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EXHIBIT 10.16
LOAN AGREEMENT
LOAN AGREEMENT dated as of September 21, 1999 entered into by and
between Security First Technologies Corporation, a Delaware corporation
("Lender"), and FICS Group N.V., a Belgian corporation ("Borrower").
WHEREAS, Lender has entered into a Stock Purchase Agreement II, dated
as of the date hereof (the "Purchase Agreement"), with the individuals and
entities who are signatories thereto, and as may be joined by other individuals
and entities from time to time (each a "Purchaser" and collectively,
"Purchasers") and Borrower for the limited purposes set forth therein, pursuant
to which such Purchasers have agreed to purchase certain shares of Lender;
WHEREAS, Borrower has requested that Lender make available to Borrower
a line of credit in the amount of up to $15,000,000 to finance Borrower's
working capital needs; and
WHEREAS, Lender is willing to do so on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower and Lender
agree as follows.
1. CERTAIN DEFINITIONS. As used herein the terms set forth below shall
have the meanings indicated:
"Commitment Period" means the period beginning on the date of this
Agreement and ending on the earlier to occur of: (i) September 26, 2000 or (ii)
the date of the closing of an initial public offering of the common stock of
Borrower on the Nasdaq National Market, EASDAQ or any other established
securities exchange.
"Event of Default" means any one or more of the following events:
(a) failure by Borrower to pay any principal, interest or
other amount due hereunder or on account of the Loan, within 15 days of
the date when due;
(b) failure by Borrower to perform or discharge, observe or
comply with any of its covenants or agreements set forth herein or in
the Note and such failure shall continue unremedied for a period of 15
days after written notice thereof by Lender to Borrower;
(c) any representation or warranty of Borrower to Lender set
forth herein is found to have been false or misleading in any material
respect as of the time when made;
(d) Borrower's liquidation, termination, dissolution or
ceasing to carry on any substantial part of its current business;
(e) provided that the Purchase Agreement has then been
terminated, a change in control with respect to Borrower or
consummation by Borrower of a reorganization, merger or consolidation
with any other person or entity, transfer of all or substantially all
of its assets or properties or consummation of any other plan or
arrangement involving a similar extraordinary corporate transaction.
(f) commencement by Borrower of a voluntary proceeding seeking
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law, or seeking appointment of a trustee,
receiver, liquidator or other similar official for it or any
substantial
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part of its assets; or its consent to any of the foregoing in an
involuntary proceeding against it; or Borrower shall generally not be
paying its debts as they become due or admit in writing its inability
to do so; or an assignment for the benefit of, or the offering to or
entering into by Borrower of any composition, extension, reorganization
or other agreement or arrangement with, its creditors; or
(g) commencement of an involuntary proceeding against Borrower
seeking relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law, or seeking appointment of a trustee,
receiver, liquidator or other similar official for it or any
substantial part of its assets, which proceeding is not dismissed or
stayed within 60 days.
"Note" means the note executed and delivered by Borrower to Lender in
the form of Exhibit A hereto, made to evidence the Loan.
"Loan" has the meaning given in Section 2(a) hereof.
2. THE LOAN.
(a) On the date of this Agreement, Lender is making an advance to
Borrower in the amount of $6,000,000 pursuant to a Note substantially in the
form of Exhibit A hereto. Not later than thirty (30) days after the date of this
Agreement, Lender shall make an additional advance to Borrower in the amount of
$2,000,000. Not later than five (5) business days following its receipt of
Borrower's written notice therefor, Lender shall make additional advances to
Borrower in an amount specified in such written notice; provided that such
additional advances shall not exceed $1,000,000 in any calendar month or,
together with the $6,000,000 advance made on the date of this Agreement and the
$2,000,000 advance made not later than 30 days after the date of this Agreement,
$15,000,000 in the aggregate during the Commitment Period (such advances are
referred to herein collectively as the "Loan"). Borrower may re-borrow under the
Loan at any time during the Commitment Period notwithstanding any full or
partial repayment of the Loan by Borrower.
(b) The Loan shall be evidenced by a Note in the form of Exhibit A
hereto and shall be a general unsecured obligation of Borrower. The Loan shall
be due and payable and shall bear interest at the Default Rate of Interest and
bear other consequences as set forth in the Note.
(c) Lender shall make the Loan available to Borrower by wire transfer
or otherwise as Borrower requests in its notices to advance the Loan (provided
that Borrower shall reimburse Lender for any administrative expense (wire
transfer fees and the like) incurred by Lender in connection with such advance
methods, except for an advance by bank or certified check).
3. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants to Lender that:
(a) Organization and Qualification. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all required corporate power and
authority to own its property, to carry on its business as presently conducted
and to carry out the transactions contemplated hereby.
(b) Authorization of Transaction. The execution, delivery and
performance of this Agreement and the Note have been duly authorized by all
necessary corporate or other action of Borrower. This Agreement and the Note
each represents a valid and binding obligation of Borrower, enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors.
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(c) Approvals; Compliance With Laws. The execution, delivery and
performance of this Agreement and the Note and the transactions contemplated
thereby (i) do not require any approval or consent of, or filing with, any
governmental agency or authority or otherwise which has not been obtained and
which is not in full force and effect as of the date hereof, (ii) will not
conflict with or constitute a breach or violation of the Restated Articles of
Association (Statuten) of Borrower, and (iii) will not result in a violation of
or any law or regulation to which it is subject.
4. BORROWER'S AGREEMENTS. Borrower agrees as follows:
(a) Borrower will notify Lender, at least 30 days prior to any such
event, of any change in Borrower's exact legal name or any change in its
principal place of business or location as set forth in Section 7 of this
Agreement.
(b) During the Commitment Period, Borrower will deliver to Lender, with
reasonable promptness, (i) such financial statements and other information as
Borrower regularly provides to any other lender to Borrower, and (ii) such other
financial data related to the business, affairs and financial condition of
Borrower as is available to Borrower and as from time to time Lender may
reasonably request; provided that Lender acknowledges that its receipt of any
such information from Borrower shall be subject to customary confidentiality and
non-disclosure provisions which Lender shall have agreed to in writing prior to
receipt of such information.
(c) Borrower shall incur no indebtedness that ranks senior in payment
to the indebtedness evidenced by the Note.
5. EVENTS OF DEFAULT; REMEDIES. Upon the occurrence and during the
continuance of an Event of Default (as defined in Section 1 above), (a) Borrower
shall have no further right to request advances under the Loan, and (b) the Loan
shall bear interest at the Default Rate of Interest, as defined in the Note.
6. EXPENSES. Borrower agrees to pay Lender on demand any and all
reasonable out-of-pocket costs and expenses of any nature (including without
limitation reasonable attorneys' fees and disbursements) which may be incurred
by Lender in connection with exercise of Lender's rights under this Note against
the Borrower after an Event of Default; any enforcement, collection or other
proceedings with respect to the Loan; or any bankruptcy, insolvency or other
similar proceedings of the Borrower.
6. CONDITIONS PRECEDENT.
Borrower acknowledges and agrees that Lender will not make advances
under the Loan, nor will Lender entertain any request from Borrower for advances
under the Loan, unless and until all of the following conditions have been
satisfied and remain satisfied as of the date of funding the Loan:
(a) Representations and Warranties. Borrower's representations and
warranties contained herein shall be correct and complete in all material
respects;
(b) Covenants. Borrower shall be in compliance in all material respects
with all covenants and agreements contained herein;
(c) No Events of Default. There shall exist no Event of Default or any
event which, with the passage of time or the giving of notice or both, would
constitute an Event of Default; and
(d) Delivery of Note. Borrower shall have delivered, or caused to be
delivered, to Lender the Note.
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7. MISCELLANEOUS PROVISIONS.
(a) Notices. Unless otherwise specified herein, all notices hereunder
shall be in writing directed to the addresses indicated below, and such notices
shall be effective and be deemed received on the day when delivered by hand or
by facsimile transmission; on the next business day, if by commercial overnight
courier; and on the third business day, if by registered or certified mail,
postage prepaid:
If to Lender, to:
Security First Technologies Corporation
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Chief Financial Officer
with copies (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
and
Xxxxx & Xxxxxxx, L.L.P.
Xxxxxx xxx Xxxx 00
0000 Xxxxxxxx, Xxxxxxx
Attn: Xxxxx v.S. Xxxx, Esq.
If to Borrower, to:
FICS Group X.X.
Xxxxxxxxxxxxx 00
0000 Xxxxxxxx, Xxxxxxx
Attn: Xxxxxx Xxxxxxxx, Chief Financial Officer
with a copy (which shall not constitute notice) to:
Xxxxx Xxxxxxx Xxxxx & Gesmer
Stanmore House
00-00 Xx. Xxxxx'x Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Attn: Xxxxxxxx X. Xxxx, Esq.
Colin Xxxx Xxxxxxx, Esq.
(b) No Waiver. No failure to exercise and no delay in exercising, on
the part of Lender, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right or remedy. Waiver by
Lender of any right or remedy on any one occasion shall not be construed as a
bar to or waiver thereof or of any other right or remedy on any future occasion.
Lender's rights and remedies hereunder, under any agreement or instrument
supplemental hereto or under any other
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agreement or instrument shall be cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
(c) Assignment. This Agreement shall be binding upon and shall inure to
the benefit of Borrower and Lender and their respective successors and assigns;
provided that Borrower may not assign or transfer any rights or obligations
hereunder without Lender's prior written consent.
(d) Governing Law; Jurisdiction. This Agreement shall be governed by
the laws of the State of Delaware (other than its laws relating to conflicts of
laws).
(e) Currency. All amounts set forth herein shall be denominated in
currency of the United States of America.
[SIGNATURE PAGE FOLLOWS]
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Duly executed as of the date set forth above.
FICS GROUP N.V.
By: /s/
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Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
SECURITY FIRST TECHNOLOGIES CORPORATION
By: /s/
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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EXHIBIT A
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PROMISSORY NOTE
$15,000,000.00 Atlanta, Georgia
September 21, 1999
FOR VALUE RECEIVED, FICS Group N.V., a Belgian corporation ("Maker"),
hereby promises to pay to the order of Security First Technologies Corporation,
a Delaware corporation, at its place of business at 0000 Xxxxxxxxx Xxxx, XX,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 ("Lender"), the sum of FIFTEEN MILLION
DOLLARS ($15,000,000.00), or so much as may have been advanced to Maker as
provided in that certain Loan Agreement (the "Loan Agreement") dated as of the
date hereof between Maker and Lender, together with interest on the unpaid
principal amount from time to time outstanding prior to demand at a fixed rate
per annum equal to one-half percent (1/2%) over LIBOR (as defined below) as in
effect from time to time hereunder. All capitalized terms not otherwise defined
in this Note shall have the meanings provided in the Loan Agreement.
1. Payment. Other than as set forth in paragraph 3 hereof, all
outstanding principal and interest shall be due and payable in full 10 business
days immediately following expiration of the Commitment Period. All amounts due
under this Note are subject to prepayment in full or in part at any time without
premium or penalty.
After the occurrence and during the continuance of an Event of Default,
principal outstanding hereunder shall bear interest at a fixed rate equal to the
sum of LIBOR as then in effect plus two percent (2%) per annum (the "Default
Rate of Interest").
2. Interest. Interest and fees shall be calculated on the basis of a
360-day year times the actual number of days elapsed. "LIBOR," as used herein,
shall mean for any day the "London Interbank Offered Rate" for obligations of
one year published in The Wall Street Journal Europe under the heading "Money
Rates" on such day (or on the next day on which The Wall Street Journal Europe
is published). In no event shall interest payable hereunder exceed the highest
rate permitted by applicable law. To the extent any interest received by Lender
exceeds the maximum amount permitted, such payment shall be credited to
principal, and any excess remaining after full payment of principal shall be
refunded to Maker.
3. Forgiveness of Loan upon Lender Default. Reference is made to (i)
the certain Share Purchase Agreement II, dated the date hereof (the "BelCo
Purchase Agreement"), by and among S1 Europe Holdings N.V., a Belgian
corporation and a subsidiary of Lender ("S1 Europe"), the stockholders of Maker
who are signatories thereto, and as may be joined by other stockholders from
time to time, and for the limited purposes stated therein, Lender and Maker, and
(ii) the certain Stock Purchase Agreement II, dated the date hereof (the "Lender
Purchase Agreement"), by and among Lender, the individuals and entities who are
signatories thereto, and as may be joined by other individuals and entities from
time to time, and Maker for the limited purposes stated therein. In the event
that either (i) the BelCo Purchase Agreement is terminated pursuant to Section
8.1(e) thereof by any of the Sellers (as defined therein) (as a result of the
willful or intentional breach on the part of S1 Europe of a representation,
warranty, covenant or other agreement) or (ii) the Lender Purchase Agreement is
terminated pursuant to Section 9.2 thereof by any of the Purchasers (as defined
therein) (as a result of any willful or intentional breach on the part of Lender
of a representation, warranty, covenant or other agreement), all amounts due and
outstanding under this Note shall be immediately and automatically forgiven and
this Note shall be of no further effect. Lender and Maker agree that the
provisions of this paragraph 3 are not intended to constitute liquidated damages
and shall not preclude the assertion of any other rights or the seeking of any
other remedies, whether at law or in equity, by any party hereto.
4. Payment in Kind. If the BelCo Purchase Agreement or the Lender
Purchase Agreement are terminated for any reason, Maker may, at its choice, pay
any or all of the obligations due and
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payable under this Note in cash or in shares of its common stock. In the event
Maker elects to pay in shares of its common stock, the number of shares to be
tendered by the Maker in satisfaction of such obligations shall equal (x) the
amount of its outstanding obligations hereunder so being paid divided by (y)
$2,438.54 (the "Exchange Ratio"). Notwithstanding the foregoing, in the event
that (i) either the BelCo Purchase Agreement or the Lender Purchase Agreement is
terminated by any party thereto for any reason other than a default or breach
thereof by Lender or a subsidiary of Lender; and (ii) FICS, or any successor,
subsidiary or controlling entity thereof, raises equity capital (or debt
convertible into equity) within one year from the date of such termination at a
lower valuation per share of "FICS Securities" (or any successor securities
thereto) than reflected by the "Initial Payment" (as such terms in quotes are
defined in the BelCo Purchase Agreement), then the Exchange Ratio shall be
adjusted for such lower valuation on a retroactive basis, and the Lender shall
be entitled to additional shares of FICS Securities (or any successor securities
thereto) consistent with such adjustment. Such shares, when issued, will be duly
authorized, validly issued, fully paid and non-assessable, and free of any liens
or encumbrances, and will be issued in compliance with all applicable laws.
5. Waiver of Presentment. Maker and all guarantors and endorsers hereby
waive presentment, demand, notice, protest, and all other demands and notices in
connection with the delivery, acceptance, performance and enforcement of this
Note, and assent to extensions of the time of payment or forbearance or other
indulgence without notice. No delay or omission of Lender in exercising any
right or remedy hereunder shall constitute a waiver of any such right or remedy.
Acceptance by Lender of any payment after demand shall not be deemed a waiver of
such demand. A waiver on one occasion shall not operate as a bar to or waiver of
any such right or remedy on any future occasion.
6. Currency. All amounts set forth herein shall be payable in currency
of the United States of America.
[signature page follows]
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Duly executed as of the date set forth above.
FICS GROUP N.V.
By:
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Name:
Title:
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