by Vie excluding amounts
paid or payable for accrued interest or accrued dividends;
b. insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such
issue, as determined in good faith by the Board; and
c. in the event shares of Stock that are issued in
any transaction that does not constitute an Additional Financing
are issued together with any shares of other Stock or other
assets of Vie for consideration which covers both, be the
proportion of such consideration so received, computed as
provided in clauses (a) and (b) above, as determined in good
faith by the Board.
(2) Options and Convertible Securities. The
consideration per share received by Vie for shares of Stock that are
issued in any transaction that does not constitute an Additional
Financing, if such Stock relates to Options or Convertible Securities,
shall be determined by dividing:
a. the total amount, if any, received or
receivable by Vie as consideration for the issue of such Options
and Convertible Securities, plus the minimum aggregate amount of
additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained
therein designed to protect against dilution) payable to Vie upon
the exercise of such Options or the conversion or exchange of
such Convertible Securities, or in the case of Options for
Convertible Securities, the exercise of such options for
Convertible Securities and the conversion or exchange of such
Convertible Securities, by
b. the maximum number of shares of Conversion
Stock (as set forth in the instruments relating thereto, without
regard to any provision contained therein designed to protect
against dilution) issuable upon the exercise of such Options or
the conversion or exchange of such Convertible Securities.
(e) Investors' Preferred Stock.
(i) If Vie does not have available for issuance a
sufficient number of shares of Conversion Stock as required in the event of a
Conversion, Vie shall use its best efforts to cause its certificate of
incorporation to be amended promptly to increase the number of authorized shares
of such Conversion Stock such that there are a sufficient number of shares of
such Conversion Stock available for issuance upon such Conversion.
(ii) Notwithstanding Section 3.5(e)(i) above, if at
the time of a Conversion Vie does not have available for issuance a sufficient
number of shares of Conversion Stock to effect a Conversion, upon such
Conversion the Conversion Loan Amount shall convert into:
(1) such number of shares of Conversion Stock as
are available for issuance; and
(2) a number of shares of a new series of
preferred stock (which Vie shall use its best efforts to create)
("Investors' Preferred Stock") as shall have, in the aggregate, rights,
privileges and preferences (including without limitation with respect
to dividends, voting and rights upon liquidation or dissolution of Vie)
at least as favorable to the Investors as, and which shall be
convertible at any time into, the number of shares of Conversion Stock
into which the Conversion Loan Amount is convertible (subject to
anti-dilution adjustments and other provisions at least as favorable to
the Investors as set forth in this Section 3.5), less the number of
shares of Conversion Stock actually issued pursuant to Section
3.5(e)(ii)(1) above.
(iii) If the Conversion Stock which Vie shall be
required to deliver to any of the Investors pursuant to conversion of Investors'
Preferred Stock as provided by Section 3.5(e)(ii)(2) above shall be exchanged
for or changed into any other class or series of capital stock of any issuer,
cash or any other property, right or form of consideration, whether by capital
reorganization, reclassification, merger, consolidation, reorganization or
otherwise, then the number of shares of Conversion Stock that Vie shall be
required to deliver to such Investor pursuant to such Section 3.5(e)(ii)(2)
shall, concurrently with the effectiveness of such reorganization,
reclassification, merger, consolidation, reorganization or other event, be
modified so that the number of shares of Conversion Stock which such Investor
would otherwise have been entitled to receive and Vie would otherwise have been
required to deliver pursuant to such Section 3.5(e)(ii)(2) shall be replaced by
such number of shares of the class or series of capital stock, such amount of
cash or other property, right, or consideration, as the case may be, into which
the shares of Conversion Stock to be delivered to such Investor pursuant to such
Section 3.5(e)(ii)(2) immediately before such event would have been converted or
exchanged by a holder of such shares (assuming such holder exercised any rights
of election to receive cash in such transaction but otherwise did not exercise
any rights to elect to receive any particular form of consideration).
(iv) For so long as any of the Investors holds
Investors' Preferred Stock, Vie shall be under a continuing obligation to use
its best efforts to make available, and maintain the availability of, a
sufficient number of shares of Conversion Stock (as adjusted pursuant to Section
3.5(e)(iii) above) to allow the conversion of the Investors' Preferred Stock
into such Conversion Stock as provided in Section 3.5(e)(ii) above.
(f) More Than One Purchase Price. If more than one purchase
price is paid by purchasers, or if different purchasers pay different purchase
prices, in an
Additional Financing, the purchase price paid by purchasers in such financing,
for purposes of this Loan Agreement, shall be deemed to be the lowest purchase
price paid by purchasers for all shares of Stock issued and sold in such
Additional Financing.
(g) Non-Cash Consideration. If any part of the purchase
price paid by purchasers in an Additional Financing is consideration other than
cash, the value of such non-cash consideration shall be as determined by the
Board, in its reasonable judgment, and the purchase price paid by purchasers in
such financing, for purposes of this Loan Agreement, shall be deemed to include
the value of such non-cash consideration.
(h) Deemed Issuances of Additional Shares of Conversion
Stock. In the event Vie at any time or from time to time after the Closing Date
shall issue any Options or Convertible Securities or shall fix a record date for
the determination of holders of any class of securities entitled to receive any
such Options or Convertible Securities, then the maximum number of shares (as
set forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Conversion
Stock issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Conversion Stock issued
as of the time of such issue or in the case such a record date shall have been
fixed, as of the close of business on such record date; provided that Additional
Shares of Conversion Stock shall not be deemed to have been issued with respect
to an adjustment of the Applicable Conversion Price unless the consideration per
share (determined pursuant to Section 3.5(d)(iv)) of such Additional Shares of
Conversion Stock would be less than the Applicable Conversion Price in effect on
the date of and immediately prior to such issue, or such record date, as the
case may be; and provided, further, that in any such case in which Additional
Shares of Conversion Stock are deemed to be issued:
(i) No further adjustment in the Applicable
Conversion Price shall be made upon the subsequent issue of Convertible
Securities or shares of Conversion Stock upon the exercise of such Options or
conversion or exchange of such Convertible Securities;
(ii) If such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any increase or
decrease in the consideration payable to Vie, or decrease or increase in the
number of shares of Conversion Stock issuable, upon the exercise, conversion or
exchange thereof, the Applicable Conversion Price shall, upon any such increase
or decrease becoming effective, be recomputed to reflect such increase or
decrease insofar as it affects such Options or the rights of conversion or
exchange under such Convertible Securities;
(iii) upon the expiration of any such Options or any
rights of conversion or exchange under such Convertible Securities which shall
not have been exercised, the Applicable Conversion Price shall, upon such
expiration, be recomputed as if:
(1) in the case of Convertible Securities or Options
for Conversion Stock, the only Additional Shares of Conversion Stock
issued were the shares of Conversion Stock, if any, actually issued
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities and the consideration received therefor was the
consideration actually received by Vie for the issue of such exercised
Options plus the consideration actually received by Vie upon such
exercise or for the issue of all such Convertible Securities which were
actually converted or exchanged, plus the additional consideration, if
any, actually received by Vie upon such conversion or exchange, and
(2) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such
Options, and the consideration received by Vie for the Additional
Shares of Conversion Stock deemed to have been then issued was the
consideration actually received by Vie for the issue of such exercised
Options, plus the consideration deemed to have been received by Vie
(determined pursuant to Section 3.5(d)(iv)) upon the issue of the
Convertible Securities with respect to which such Options were actually
exercised;
(iv) no readjustment pursuant to clause (ii) or (iii)
above shall have the effect of either increasing the Applicable Conversion Price
to an amount which exceeds the lower of (1) the Applicable Conversion Price on
the original adjustment date, and (2) the Applicable Conversion Price that would
have resulted from any issuance of Additional Shares of Conversion Stock between
the original adjustment date and such readjustment date; and
(v) if such record date shall have been fixed and such
Options or Convertible Securities are not issued on the date fixed therefor, the
adjustment previously made in the Applicable Conversion Price, which became
effective on such record date, shall be canceled as of the close of business on
such record date, and thereafter such Applicable Conversion Price shall be
adjusted pursuant to Section 3.5(d)(iii) as of the actual date of their
issuance.
Notwithstanding the foregoing, no adjustment or readjustment shall be made
pursuant to this Section 3.5(h) in connection with the issuance or deemed
issuance of Additional Shares of Conversion Stock in a transaction that
constitutes an Additional Financing.
ARTICLE 4.
OTHER PAYMENTS
Section 4.1 Costs and Fees. Upon demand therefor, Vie agrees to
pay to the Investors all Costs and Fees Arising Out Of: the performance of any
of the Transaction Documents; the renewal, modification, extension, forbearance
(if any), refinancing, renegotiations or restructuring of any Transaction
Document; collecting any and all Obligations; and/or enforcing any Transaction
Document.
Section 4.2 Calculations; Default Interest; Compounded Interest.
Except as otherwise expressly set forth in this Loan Agreement, all computations
of interest and fees under this Loan Agreement or any other Transaction Document
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
All amounts that are not paid when due under this Loan Agreement shall bear
interest at the rate of twelve percent (12%) per annum (the "Default Rate"),
compounded every 90 days after the Default Rate becomes applicable.
ARTICLE 5.
CONDITIONS TO LENDING,
SECURITY
AND
OTHER COVENANTS
Section 5.1 Conditions. The obligation of the Investors to make the
Loan is subject to fulfillment by Vie of all of the following conditions:
(a) Execution and delivery by Vie of the Transaction
Documents.
(b) The representations and warranties contained in Article 6
hereof and in each Transaction Document shall be accurate in all material
respects (except with respect to representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be accurate in
all respects) on and as of Closing as though made on and as of such date and no
Event of Default and no condition or event which, with the giving of notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing on Closing and the Investors shall have received a certificate in
the form set forth on Exhibit B attached hereto and signed by the Chief
Executive Officer of Vie, dated as of the Closing Date, to that effect.
(c) Vie shall have complied with all covenants and obligations
to be performed or observed by it at or prior to such time.
(d) Vie shall have obtained all consents of third parties,
including, without limitation, any Governmental Body, required in connection
with the execution and delivery of the Transaction Documents and consummation of
the transactions contemplated thereby.
(e) The Investors shall have received a written opinion of
counsel for Vie, dated the Closing Date, in substantially the form of Exhibit C.
(f) The Investors shall have received a Secretary's
Certificate attaching copies of all corporate action taken by Vie to authorize
the Transaction Documents, and the borrowings thereunder and issuances and other
actions contemplated thereby, certified as of the Closing Date by the Secretary
of Vie.
(g) There shall not be pending or threatened any action or
proceeding before any court or administrative agency relating to the
transactions contemplated by the Transaction Documents which could reasonably be
expected to
materially impair the ability of Vie to perform its obligations under any
Transaction Document or which could reasonably be expected to materially impair
the ability of Vie to issue the Stock issuable upon conversion pursuant to
Section 3.5.
(h) Except as described in Vie's Quarterly Report on Form 10-Q
for the period ended September 30, 2002 (the "10-Q") or Vie's Annual Report on
Form 10-K for the period ended December 31, 2001 (the "10-K"), or otherwise
described in the Financial Disclosure, dated the date hereof, delivered by Vie
to the Investors, since September 30, 2002, there has been no event, occurrence,
change, development or state of affairs that had or could reasonably be expected
to have a Material Adverse Effect.
(i) The Investors shall have received such other documents as
the Investors may reasonably request.
Section 5.2 Conditions of Vie. The representations and warranties
contained in Article 6 hereof on behalf of each Investor shall be accurate on
and as of Closing as though made on and as of such date, and Vie shall have
received a certificate from each Investor to that effect.
Section 5.3 Conditions Not Fulfilled. If the above conditions are not
fulfilled or if the Loan or any portion thereof is not made because of such
nonfulfillment of conditions, neither the Investors nor Vie shall be responsible
to each other or any other Person for any Loss Arising Out Of nonfulfillment of
the above conditions or a failure to make the Loan.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of Vie. The representations
and warranties contained in the Transaction Documents shall be deemed to have
been relied upon by the Investors and shall survive the Closing.
Vie hereby represents and warrants to the Investors as follows:
(a) Organization, Good Standing and Power. Each of Vie and the
Subsidiaries is a corporation or a limited liability company, each duly
organized and existing, in good standing, under the laws of the jurisdiction of
its incorporation, and each has the corporate or company power to own its
property and to carry on its business as now being conducted and is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the properties owned or leased by it therein or in which the
transaction of its business makes such qualification necessary, except for
failures to be in good standing or qualified that would not in the aggregate
have a Material Adverse Effect.
(b) Corporate Authority. Except as set forth in Schedule
6.1(k), Vie has full corporate power and authority to enter into this Loan
Agreement, to make the borrowings contemplated hereby, to execute and deliver
the Notes and to incur the Obligations provided for herein and therein, all of
which have been duly authorized by all
proper and necessary corporate action. No consent or approval of stockholders or
of any Governmental Body is required as a condition to the validity or
performance by Vie of any Transaction Document.
(c) Authorizations. All authorizations, consents, approvals,
registrations, exemptions and licenses with or from Governmental Bodies which
are necessary for the borrowings hereunder, the execution and delivery by Vie of
this Loan Agreement, the Notes and the performance by Vie of its Obligations
hereunder and thereunder have been effected or obtained and are in full force
and effect.
(d) Binding Agreement. The Transaction Documents constitute
the valid and legally binding obligations of Vie, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and, as to
enforcement, to general equity principles.
(e) Litigation. Except as described in the 10-Q or the 10-K,
there are no proceedings or investigations pending or, to the knowledge of the
executive officers of Vie, threatened before any court or arbitrator or before
or by any Governmental Body which, in any one case or in the aggregate, if
determined adversely to the interests of Vie, or any of its Subsidiaries, would
have a Material Adverse Effect.
(f) No Conflicts. There is no statute, regulation, rule, order
or judgment, and no provision of any mortgage, indenture, contract or agreement
binding on Vie or any of its Subsidiaries or affecting their properties which
would prohibit, conflict with or in any way prevent the execution, delivery, or
carrying out of the terms of the Transaction Documents.
(g) Financial Condition. Except as has been described in
documents referred to in Section 5.1(h) hereof or otherwise described in writing
to the Investors prior to the execution and delivery of this Loan Agreement, (i)
there are no material Liabilities of Vie or any of its Subsidiaries as of the
date of such balance sheet which are not reflected therein or in the notes
thereto, and (ii) except as has been described in the Financial Disclosure,
dated the date hereof, delivered by Vie to the Investors or disclosed in the
10-K or the 10-Q, there has been no event, occurrence, change, development or
state of affairs since September 30, 2002 that had or could reasonably be
expected to have a Material Adverse Effect.
(h) Company Reports; Financial Statements. Vie has made
available to the Investors each registration statement, prospectus, report,
proxy statement or information statement prepared by it since January 1, 2002,
including the 10-Q and the 10-K in the form (including exhibits, annexes and any
amendments thereto) filed with SEC (collectively, including any such reports
filed subsequent to the date hereof and as amended, the "Company Reports"). As
of their respective dates, the Company Reports did 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 made therein, in light of the
circumstances in which they were made, not misleading. Each of the consolidated
balance sheets included in or incorporated by reference into the Company Reports
(including the related notes and schedules) fairly presents in all material
respects (subject, in the case of unaudited statements, to normal recurring
audit adjustments which are not material in amount) the consolidated financial
position of Vie and its Subsidiaries as of its date and each of the consolidated
statements of operations and statements of cash flows included in or
incorporated by reference into the Company Reports (including any related notes
and schedules) fairly presents in all material respects (subject, in the case of
unaudited statements, to normal recurring audit adjustments which are not
material in amount) the results of operations and cash flows, as the case may
be, of Vie and its Subsidiaries for the periods set forth therein, in each case
in accordance with GAAP consistently applied during the periods involved, except
as may be noted therein.
(i) Company Information. None of the Transaction Documents or
the Financial Disclosure, dated the date hereof, delivered by Vie to the
Investors contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances under which they were made, not misleading.
(j) Reserved Preferred Stock. Vie has reserved and made
available for issuance, free from preemptive rights, out of its authorized but
unissued shares of preferred stock, a sufficient number of shares of preferred
stock to issue the Investors' Preferred Stock pursuant to Section 3.5(e) in the
event of a Conversion.
(k) Certain Indebtedness. Except as set forth in the 10-Q or
10-K or in Schedule 6.1(k), each of Vie and its Subsidiaries has performed all
obligations to be performed by it under its Indebtedness, including the RGC
Note, and no event or condition exists that constitutes or, after notice or
lapse of time or both, would constitute a default on the part of Vie or any of
its Subsidiaries under their Indebtedness.
Section 6.2 Representations and Warranties of the Investors. The
representations and warranties contained in any Transaction Document shall be
deemed to have been relied upon by Vie and shall survive the Closing.
Each Investor hereby represents and warrants to Vie as follows:
(a) Organization, Good Standing and Power. Each Investor is
either a limited liability company or partnership, each duly formed and
existing, in good standing, under the laws of the jurisdiction of its formation.
(b) Corporate Authority. Each Investor has full company power
and authority to enter into this Loan Agreement, to consummate the transactions
provided herein, all of which have been duly authorized by all proper and
necessary company action. No consent or approval of any Governmental Body is
required as a condition to the validity or performance by each Investor of any
Transaction Document.
(c) Binding Agreement. The Transaction Documents constitute
the valid and legally binding obligations of each Investor, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, reorganization
and other laws of general
applicability relating to or affecting creditors' rights and, as to enforcement,
to general equity principles.
(d) Private Placement.
(i) Each Investor understands that (1) the offering
and sale of the Securities by Vie is intended to be exempt from registration
under the Securities Act pursuant to Section 4(2) thereof and (2) there is no
existing public or other market for the Securities.
(ii) Each Investor (either alone or together with its
advisors) has sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of its investment
in the Securities and is capable of bearing the economic risks of such
investment.
(iii) Each Investor is acquiring or will acquire the
Securities to be acquired hereunder for its own account, for investment and not
with a view to the public resale or distribution thereof, in violation of any
securities law.
(iv) Each Investor understands that the Securities
will be issued in a transaction exempt from the registration or qualification
requirements of the Securities Act and applicable state securities laws, and
that such securities must be held indefinitely unless a subsequent disposition
thereof is registered or qualified under the Securities Act and such laws or is
exempt from such registration or qualification.
(v) Each Investor (1) has been furnished with or has
had full access to all of the information that it considers necessary or
appropriate to make an informed investment decision with respect to the
Securities and that it has requested from Vie, (2) has had an opportunity to
discuss with management of Vie the intended business and financial affairs of
Vie and to obtain information (to the extent Vie possessed such information or
could acquire it without unreasonable effort or expense) necessary to verify any
information furnished to it or to which it had access and (3) can bear the
economic risk of (x) an investment in the Securities indefinitely and (y) a
total loss in respect of such investment; it being understood that nothing set
6.2(d) shall affect the representations, warranties or other obligations of Vie,
forth in this Section or the rights and remedies of each Investor, under this
Agreement or otherwise in any way whatsoever.
(vi) Each Investor qualifies as an "accredited
investor" as such term is defined under Rule 501 under the Securities Act.
ARTICLE 7.
COVENANTS
Section 7.1 Covenants. Until all Obligations are irrevocably satisfied
in full, Vie hereby covenants and agrees that unless the Investors otherwise
Consent, Vie shall:
(a) Use of Proceeds. Apply the proceeds of the Loan only to such
purposes and in such manner as shall be approved prior to such application by
the Board.
(b) Financial Statements and Reports. In the event Vie ceases to be
required to file annual and quarterly reports pursuant to the Exchange Act,
deliver to the Investors in form and detail reasonably satisfactory to the
Investors periodic reports as follows:
(i) Monthly Reports. Vie shall furnish to the Investors as
soon as practicable, and in any case within fifteen (15) days of the end of each
calendar month (except for the last month of each fiscal quarter), consolidated
and consolidating balance sheets of Vie and its Subsidiaries as of the close of
such period and consolidated and consolidating statements of income and expense
from the beginning of such period to the close of such period, certified by the
Chief Financial Officer of Vie and accompanied by a certificate of said officer
explaining any significant differences in the statements from Vie's operating
plan and budget for the period covered, stating whether any event has occurred
which constitutes an Event of Default or which, with the giving of notice or the
lapse of time, or both, would constitute such an Event of Default and, if so,
stating the facts with respect thereto, and stating that such statements fairly
present, in all material respects in accordance with GAAP, the consolidated
financial position and consolidated financial results of Vie for the month
covered;
(ii) Quarterly Reports. Vie shall furnish to the Investors
as soon as practicable, and in any case within forty five (45) days after the
end of each of Vie's fiscal quarters, consolidated and consolidating balance
sheets of Vie and its Subsidiaries as of the close of such period and
consolidated and consolidating statements of income and expense and cash flows
from the beginning of the then current fiscal year and from the beginning of
such fiscal quarter to the close of such period, certified by the Chief
Financial Officer of Vie and accompanied by a certificate of said officer
explaining any significant differences in the statements from Vie's operating
plan and budget for the period covered, stating whether any event has occurred
which constitutes an Event of Default or which, with the giving of notice or the
lapse of time, or both, would constitute such an Event of Default and, if so,
stating the facts with respect thereto, and stating that such statements fairly
present, in all material respects in accordance with GAAP, the consolidated
financial position and consolidated financial results of Vie for the periods
covered;
(iii) Annual Reports and Budget. Vie shall furnish to the
Investors as soon as practicable, and in any case within ninety (90) days after
the close of each of Vie's fiscal years, (1) a copy of the annual audit report
relating to Vie and its Subsidiaries in reasonable detail satisfactory to the
Investors and prepared in accordance with GAAP by independent public accountants
satisfactory to the Investors, together with financial statements consisting of
consolidated and consolidating balance sheets of Vie and its Subsidiaries as of
the end of such fiscal year and consolidated and consolidating statements of
income and expense, retained earnings, paid-in capital and surplus and cash
flows of Vie and its Subsidiaries for such fiscal year; (2) a letter or opinion
of the accountants who prepared the annual audit report relating to Vie and its
Subsidiaries stating whether anything in such accountants' examination has
revealed the occurrence of any event which constitutes an Event of Default or
which, with the giving of notice or the lapse of time, or both, would constitute
such an Event of Default and, if so, stating the facts with respect thereto; and
(3) an annual operating plan and budget, prepared on a monthly basis, for the
next immediate fiscal year. Vie shall also furnish to the Investors, within a
reasonable time of its preparation, amendments to the annual budget, if any.
(c) Notices. To the extent known to Vie, promptly give notice to the
Investors of the occurrence of, and the occurrence of any material development
in, (i) any Event of Default or any event which, upon a lapse of time or notice
or both, would become an Event of Default, (ii) any material Claim, or (iii) any
event or circumstance that could reasonably be expected to have a Material
Adverse Effect.
(d) Compliance with Laws. Conduct its operations and cause those of
its Subsidiaries to be conducted only in compliance with all policies of
insurance and all Requirements of Law, except where any failure could not
reasonably be expected to have a Material Adverse Effect.
(e) Maintenance of Records. Maintain adequate and complete records
and books of account in accordance with GAAP, which books shall reflect all
financial transactions of Vie. Vie shall also permit any of the Investors'
representatives upon reasonable request and during normal business hours to
visit and inspect any of the properties of Vie, to examine all its books of
account, records, reports and other papers and to make copies and extracts
therefrom, at such Investor's own expense. In addition, Vie shall also permit
any of the Investors' representatives to discuss its affairs, finances and
accounts with its officers, employees and independent public accountants all at
such reasonable times and as often as may be reasonably requested.
(f) Indemnification. Indemnify, defend and hold harmless the
Investors from and against any and all Claims and Liabilities Arising Out Of (i)
any inaccuracy when made of any representation or warranty contained in any
Transaction Document or any breach by Vie of any covenant or agreement in this
any Transaction Document; and (ii) the performance, enforcement (including
affirmative suits and the defense of any Claim or Liability whatsoever) and
collection of any Transaction Document. Notwithstanding the foregoing, Vie shall
not be required to indemnify, defend or hold harmless the Investors for any
Claims or Losses directly and actually caused by the gross negligence or willful
misconduct of the Investors. Nothing in this section is intended to limit or
shall limit any obligation of Vie to the Investors, including but not limited to
the repayment obligations of Vie contained in Article 3.
(g) Preservation of Existence and Property. Preserve and maintain its
existence in the jurisdiction of its formation and qualify, and cause its
Subsidiaries to qualify, and remain qualified, and cause each of its
Subsidiaries to remain qualified, as a foreign corporation in each jurisdiction
where the failure to so qualify could have a Material Adverse Effect. Vie shall
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable to the normal conduct of its business, and
shall comply and cause each of its Subsidiaries to comply with all Contractual
Obligations and Requirements of Law except to the extent that the failure to
comply therewith would not, in the aggregate, have a Material Adverse Effect.
(h) Incurrence of Indebtedness; Subsidiary Stock.
(i) Not create, incur, assume or suffer to exist any
Indebtedness, or permit any of its Subsidiaries so to do, except (a)
Indebtedness to the Investors, (b) Indebtedness of Vie or any of its
Subsidiaries outstanding on the date hereof (but without any extension or
increase in the principal amount thereof or other modification or amendment
effected after the date hereof, except if such increase is concurrently applied
to repay the Loan in full), (c) Subordinated Indebtedness or (d) Indebtedness
that by its terms and conditions is senior to, or pari passu with, the Loan, so
long as the proceeds of such Indebtedness are concurrently applied to pay the
outstanding principal balance and accrued but unpaid interest on the Loan.
(ii) Not permit any Subsidiary of Vie to issue any class of
capital stock except to Vie or a wholly-owned Subsidiary of Vie.
(i) Liens. Not, and not permit any of its Subsidiaries to, incur any
Lien upon any of its property or assets, now owned or hereinafter acquired;
provided, however, Vie may incur Liens in connection with any Indebtedness the
proceeds of which are concurrently applied to pay the outstanding principal
balance and accrued but unpaid interest on the Loan.
(j) Transactions with Related Persons. Not, and not permit any of its
Subsidiaries to, directly or indirectly enter into any transaction (including,
without limitation, the purchase, sale, lease or exchange of property, the
rendering of any service or the making of any loan or advance) with any officer
or director of Vie (each, a "Related Person"), unless such transaction is in the
ordinary course of business, is approved by the Board and is on terms no less
favorable to Vie or such Subsidiary than those that could be obtained in a
comparable arm's length transaction with a Person that is not a Related Person.
(k) Prepayment. Not effect, or agree to effect, nor cause any of its
Subsidiaries to effect or agree to effect, any prepayment on any of the
Indebtedness of Vie or any of its Subsidiaries, except any prepayment of the RGC
Note.
(l) Downstream Merger. In the event of an issuance and sale of Stock
subsequent to the Closing Date, use its reasonable best efforts to ensure that
the participants in such subsequent financing shall consent to a merger of OII
with and into Vie, and pursuant to which the capital stock of OII shall be
converted into the number of shares of Common Stock held by OII immediately
before such merger, in the event that the Investors, in their sole discretion,
provide a written request to Vie to engage in a merger of OII with and into Vie.
(m) Reserved Preferred Stock. At all times reserve and keep
available for issuance, free from preemptive rights, out of its authorized but
unissued
shares of preferred stock, a sufficient number of shares of preferred stock to
issue the Investors' Preferred Stock pursuant to Section 3.5(e) in the event of
a Conversion.
ARTICLE 8.
EVENTS OF DEFAULT
Section 8.1 Events of Default; Acceleration and Remedies. Without regard to
previous knowledge or any forbearance by the Investors, the following shall be
defaults under this Loan Agreement and the terms "Event of Default", "default"
or "Default" shall mean any one or more of the following events:
(a) Payment Default. Vie shall (i) fail to pay or cause to be paid
when due any portion of any Obligation (other than Costs and Fees) or fail to
deliver or cause to be delivered when due any securities as required by Section
3.5 hereof, or (ii) fail to pay or cause to be paid Costs and Fees for ten (10)
days after such Costs and Fees shall be due; provided, however, in no event
shall Vie be required to pay any Costs and Fees without at least ten (10) days
notice prior to the due date for the applicable Cost or Fee.
(b) Breach of Other Covenants or Failure of any Condition. Vie
shall fail to perform, keep or observe any provision (other than a breach of the
preceding Sections 7.1(h), 7.1(i), 7.1(j), 7.1(k) or 7.1(m)) not involving a
payment obligation of this Loan Agreement, contained in this Loan Agreement and
any such failure shall remain unremedied for thirty (30) days after written
notification thereof shall have been given to Vie by the Investors.
(c) Breach of Representation or Warranty. Any representation or
warranty made by Vie under or in connection with any Transaction Document shall
prove to have been untrue or misleading when made in any material respect.
(d) Breach of Section 7.1(h), 7.1(i), 7.1(j), 7.1(k) or 7.1(m). Any
failure to comply with the preceding Section 7.1(h), 7.1(i), 7.1(j), 7.1(k) or
7.1(m) and such failure shall remain unremedied for five (5) days after written
notification thereof shall have been given to Vie by the Investors.
(e) Cross Default. A default or defaults under any Indebtedness by
Vie or any Subsidiary or under any mortgage(s), indenture(s) or instrument(s)
under which there may be issued or by which there may be secured or evidenced
any Indebtedness by Vie or any Subsidiary with a principal amount then
outstanding, individually or in the aggregate, in excess of $500,000, whether
such Indebtedness now exists or shall hereafter be created, which default with
the passing of time or the giving of notice, or both, shall give the holders of
such Indebtedness the right to declare any obligation with respect to such
Indebtedness due and payable prior to the date on which it would otherwise have
become due and payable.
(f) Bankruptcy, Insolvency, Reorganization, etc.
(i) The entry by a court having jurisdiction in the premises
of (1) a decree or order for relief in respect of Vie or any Subsidiary in an
involuntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (2) a decree or order
adjudging Vie or any Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of Vie or any Subsidiary under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of Vie or any Subsidiary or of
any substantial part of the property of Vie or any Subsidiary, or ordering the
winding up or liquidation of the affairs of Vie or any Subsidiary, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 30 consecutive days.
(ii) The commencement by Vie or any Subsidiary of a
voluntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the Consent by Vie or
any Subsidiary to the entry of a decree or order for relief in respect of Vie or
any Subsidiary in an involuntary case or proceeding under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against Vie or
any Subsidiary, or the filing by Vie or any such Subsidiary of a petition or
answer or Consent seeking reorganization or relief under any applicable federal
or state law, or the Consent by Vie or any Subsidiary to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of Vie or any
Subsidiary or of any substantial part of the property of Vie or any Subsidiary,
or the making by Vie or any Subsidiary of an assignment for the benefit of
creditors, or the admission by Vie or any Subsidiary in writing of its inability
to pay its debts generally as they become due, or the taking of corporate action
by Vie or any Subsidiary in furtherance of any such action.
(g) Judgments. Either (i) a judgment or order for the payment of
money in excess of Five Hundred Thousand Dollars ($500,000) or its equivalent in
another currency, or (ii) a temporary restraining order, preliminary or final
injunction, order of specific performance or similar judgment, order or decree
requiring Vie or any Subsidiary to take, or prohibiting them from taking, any
action, if such order, injunction, judgment or decree would be reasonably likely
to have a Material Adverse Effect, is entered against Vie, any of its
Subsidiaries or any of their respective assets, and such judgment, order,
injunction or decree is not discharged or appealed and stayed, and remains
unpaid, for a period of fifteen (15) days of entry or imposition thereof.
Upon any Event of Default, the Investors may terminate any of its
obligations hereunder or under any Transaction Document. With respect to any
Event of Default, subject to Article 9, (i) in any such event described in
Section 8.1(f), all Obligations shall automatically be due and payable without
notice or demand or any action whatsoever by the Investors; and (ii) in all
other Events of Default, the Investors
may, upon notice (in accordance with Section 10.1) to Vie, declare all
Obligations (or any part thereof), to be forthwith due and payable without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by Vie.
In addition, upon any Event of Default, the Investors may without
prior notice or demand, exercise any and all rights available to them under this
Loan Agreement and the Notes in equity or by applicable law. No action taken by
the Investors shall be deemed to be an election of remedies by the Investors, it
being the intent of the parties that the Investors shall be entitled repeatedly
to exercise all remedies separately or concurrently and in any manner allowed by
law.
ARTICLE 9.
SUBORDINATION
Section 9.1 Subordination.
(a) The Obligations of Vie pursuant to this Loan Agreement and
the Notes shall be subordinated in right of payment to the obligations of Vie
under the RGC Note and no payment will be made under this Loan Agreement and the
Notes, directly or indirectly, by redemption, purchase, prepayment or otherwise,
unless and until all obligations under the RGC Note as in effect on the date
hereof, and without giving effect to any extension, increase in principal amount
or other modification or amendment effected after the date hereof, are paid in
full.
(b) Each of the Investors hereby irrevocably agree that, if
any payment or payments are made pursuant to this Loan Agreement or the Notes
and the amount or total amount of such payment or payments exceeds the amount,
if any, that such Investor would be entitled to receive upon the proper
application of the subordination provisions set forth in this Section 9.1, the
payment of such excess amount shall be deemed null and void and such Investor
shall return the amount of such excess payment to Vie.
(c) Nothing contained in this Article 9 shall prevent,
restrict or restrain any Conversion effected pursuant to Section 3.5 except, and
only to the extent, that the Stock issued pursuant to such Conversion
constitutes Indebtedness that is not subordinate to the obligations under the
RGC Note to at least the extent provided by this Article 9.
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Notices, etc. All notices, requests, demands or other
communications which are required or may be given pursuant to the terms of this
Loan Agreement shall be in writing and shall be deemed to have been duly given:
(i) on the date of delivery if personally delivered by hand; (ii) upon the third
day after such notice is (1) deposited in the United States mail, if mailed by
registered or certified mail, postage prepaid, return receipt requested, or (2)
sent by a nationally recognized overnight express courier; or (iii) by facsimile
upon written confirmation (other than the automatic
confirmation that is received from the recipient's facsimile machine) of receipt
by the recipient of such notice:
If to the Investors: SOFTBANK Capital Partners LP
SOFTBANK Capital Advisors Fund LP
SOFTBANK Capital LP
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
and
Xxxxxx Xxxxxx Jurvetson ePlanet
Ventures X.X.
Xxxxxx Xxxxxx Jurvetson ePlanet Partners
Fund, LLC
Xxxxxx Xxxxxx Jurvetson ePlanet
Ventures GmbH & Co. KG
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Facsimile No.: (000) 000-0000
With a copy, which shall
not constitute notice, to: Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and
Simpson, Thacher & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Vie: Vie Financial Group, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy, which shall
not constitute notice, to: Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section 10.1.
Section 10.2 No Waiver; Remedies. No failure on the part of the
Investors to exercise, and no delay in exercising, any right under this any
Transaction Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under any of the aforesaid preclude any other or
further exercise thereof or the exercise of any other right from time to time
and as often as the Investors may deem expedient and without notice (except any
notice which is specifically required by written agreement). The remedies
provided in the Transaction Documents are cumulative and not exclusive of any
remedies provided by law or in equity, now or hereafter existing.
Section 10.3 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP except as otherwise
stated herein.
Section 10.4 Assignment. This Loan Agreement shall not be assignable
by Vie without the Investors' Consent. The Investors may assign to any of their
respective affiliates the obligation, subject to Vie's satisfaction of all
conditions precedent in Section 5.1 hereof, to make all or a portion of the Loan
on the Closing Date to Vie. In addition, following the Closing Date the
Investors may sell, transfer, assign, negotiate, pledge, or hypothecate all or
any portion of their rights under this Loan Agreement to any Person.
Section 10.5 Governing Law; Venue. The Transaction Documents shall be
deemed to have been made in New York and the validity of such documents, their
construction, interpretation and enforcement, shall be determined under,
governed by and construed in accordance with the laws of New York. In any court
proceeding, Vie agrees to submit to the jurisdiction of the state or federal
court selected by the Investors, and venue of any action concerning this any
Transaction Document shall be in the county of New York in the State of New
York. Vie hereby irrevocably waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of such
venue and any claim that any such forum is an inconvenient forum. Nothing in
this Section 10.5 shall impair the right of the Investors to bring any action or
proceeding against Vie or its property in the courts of any other county or
jurisdiction.
Section 10.6 Entire Agreement; Headings; Amendments; Severability;
Time; Fair Construction; Counterparts; Third Party Beneficiaries. The
Transaction Documents constitute the entire agreement between the parties
regarding the terms of this Loan and supersede any and all other agreements
relating to the subject matter of the Transaction Documents, oral or written,
among any or all of the parties. The headings of the various sections and
subsections of each of the Transaction Document are for convenience of reference
only and do not constitute a part of the respective document and shall not
affect the meaning or construction of any provision.
No amendment, waiver or forbearance of any provision of any
Transaction Document shall be effective unless the same shall be in a writing
signed by Investors holding Notes representing a majority of the principal
balance outstanding under this Loan Agreement. Any such waiver or forbearance
shall only be effective for the specific purpose and in the specific instance
given and not for other or subsequent purposes or instances and no forbearance
or waiver shall affect the Investors' right to refuse further forbearances or
waivers. If any portion any Transaction Document is held to be invalid or
unenforceable, the remaining portions and provisions and conditions thereof
shall remain in full force and effect.
Time is of the essence under each of the Transaction Documents.
Counsel for each party has participated in the review and revision of the
Transaction Documents and each party agrees that the rules of construction
requiring any ambiguities to be resolved against the drafting party shall not be
employed in the interpretation of the Transaction Documents. The signature pages
of each of the Transaction Document may be executed in counterparts.
Nothing in this Loan Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations or liabilities of any
nature whatsoever under or by reason of this Agreement, except as expressly
provided in this Loan Agreement.
Section 10.7 Non-Disclosure. Vie shall not disclose the existence of
the Loan or the Transaction Documents without the prior written approval of
SOFTBANK Capital Partners LP and Xxxxxx Xxxxxx Jurvetson ePlanet Ventures L.P.,
except to the extent that such disclosure is required to be made by Vie in order
to avoid violating the federal securities laws or in connection with any
judicial or administrative proceedings (by oral questions, interrogatories,
requests for information or documents, subpoena, civil investigation demand or
similar process). In the event that Vie or any of its representative or
affiliates is required to disclose any such information, to the extent legally
permissible and practicable, Vie shall provide the Investors with the proposed
form of disclosure and a reasonable amount of time in which to review and
comment on the proposed disclosure and shall cooperate with the Investors to the
extent that they may seek to limit or modify such disclosure; provided, however,
SOFTBANK Capital Partners
LP and Xxxxxx Xxxxxx Jurvetson ePlanet Ventures L.P. shall promptly provide Vie
with any comments and in no event shall SOFTBANK Capital Partners LP's or Xxxxxx
Xxxxxx Jurvetson ePlanet Ventures L.P.'s review delay Vie from making a timely
filing with the SEC.
Section 10.8 Confidentiality. Except as may be required to enforce
the rights and duties established hereunder, the parties hereto shall preserve
in a confidential manner all information received from the other pursuant to the
Transaction Documents, and shall not disclose such information except to those
Persons with which a confidential relationship is maintained (including
regulators, legal counsel, accountants, agents or an assignee or a prospective
assignee of any of the Investors' rights hereunder).
[Remainder of page intentionally left blank]
Executed and dated as of the date first set forth above.
VIE FINANCIAL GROUP, INC., SOFTBANK CAPITAL PARTNERS LP
a Delaware corporation SOFTBANK CAPITAL ADVISORS FUND LP
SOFTBANK CAPITAL LP
By ________________________ By: SOFTBANK CAPITAL PARTNERS LLC,
its General Partner
Its_________________________
By: __________________________________
Name:
Title:
XXXXXX XXXXXX JURVETSON
ePLANET VENTURES L.P.
By: __________________________________
Name:
Title:
XXXXXX XXXXXX JURVETSON
ePLANET PARTNERS FUND, LLC
By: __________________________________
Name:
Title:
XXXXXX XXXXXX JURVETSON
ePLANET VENTURES GMBH & CO. KG
By: __________________________________
Name:
Title:
DEFINITIONS ADDENDUM
This Definitions Addendum is an attachment to and part of that certain LOAN
AGREEMENT ("Loan Agreement") dated as of December 30, 2002 between Vie Financial
Group, Inc., SOFTBANK Capital Partners LP, SOFTBANK Capital Advisors Fund LP,
SOFTBANK Investors Capital LP, Xxxxxx Xxxxxx Jurvetson ePlanet Ventures L.P.,
Xxxxxx Xxxxxx Jurvetson ePlanet Partners Fund, LLC, and Xxxxxx Xxxxxx Jurvetson
ePlanet Ventures GmbH & Co. KG. Except as otherwise stated in this Loan
Agreement, the following terms shall have the following meanings:
"Additional Financing" has the meaning set forth in Section 3.5(a) of this
Loan Agreement.
"Applicable Conversion Price" has the meaning set forth in Section
3.5(d)(i) of this Loan Agreement.
"Arising Out Of" means directly or indirectly arising out of, relating in
any manner to, arising in connection with, growing out of or stemming from, or
in any manner caused by or resulting from, whether by action or inaction and
whether such action or inaction be culpable and whether such action be in
contract, tort or otherwise.
"Board" means the board of directors of Vie.
"Business Day" means any day other than (i) a Saturday or Sunday or (ii) a
day on which commercial banks in New York City are authorized or required by law
or executive order to close.
"Capital Lease Obligations" means, with respect to any Person, the
obligation of such Person to pay rent or other amounts under any lease with
respect to any property (whether real, personal or mixed) acquired or leased by
such Person that is required to be accounted for under GAAP as a liability on a
consolidated balance sheet of such Person.
"Claim" or "Claims" means any and all administrative, legal or other
actions, claims, suits, appeals, settlements, consent decrees, or
investigations.
"Closing" or "Closing Date" shall mean the last to occur of: (a) the date
the Transaction Documents are executed and delivered to the Investors and (b)
the date all conditions precedent contained in Section 5.1 of this Loan
Agreement are satisfied.
"Common Stock" means the common stock, par value $0.01 per share, of Vie.
"Company Reports" has the meaning set forth in Section 6.1(h) of this Loan
Agreement.
"Consent" means a written document containing the approval of and executed
by the Person to be bound by the document.
"Contractual Obligation" means, with respect to any Person, each provision
of each Transaction Document, and all provisions of all other agreements,
contracts, instrument and undertakings to which such Person is a party or by
which it or any Conversion of its property is bound.
"Conversion" has the meaning set forth in Section 3.5(e)(i) of this Loan
Agreement.
"Costs and Fees" means all reasonable out-of-pocket or incurred costs
(including without limitation those incurred by the following persons) and
expenses of every nature, including, without limitation, reasonable attorneys'
fees for outside counsel, whether incurred before trial, at trial, or on appeal
and including any such costs and expenses incurred in any bankruptcy or
arbitration proceeding), reasonable fees of paralegals, clerks, accountants and
other consultants or experts, and of collection and other agents, and all other
reasonable fees, costs and expenses of every nature whatsoever now or hereafter
incurred from time to time.
"Default" or "Event of Default" has the meaning set forth in Section 8.1 of
this Loan Agreement.
"Default Rate" has the meaning set forth in Section 4.2 of this Loan
Agreement.
"Xxxxxx Xxxxxx" has the meaning set forth in the preamble of this Loan
Agreement, and any of its successors or assigns.
"Effective Date" has the meaning set forth in the preamble of this Loan
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as it may be
amended, and any successor act thereto.
"Final Conversion" has the meaning set forth in Section 3.5(b) of this Loan
Agreement.
"GAAP" or "Generally Accepted Accounting Principles" means generally
accepted accounting principles as in effect from time to time in the United
States.
"Governmental Body" means any foreign or domestic government; court;
federal, state, county, municipal or other department, commission, board,
bureau, agency, administrator, public authority or instrumentality; arbitrator;
mediator; or other governmental regulator or authority.
"Indebtedness" means, with respect to any Person, (i) all obligations of
such Person for borrowed money or for the deferred purchase price of property or
services (including all obligations, contingent or otherwise, of such Person in
connection with letters of credit, bankers' acceptances, Interest Rate
Protection Agreement or other similar instruments, including currency swaps)
other than indebtedness to trade creditors and service providers incurred in the
ordinary course of business and payable on usual and customary terms, (ii) all
obligations or such Person evidenced by bonds, notes, debentures or other
similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the remedies available to the seller or
lender under such agreement are limited to repossession or sale of such
property), (iv) all Capital Lease Obligations of such Person, (v) all
obligations of the types described in clauses (i), (ii), (iii) or (iv) above
secured by (or for which the obligee has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in any property owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness, (vi) all preferred stock issued by such Person which is
redeemable, prior to full satisfaction of Vie's obligations under this Loan
Agreement and the Notes, other than at the option of such Person, (vii) all
Indebtedness of others subject to a Third Party Guaranty by such Person and
(viii) all Indebtedness of any partnership of which such Person is a general
partner.
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or similar hedging arrangement used by a
Person to fix or cap a floating rate of interest on Indebtedness to a negotiated
maximum rate or amount.
"Investor" or "Investors" has the meaning set forth in the preamble of this
Loan Agreement.
"Investors' Preferred Stock" has the meaning set forth in Section
3.5(e)(ii)(2) in this Loan Agreement.
"Liability" or "Liabilities" means any liability (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Lien" or "Liens" means, with respect to any Person, any security interest,
pledge, mortgage, charge, option, assignment, hypothecation, encumbrance,
attachment, garnishment, sequestration, forfeiture, execution or other voluntary
or involuntary lien upon or affecting the revenues of such Person or any real or
personal property in which such Person has or hereafter acquires any interest,
except (i) Liens for Taxes which are not delinquent or which remain payable
without penalty or the validity or amount of which is being contested in good
faith by appropriate proceedings Consented to by the Investors; (ii) Liens
imposed by law (including, without limitation, materialman's, mechanic's,
carrier's, workmen's and repairmen's liens) incurred in good faith in the
ordinary course of business which are not delinquent by more than sixty (60)
days or which are being contested in good faith by appropriate proceedings; and
(iii) deposits or pledges under workmen's compensation, unemployment insurance,
social security, bids, tenders, contracts (except for repayment of borrowed
money), or leases, or to secure statutory obligations or surety or appeal bonds
or to secure indemnity, performance or other similar bonds given in the ordinary
course of business.
"Loan" or "Loans" means the loan from the Investors to Vie in the original
aggregate principal amount of $2,400,000 made pursuant to this Loan Agreement
and as the Loan may be extended, modified or renewed from time to time.
"Loan Agreement" means this Loan Agreement, as the same may be amended,
extended or renewed from time to time.
"Loss" or "Losses" means any and all Costs and Fees, losses, liabilities,
deficiencies, obligations, damages and other expenses of every nature, including
without limitation interest and penalties.
"Material Adverse Effect" means a material adverse effect upon the
business, financial condition, results of operations, property, assets or
prospects of Vie or any of the Subsidiaries, or upon the ability of Vie to
consummate the transactions contemplated by, or perform its obligations under
this Loan Agreement and the Transaction Documents.
"Maturity Date" has the meaning set forth in Section 3.1 of this Loan
Agreement.
"Note" or "Notes" means any and all of the promissory notes in
substantially the form attached as Exhibit A, as extended, renewed or amended
from time to time.
"OII" has the meaning set forth in Section 2.1 of this Loan Agreement.
"Obligations" means all obligations for principal or interest on the Notes,
all Costs and Fees, all indemnification obligations and all other amounts of
every nature whatsoever due or to become due the Investors under the Transaction
Documents.
"Optional Conversion" has the meaning set forth in Section 3.5(a) of this
Loan Agreement.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or any other entity or organization, including a
state, government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means the Series B Preferred Stock, par value $0.01 per
share, of Vie.
"Principal Amount" has the meaning set forth in Section 2.1 of this Loan
Agreement.
"Related Person" has the meaning set forth in Section 7.1(j) of this Loan
Agreement.
"Requirement of Law" or "Requirements of Law" means, with respect to any
Person, the now or hereafter existing articles or certificate of incorporation
and bylaws, the partnership or limited liability company agreement or other
organizational or governing documents of such Person, and any law, treaty, rule,
order, judgment, decree, injunction, writ, or regulation, or a final and binding
determination of an arbitrator, mediator, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"RGC Note" means the 7.5% Senior Secured Promissory Note, dated May 3, 2002
(as in effect of the date hereof, the "RGC Note"), issued by Vie to RGC
International Investors, LDC.
"SEC" means the Securities and Exchange Commission, or any Governmental
Body succeeding to any or all of the functions of said Commission.
"Securities" means the Notes, the Stock issuable by Vie upon conversion of
the Notes as provided in Section 3.5, the Investors' Preferred Stock, the Common
Stock issuable by Vie upon conversion of the Investors' Preferred Stock, the
Warrants and the Stock issuable by Vie upon exercise of the Warrants.
"Securities Act" means the Securities Act of 1933, as it may be amended,
and any successor act thereto.
"Softbank" has the meaning set forth in the preamble of this Loan
Agreement, and any of its successors or assigns.
"Stock" means any equity security of Vie, including, without limitation,
the Common Stock and Preferred Stock.
"Subordinated Indebtedness" means Indebtedness of Vie as to which the
payment of principal of (and premium, if any) and interest and other payment
obligations in respect of such Indebtedness shall be subordinate to the prior
payment in full of the Obligations to at least the following extent: (i) no
payments of principal of (or premium, if any) or interest on or otherwise due in
respect of such Indebtedness may be permitted for so long as any default in the
payment of principal or interest on the Loan exists; (ii) in the event that any
other default that with the passing of time or the giving of notice, or both,
would constitute an Event of Default exists with respect to the Loan, no
payments of principal of (or premium, if any) or interest on or otherwise due in
respect of such Indebtedness may be made; and (iii) such Indebtedness may not
(x) provide for payments of principal of such Indebtedness at the stated
maturity thereof or by way of a sinking fund applicable thereto or by way of any
mandatory redemption, defeasance, retirement or repurchase thereof by Vie
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances, and including any retirement required by virtue of
acceleration of such Indebtedness upon an event of default thereunder), in each
case prior to May 5, 2006, or (y) permit redemption or other retirement
(including
pursuant to an offer to purchase made by Vie) of such other Indebtedness at the
option of the holder thereof prior to May 5, 2006.
"Subsidiary" or "Subsidiaries" means any or all of Vie Institutional
Services, Inc. (formerly Croix Securities, Inc.) a Delaware corporation, Vie
Securities, LLC (formerly ATG Trading, LLC), a Delaware limited liability
company, and any other direct or indirect subsidiary of Vie.
"Taxes" means for any Person any federal or state tax, assessment, duty,
levy, withholding liability, impost and other charges of every nature whatsoever
imposed by any Governmental Body on such Person or on any of its property or
because of any, revenue, income, sales, use, product, employee or franchise, and
any interest or penalty with respect to any of the foregoing.
"10-K" has the meaning set forth in Section 5.1(h) of this Loan Agreement.
"10-Q" has the meaning set forth in Section 5.1(h) of this Loan Agreement.
"Third Party Guaranty" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness of (iii) to maintain working
capital, equity capital or the financial condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness.
"Transaction Documents" means this Loan Agreement, the Notes, the Warrants
and the Certificate executed pursuant to Section 5.1(b).
"Vie" means Vie Financial Group, Inc., a Delaware corporation.
"Warrant" or "Warrants" means any and all of the warrants in substantially
the form attached as Exhibit D.
