Exhibit 10.1 Convertible Loan Agreement dated as of July 11,
2002 by and between the Registrant and First
Venture Capital Limited.
________________________________________________________
____________
CONVERTIBLE LOAN AGREEMENT
Between
FIRST VENTURE CAPITAL LIMITED
and
JAVIEN, INC.
Dated as of July 11, 2002
________________________________________________________
____________
WARNING: THIS AGREEMENT IS TO BE REVIEWED ONLY BY THE
INTENDED ADDRESSEE WHO HAS CONFIRMED TO THE COMPANY THAT
HE IS AN EXPERIENCED INVESTOR IN UNLISTED SECURITIES OF
THIS TYPE.
This CONVERTIBLE LOAN AGREEMENT (the "Agreement") is
effective as of date of the last signature, between First
Venture Capital Limited, a company incorporated under the
laws of the England & Wales with its registered office at
[Intentionally deleted] (the "Lender") and Javien, Inc., a
company incorporated under the laws of Delaware, with its
registered office at ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, New York, 10020 (the "Borrower" or the "Company").
W I T N E S S E T H :
WHEREAS, the Company seeks financing in order to
develop its business;
AND WHEREAS, the Lender wishes to provide such
financing to the Company on the terms and conditions
contained in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants
and agreements herein contained, and for other good and
valuable consideration, the receipt and adequacy of which
are acknowledged by each of the parties hereto, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTIONS
1.1 Defined Terms. Capitalized terms used in this Agreement
and not otherwise defined herein shall have the
meanings set forth in Annex 1 to this Agreement.
1.2 Sections and Headings. The division of this Agreement
into Sections and the insertion of headings are for the
convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The
terms "this Agreement", "hereof", "pursuant hereto" and
similar expressions refer to this Agreement and not to
any particular Section or other portion hereof and
include any agreement or instrument supplemental or
ancillary hereto. Unless something in the subject
matter or context is inconsistent therewith, references
herein to Sections are to Sections of this Agreement.
1.3 Number. Words importing the singular number only
shall include the plural and vice versa, words
importing the masculine gender shall include
individuals, partnerships, associations, trusts,
unincorporated organizations and companies and vice
versa.
ARTICLE II
LOAN PROVISION
2.1 Amount and Purpose of Loan. Lender agrees that it will
provide to the Company, in accordance with the terms
set out herein below, a loan in the aggregate principal
amount of US$ 450,000 (the "Loan"). Proceeds of the
Loan shall be solely used to develop and improve the
Company's business and marketing of the Company. The
Loan shall be drawn down in installments of not less
than US$ 10,000 and not exceeding the amount of US$
100,000, within ten (10) Business Days from a receipt
of a written request from the Company.
2.2 Interest. Simple interest at a rate of 6.5% shall
accrue on the outstanding amount of the Loan, which
interest shall accrue from the date of the Loan (or any
part thereof) is received by the Company (the
"Interest"). Accrued Interest shall be computed on the
basis of a 360-day year and actual days elapsed and be
payable on the Maturity Date, as defined in Annex 1.
In the event of an Event of Default, a default interest
rate of 4% above the applicable Interest rates for each
of the relevant periods referenced above shall accrue
from the date of such event, on the principal of the
Loan and Interest accrued at the date of such event,
and shall be computed as the simple interest rate
above.
2.3 Repayment. In the event that the Loan has not been
converted pursuant to Section 2.5 below, the Company
shall repay the principal of the Loan in US$ to the
Lender or, if the Lender so directs, to its designee,
in full on, at the latest (the "Maturity Date").
Notwithstanding the foregoing, in the event that the
Lender elects not to convert all or part of the Loan
pursuant to Section 2.5 below, the Lender may, at any
time before the expiration of the Conversion Period, as
defined below, demand repayment by the Company of the
outstanding principal of the Loan, together with
Interest accrued thereon. In such event, the Company
shall be obliged to repay the Loan together with
accrued Interest no later than ninety (90) Business
Days following receipt of written notification by the
Lender of such demand for repayment.
2.4 Prepayment. The Company shall be entitled to prepay
the Loan together with any Interest accrued thereon
before it becomes repayable under the terms of this
Agreement.
2.5 Conversion. The Lender may during the term hereof (the
"Conversion Period"), at its sole discretion, elect to
convert all or a part of the outstanding principal of
its Loan plus accrued Interest determined as of the
date of conversion (the "Conversion Amount"), subject
to a minimum Conversion Amount of not less than US$
10,000 at any one time, into Shares of the Company
based on delivery of a written notice to the Company
(the "Conversion Notice").
2.6 Conversion Notice. Should the Lender decide to convert
under Section 2.5 above, on or before the expiry of the
Conversion Period, the Lender shall deliver to the
Company the Conversion Notice informing the Company of
the Conversion Amount.
2.7 Conversion Ratio. The number of Shares of the Company
to be held by the Lender immediately following such
conversion shall be determined as follows:
The Lender has the right to acquire one (1) Common
Share of the Company for each US$ 0.10 of the Loan and/or
any Interest accrued thereon that the Lender chooses to
convert, subject to the minimum Conversion Amount of not
less than US$ 10,000 set forth in Section 2.5, above.
2.8 Common Shares Restricted. Issuance of the Common
Shares by the Company to the Lender shall be subject to an
exemption from registration pursuant to the United States
Securities and Exchange Acts of 1933 and 1934 and resale of
the shares shall be restricted, subject to the rules and
regulations promulgated under those Acts.
ARTICLE III
COVENANTS AND UNDERTAKINGS
3.1 Proceeds of Loan. The Company covenants with the Lender
to use the proceeds of the Loan only for improvement
and development of its business and marketing of the
Company and that of its Group Companies and any other
business which is duly approved by the Board of
Directors of the Company and consistent with the
Company's business plan.
3.2 Information. The Lender acknowledges and the Company
represents that Javien, Inc., is a company reporting
with the United States Securities and Exchange
Commission and that the Company is subject to the
disclosure requirements as required by the regulations
of the Commission. The Company is current with its
reporting obligations and has filed all documents and
financial statements relating to its operations thereby
enabling the lender to have full disclosure of the
Company's financial statements and operations. So long
as the Lender continues to be a lender of the Company
or Shareholder in the Company following conversion of
its Loan described in Section 2.5 above (the
"Participation Period"), it shall have access to and
shall receive:
(a) audited financial statements (including a balance
sheet, income statement and cash flow statement)
within ninety (90) days after the end of each
financial year;
(b) unaudited financial statements (including a
balance sheet, including income statement and cash
flow statement) within forty five (45) days from
the end of each quarter;
(c) a monthly management report containing information
in a form agreed on by the Company and the Lender
within twenty (20) days from the end of each
month; and
(d) an annual operating plan and budget, at least
thirty (30) days prior to the first day of the
calendar year covered by such plan.
3.3 Senior Debt. The Loan shall be treated as Senior Debt
of the Company and shall rank, pari passu, with all
other Senior Debt (a list of all outstanding Senior
Debt will be provided by the Company to the Lender
prior to signing of this Agreement and the Company
undertakes to promptly inform the Lender of any further
Senior Debt incurred, as permitted in accordance with
Section 3.5 of this Agreement). The term "Senior Debt"
as used in this Agreement shall mean all liabilities of
the Company for borrowed money from any individual or
entity, providing one or more convertible loans to the
Company on terms which may be similar to the terms of
this Agreement. For the avoidance of doubt, the Lender
agrees that all outstanding convertible loans entered
into by the Company as of the date of this Agreement
constitute Senior Debt.
3.4 Negative Pledge. The Company hereby agrees not to, and
not to allow its Group Companies to, create, incur,
assume or suffer to exist any material charge, lien or
encumbrance over any of its property, tangible or
intangible assets or revenues, after the date of this
Agreement as a result of any loan or further borrowing
by the Company or any of its Group Companies, except
with respect to any borrowing permitted by Section 3.5
hereof, but any such borrowing shall not permit the
lender(s) thereof to rank senior to the Lender with
respect to the repayment of such amounts, unless agreed
to by the Lender.
3.5 Borrowing. The Company hereby agrees not to enter into
any agreement or facility for the provision of further
borrowing to the Company, other than working
capital/overdraft facilities needed by the Company in
its ordinary course of business up to a maximum of US$
150,000, as well as convertible debt up to a maximum of
US$ 500,000, unless approved in advance by the Lender
in writing.
3.6 Sale of Assets. The Company hereby undertakes not to
sell or transfer the whole or a material part of its
assets, or agree to its Group Companies selling the
whole or a material part of their assets, except on
arm's length terms and in the event of such sale,
unless rights of conversion are exercised under Section
2.5 above, the monies from the sale must first be used
to repay the Loan and all accrued Interest, unless
waived, in writing, by the Lender. The Company shall
ensure that, in the event of any sale under this clause
, any sale proceeds shall be sufficient to repay the
loan and any outstanding interest accrued thereon.
3.7 Sale of Shares in Group Companies. The Company hereby
undertakes not to sell a Controlling Interest in any of its
Group Companies, except with the prior written approval of
the Lender. For the purposes of this clause "Controlling
Interest") shall mean any holding of more than 50% of the
voting rights of any Group Company.
3.8 Material Adverse Change. The Company hereby undertakes
to disclose to the Lender, without delay, any material
adverse change in the markets, products, operations,
facilities or personnel of itself or any Group Company,
which may reasonably be expected to affect the ability
of the Company to repay the Lender.
3.9 Observer Status at Board Meetings. The Company
undertakes to provide at least 5 Business Days' advance
written notification to the Lender of any shareholder
meetings and board of director meetings of the Company
and its Group Companies. Lender shall be entitled to
send an observer to attend any such meetings and Lender
shall be obliged to notify the Company in writing of
the identity of such observer in advance of any such
meeting. Any observer attending a meeting on behalf of
the Lender shall not be entitled to participate in any
way in the meetings of the Company or its Group
Companies and shall be required to maintain the
confidentiality of all material presented, discussed or
distributed during such meeting.
3.10 Access and Visitation Rights. The Lender shall have the
right, upon reasonable advance written notice and
during reasonable business hours, to visit the offices
of the Company and to have access to the books and
records of the Company and any other Group Company.
Access to the books and records of a Group Company
shall include permission to review such books and
records and to make copies of selected excerpts of such
books and records, subject to the confidentiality rules
of the Company and the Group Companies and to the
obligations of confidentiality arising under this
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Of the Company. The Company hereby represents and
warrants to the Lender at the date of this Agreement
and at the date of any request by the Company for a
drawdown, as follows:
(a) The Company is a corporation duly incorporated and
validly existing under the laws of the State of
Delaware, USA. The Company has all corporate
power, permits and authorization necessary to own
and operate its properties and to carry on the
businesses currently conducted by it;
(b) Every Group Company (i) is duly incorporated,
validly existing and in good standing under the
laws of its respective jurisdictions of
incorporation; and (ii) has the corporate power,
permits and other authorizations necessary to own
and operate its respective properties and to carry
on the respective businesses currently conducted
by it;
(c) The Company has delivered to the Lender true and
complete copies of the following information: (i)
the Certificates of Incorporation of every Group
Company as amended to the date of this Agreement;
(ii) the Articles of Association of Every Group
Company in effect on the date of this Agreement;
and (iii) unaudited financial statements (the
"Financial Statements") for the period ending
December 31, 2001 for the Company;
(d) Any Interim Financial Statements provided to the
Lender present fairly the financial position of
the Company as of the date they are issued and
this warranty shall be repeated whenever such
Statements are delivered to the Lender;
(e) Since the date on which disclosure information was
distributed to the Lender, as listed in Annex 2
hereto, there has been no material adverse change
in the business prospects or financial condition
of any Group Company; There are no conditions
existing with respect to any Group Company's
markets, products, operations, facilities or
personnel which might imminently and materially
adversely affect the business or prospects of the
Group Companies, taken as a whole, other than such
conditions as may affect the industries and the
markets in which the Group Companies participate
and operate as a whole;
(f) This Agreement has been duly authorized by all
necessary corporate action of the Company and has
been duly executed and delivered and is a valid
and legally binding agreement of the Company in
accordance with its terms. The conversion of the
Loan into shares of the Company as contemplated by
this Agreement, the execution and delivery of this
Agreement and the compliance with the terms hereof
do not and will not conflict with or result in a
violation or breach of any of the terms or
provisions of, or constitute a default under, the
Certificate of Incorporation or the Articles of
Association of the Company;
(g) On the date hereof, the Company has an authorized
capitalization of 25,000,000 Common Shares, of
which 13,133,613 Common Shares are issued and
outstanding as at the date of execution of this
Agreement by the Company. There are no
outstanding subscriptions, options, rights
(preemptive or otherwise) or commitments for the
purchase of any Common Shares or other securities
of the Company convertible into or exchangeable
for the issuance of additional Common Shares other
than options to purchase Common Shares provided to
Employees and other key individuals of the Group
Companies pursuant to the Company's Stock
Incentive Plan; convertible loans permitted in
accordance with Section 3.5 above; and other than
the Company's offer to the minority security
holders of Javien Inc. (Bahamas), one of the Group
Companies, to acquire the remaining securities of
Javien Inc. (Bahamas) which the Company does not
own, such that Javien Inc. (Bahamas) might become
a wholly-owned subsidiary of the Company, on the
following basis:
(i) Issuing up to 90,000 Common Shares for the shares of
Javien Inc. (Bahamas) which the Company does not yet own
(the Company after March 31, 2002 owns 99.7% of all
outstanding shares of Javien Inc. of the Bahamas);
(ii) Issuing warrants permitting the holders to acquire up
to 141,136 Common Shares at an exercise prices of
US$0.37 to US$1.10 per share until expiration of such
warrants, which will expire in early 2006, in exchange
for existing warrants to acquire shares of Javien Inc.
(Bahamas) on similar terms;
(iii)Reserving up to 63,211 Common Shares for the possible
issuance upon conversion of an outstanding CDN$97,000
convertible debenture issued by the Company, which
debenture expires December 31, 2002; and
(iv) Reserving up to 100,000 Common Shares for the possible
issuance upon conversion of an outstanding USD$10,000
convertible debenture issued by the Company, which
debenture expires December 31, 2002.
(h) Each Group Company has filed all tax returns
(federal, state (or provincial) and local),
required to be filed by it, and has paid all taxes
shown to be due and payable on said returns or on
any assessments received by it as well as other
taxes (federal, state (or provincial) and local)
known to be due and payable by it on or before the
date hereof, other than such federal, state (or
provincial) and local taxes the installment
payments of which are not yet due and other than
specific payroll tax obligations, other than such
taxes or dues as specified above that are under re-
assessment or re-calculation;
(i) Each Group Company has good and marketable title
to its properties and assets, subject to no
mortgage, pledge, lien, encumbrance, or charge,
other than (i) as reflected in the Financial
Statements; or (ii) possible minor matters that in
the aggregate do not exceed fifty thousand (US$
50,000) U.S. dollars and do not materially detract
from or interfere with the present or intended use
of these assets;
(j) No Group Company is in violation of any term or
provision of its Certificate of Incorporation,
Articles of Association, or of any mortgage,
indenture, judgment, decree or other instrument or
agreement to which such Group Company is a party
or by which it or its property is bound, and the
execution, delivery and performance of this
Agreement will neither result in any material
violation of any such term or provision nor be in
conflict with or constitute a material default
under any such term or provision. There is no
legal action or proceeding or investigation by any
regulatory authority pending or, to the knowledge
of the officers of any Group Company, threatened
against any Group Company;
(k) No Group Company is in breach of any covenants,
obligations or provisions contained in any similar loan
or debt agreement; and
(l) The Company has disclosed to the Lender the information
contained in Annex 2, which it considers constitutes all
material information relating to the financial and
constitutional position of the Company and the Group
Companies as at the date of this Agreement and which may
reasonably, in the Company's view, have a material
impact on the investment decision of the Lender.
(m) The Company is in the final stages of negotiating a
merger with MicroCreditCard, Inc. ("MCC"), a company
incorporated in the State of Virginia, whereby the
Company will issue up to 6,138,668 Common Shares to
acquire up to 100% of the outstanding shares of MCC. The
Company will issue a minimum of 3,069,334 Common Shares
to acquire no less than 50% of MCC, otherwise the
transaction will be cancelled and annulled. This
transaction is contemplated to be completed on or about
August 1, 2002.
4.2 Of the Lender. The Lender hereby represents and
warrants to the Company as follows:
(a) The Lender is an experienced investor in unlisted
securities of this type, has already made such
investments and well understands their risks;
(b) The Lender acknowledges that no action has been
taken that would permit an offering of Shares of
the Company to the public in the jurisdiction in
which the Lender is resident or located or in any
other jurisdiction where action for that purpose
would be required and, accordingly, no shares of
the Company may be resold in any jurisdiction in
any manner that would result in the
characterization of the transactions contemplated
hereby or the offer of the shares of the Company
as a public offering;
(c) The Lender is aware that no state or other agency
has passed upon or made any finding or
determination concerning the fairness of the
transactions contemplated by this Agreement or the
adequacy of the disclosure of the annexes to this
Agreement, and that Lender must forego the
security, if any, that such a review would
provide;
(d) The Lender understands and acknowledges that no
tax authority has been asked to rule on the tax
consequences of the transactions contemplated
hereby and, accordingly, in making the Lender's
decision to provide funding to the Company, upon
the terms and conditions set forth in this
Agreement, the Lender has relied upon the
investigations of the Lender's own tax and
business advisers in addition to the Lender's own
independent investigations, and that the Lender
and the Lender's advisers have fully considered
all the tax consequences of the Lender's
acquisition of Shares of the Company as
contemplated by this Agreement;
(e) The Lender has all requisite authority to conduct
its business as it is now being conducted and to
execute, deliver and perform all its obligations
under this Agreement;
(f) This Agreement has been duly authorized by all
necessary action of the Lender and has been duly
executed and delivered and is a valid and legally
binding agreement of the Lender in accordance with
its terms. The conversion of the Loan into Shares,
as contemplated by this Agreement, the execution
and delivery of this Agreement and the compliance
with the terms hereof do not and will not conflict
with or result in a violation or breach of any of
the terms or provisions of, or constitute a
default under any agreement or instrument to which
the Lender is bound; and
(g) The Lender has received, reviewed and understood
the Company's disclosure documents in Annex 2
hereto, including the financial statements
contained therein, and the Lender represents and
warrants that such information is adequate and
sufficient for the purpose of informing him about
his investment in the Company.
4.3 Survival. The representations and warranties of the
parties hereto contained in this Article IV shall
survive the execution and delivery of this Agreement.
ARTICLE V
EVENTS OF DEFAULT AND EXPIRATION
5.1 Events of Default. In the event that:
(a) the Company shall fail to pay any sum which
becomes due in accordance with the terms of this
Agreement; or
(b) the Company shall make any material default in the
performance of any of its obligations hereunder;
or
(c) an order shall be made or an effective resolution
passed or petition filed for the insolvency or the
winding up of the Company, or distress or
execution or other process is levied or enforced
against or upon the whole or a substantial part of
the assets of the Company; or
(d) the Company shall be in breach of its covenants or
undertakings contained in Article III above; or
(e) the Company shall be in material default under any
other loan or facility agreement; or
(f) any representation or warranty made in Article IV
hereof by the Company shall prove to have been
materially false or misleading at the time made;
or
(g) the Company or any of its Group Companies suffers
the loss of the whole or a substantial part of its
assets, except in the case of a pre-meditated wind-
up,; or
(h) any indebtedness of the Company or any of its
Group Companies in an amount of US$ 100,000 or
more becomes due, or capable of being declared
due, before its stated maturity or after
expiration of any grace period or is not repaid at
maturity as extended by any applicable grace
period, or any guarantee or similar obligation of
the respective borrower is not discharged at
maturity or when called or it goes into default
under, or commits a breach of, any instrument or
agreement relating to any such indebtedness,
guarantee or other obligation; or
(i) it becomes unlawful for the Company to perform or
comply with any of its obligations hereunder; or
(j) attachment or execution is levied against, or
an encumbrance shall affect, all or a substantial
part of the undertaking, property or assets of the
Company or, in the case of any of the other Group
Companies, an attachment or execution is levied
against, or an encumbrance shall affect any other
Group Company which is not being wound up,
dissolved or otherwise disposed of by the Company
following notice to the Lender in accordance with
subsection 5.1(g) hereof,
then in any such case and at any time thereafter the
Lender may, in its sole discretion, by written notice
to the Company declare the principal of and all
Interest relating to the Loan due and payable
immediately, whereupon the same shall become due and
payable.
5.2 Expiration. This Agreement will expire upon:
(a) the repayment in full of the Loan together with
any Interest due thereon and with any and all
payment due hereunder; or
(b) the conversion of all of the Conversion Amount
into equity of the Company and the delivery to the
Lender of documentation evidencing such equity
interest; or
(c) the conversion of a portion of the Loan into
equity of the Company, the delivery to the Lender
of documentation evidencing such equity interest
and the repayment in full of the balance of the
Loan and any Interest due thereon to the Lender.
ARTICLE VI
GOVERNANCE OF THE COMPANY AND NOTICES
6.1 Conversion Period. The Company covenants that it shall
not, at any time following the signing of this
Agreement until the expiration of the Conversion
Period, without the prior written consent of the
Lender, authorize or take any of the following actions:
(a) the distribution of any dividends;
(b) the filing of a petition for voluntary bankruptcy
or liquidation of the Company; or
(c) fundamentally change the nature of the business
other than as described in the business plan or
other than as described in the disclosure
documentation provided to the Lender.
6.2 Notices. All notices which must or may be given
pursuant to or in respect of this Agreement shall be in
writing and given or made in the English language and
may be given by hand delivery, telefax, locally
recognized courier or registered mail. Notice hereunder
shall be deemed to be received by the relevant
addressee listed below, or such other addressee as the
party hereto may from time to time designate by like
notice, on the first Business Day after delivery if it
was hand delivered, sent by telefax or dispatched by
locally recognized courier, and on the second Business
Day if it was mailed by registered mail. Should any
party hereto exercise more than one of the aforesaid
alternatives of delivery of notices hereunder, then
a relevant notice shall be deemed to be received by the
other party on such above-prescribed Business Day which
occurs the earliest.
(a) in the case of a notice to the Lender:
First Venture Capital Limited
[Intentionally deleted]
[Intentionally deleted]
[Intentionally deleted]
Attention: [Intentionally deleted]
Facsimile No.: [Intentionally deleted]
(b) in the case of a notice to the Borrower:
Javien, Inc.
c/o ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLC.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
In proving delivery it shall be sufficient for the
sender to prove that the notice was delivered,
dispatched or posted in the manner described above.
ARTICLE VII
MISCELLANEOUS
7.1 Actions to be Taken. Each of the parties to this
Agreement agrees that it will take all such action, and
use its best efforts to cause others to take all such
action as shall be necessary and advisable to complete
the purpose of this Agreement.
7.2 Entire Agreement. This Agreement constitutes and
contains the entire agreement between the parties to
this Agreement and supersedes all prior agreements
among or between any of the parties or their affiliates
relating to the subject matter of this Agreement.
7.3 Amendment. This Agreement may be amended or modified
only by an agreement in writing signed by all of the
parties to this Agreement.
7.4 Severability. The unenforceability or invalidity of
any Article, Section, subsection or provision of this
Agreement shall not affect the enforceability or valid
ity of the other provisions of this Agreement.
7.5 Assignment. No interest of any party in any part of
this Agreement may be assigned or otherwise transferred
except with the prior written consent of the other
party except that the Company shall be entitled to
assign or transfer this Agreement to any entity owned
or controlled by or under common ownership or control
with the Company, without the prior written consent of
the other parties to this Agreement.
7.6 No Continuing Waiver. The waiver, express or implied,
by any party of any right under this Agreement or any
failure to perform or breach by another party shall not
constitute or be deemed a waiver of any other right
under this Agreement or of the same right on another
occasion.
7.7 Expenses. Each party to the contemplated transaction
shall be responsible for its own expenses.
7.8 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of each of the
parties hereto and their respective successors and
permitted assigns.
7.9 Governing Law; Disputes. This Agreement shall be
governed by and construed in accordance with the laws
of England. The parties hereto agree to settle any
dispute arising from this Agreement in amicable way.
Should there be no settlement in amicable way within
thirty (30) days, a dispute, including any question
regarding its existence, validity or termination, shall
be referred to and finally resolved by arbitration
under the ICC Rules, which Rules are deemed to be
incorporated by reference into this Section. The number
of arbitrators shall be three (3). The seat of
arbitration shall be London, England. The language to
be used in the arbitral proceedings shall be English.
7.10Execution Copies. This Agreement shall be executed in
sufficient counterparts such that each party may
receive one fully executed original, with the exception
of the Lender who shall receive two (2) fully executed
originals, and all the counterparts taken together
shall be deemed to constitute one and the same
instrument.
7.11 Confidentiality. It is understood and agreed that all
information generated or obtained by the Lender in
connection with this Agreement and with the Company,
including without limitation information obtained by the
Lender in connection with its information rights under this
Agreement, is confidential and shall not be released by the
Lender to any third parties except as to that information
that is required by law to be reported and information that
is permitted to be disclosed by agreement of the parties.
7.12 Enforceability The terms of this Agreement may only be
enforced by a party to it and the operation of the Contracts
(Rights of Third Parties) Act 1999 is excluded from this
Agreement."
IN WITNESS WHEREOF, each of the parties has itself or
by its duly authorized representative or representatives
executed this Agreement on the date first above written.
For the Lender:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇. ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Position: Director Position: Director
First Venture Capital Limited First Venture
Capital Limited
For the Company:
/s/ R. Wolfli
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Position: Chairman
Javien, Inc.
Annex 1
Definitions
"Articles of Association"
shall mean the Articles of Association, Incorporation or
Continuance of every Group Company attached as part of the
disclosure documents in Annex 2 to this Agreement;
"Board of Directors"
shall mean the board of directors of the Company or such
other company as the context permits;
"Business Day"
shall mean any day on which commercial banks are open for
normal banking business in the Isle of Man, London and New
York;
"Common Shares"
shall mean the shares of common stock in the capital of the
Company with a par (or nominal) value of US$ 0.001 each,
having the rights and privileges set out in the Articles of
Association of the Company as may be issued from time to
time;
"Employees"
shall mean an individual who is employed on a full-time
basis by the Company or any other Group Company from time to
time;
"Equity Investment"
shall mean any subscription for shares in the capital of the
Company;
"US$"
shall mean the lawful currency of the United States of
America;
"Event of Default"
shall mean the events set out in Section 5.1 of this
Agreement;
"Group Company"
shall mean the Company and every other company in which the
Company holds a majority voting equity interest in such
company or has the ability to control the management of such
company;
"Maturity Date"
shall be 270 calendar days from the date of the second
parties signing of the Agreement;
"Shareholder(s)"
shall mean collectively all (or some) of the holders of
Common Shares from time to time;
"Shareholdings"
shall mean the total number of Common Shares held by each
Shareholder respectively from time to time;
"Shares"
shall mean the Common Shares and preferred shares in the
capital of the Company each having the rights and privileges
set out in the Articles of Association of the Company as may
be issued from time to time; and
"Third Party"
shall mean any person, individual, corporate body,
partnership or other entity, other than any Group Company.
Annex 2
List of Disclosures
(i) the Certificates of Incorporation of every Group
Company as amended to the date of this Agreement;
(ii) the Articles of Association of every Group Company in
effect on the date of this Agreement; and
(iii) unaudited financial statements (the "Financial
Statements") for the period ending December 31, 2001 for
the Company.