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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 Draper
Fisher Jurvetson
ePlanet Ventures L.P., a Cayman Islands limited partnership,
Draper Fisher
Jurvetson ePlanet Partners Fund, LLC, a California limited
liability company,
and Draper Fisher Jurvetson ePlanet Ventures GmbH & Co. KG,
a German partnership
(each, an Investor, collectively, "Draper Fisher", 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
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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
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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.
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(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
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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:
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(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:
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(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.
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(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
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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:
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(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.
<PAGE>
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
<PAGE>
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
<PAGE>
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, cons
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