EXHIBIT 4.9
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AMENDED AND RESTATED CONVERTIBLE LOAN AGREEMENT
dated August 7, 2001
by and between
ARTESIA BANKING CORPORATION SA
and
VASCO DATA SECURITY EUROPE NV
and
VASCO DATA SECURITY INTERNATIONAL, Inc.
and
MR. T. ▇▇▇▇▇▇▇ ▇▇▇▇
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Loan Agreement Dated August 7, 2001
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TABLE OF CONTENTS
Article 1: Definitions.......................................................................................5
Article 2: Interpretation....................................................................................8
Article 3: Amendment and Restatement.........................................................................9
Article 4: Convertible Loan.................................................................................10
4.1 Principal Amount................................................................................10
4.2 Maturity........................................................................................10
4.3 Interest........................................................................................10
4.4 Register........................................................................................11
Article 5: Payment of the Interest..........................................................................11
Article 6: Conversion.......................................................................................11
6.1 Conversion of the Principal Amount..............................................................11
6.2 Conversion Procedure............................................................................11
6.3 Delivery of the Conversion Shares...............................................................11
6.4 Nature of the Conversion Shares.................................................................12
6.5 Adjustment......................................................................................12
6.6 General Provisions in Respect of Conversion.....................................................12
Article 7: Repayment of the Principal Amount................................................................13
7.1 Repayment on the Maturity Date..................................................................13
7.2 Early Repayment prior to the Maturity Date......................................................13
7.3 Early Repayment Procedure.......................................................................13
7.4 Early Repayment Fee.............................................................................14
Article 8: Representations, Warranties and Indemnification by VDSE and Vasco................................14
8.1 Representations and Warranties..................................................................14
8.2 Indemnification.................................................................................16
Article 9: Default..........................................................................................16
9.1 Events of Default...............................................................................16
9.2 Default Remedies................................................................................18
Article 10: Pledge..........................................................................................18
Article 11: Payments........................................................................................19
Article 12: Confidentiality.................................................................................19
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Article 13: Miscellaneous...................................................................................19
13.1 Expenses........................................................................................19
13.2 Notices.........................................................................................20
13.3 Governing Law and Jurisdiction..................................................................20
13.4 Entire Agreement................................................................................20
13.5 Invalidity......................................................................................20
13.6 Amendments......................................................................................20
13.7 Assignment......................................................................................21
13.8 Counterparts....................................................................................21
Schedule A: Adjustment......................................................................................23
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AMENDED AND RESTATED CONVERTIBLE LOAN AGREEMENT
-----------------------------------------------
This Amended and Restated Convertible Loan Agreement (the "Agreement")
is made this 7th day of August, 2001.
BY AND BETWEEN:
(1) ARTESIA BANKING CORPORATION SA, a company incorporated under the laws
of the Kingdom of Belgium, with registered office at ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; hereinafter referred to as
"Artesia";
(2) VASCO DATA SECURITY EUROPE NV, a company incorporated under the laws of
the Kingdom of Belgium, with registered office at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇; hereinafter referred to as "VDSE";
(3) VASCO DATA SECURITY INTERNATIONAL, INC., a company incorporated under
the laws of Delaware, United States of America, with registered office
at 1901 South ▇▇▇▇▇▇ Road, Suite 210, Oakbrook Terrace, Illinois 60181,
Illinois, United States of America; hereinafter referred to as "Vasco";
and
(4) MR. T. ▇▇▇▇▇▇▇ ▇▇▇▇, of American nationality, residing at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America;
hereinafter referred to as the "Pledgor."
WHEREAS:
(A) On August 4, 1997, Banque Paribas Belgique SA ("Paribas") (the legal
predecessor of Artesia), VDSE, Vasco Corporation ("Vasco Corporation")
(the legal predecessor of Vasco), and the Pledgor entered into a
Convertible Loan Agreement (the "Convertible Loan Agreement"), pursuant
to which Banque Paribas Belgique SA subscribed to a convertible loan
issued by VDSE.
(B) In connection with the Convertible Loan Agreement, on July 15, 1997,
Paribas and the Pledgor entered into a Pledge Agreement (the "Pledge
Agreement"), pursuant to which the Pledgor granted a pledge on his
shares in Vasco Corporation for the benefit of Paribas as a security
for the prompt and complete payment of all amounts due and payable by
VDSE under the Convertible Loan Agreement to Paribas.
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(C) On ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ and Vasco Corporation entered into a
New Vasco Convertible Note Agreement (the "New Vasco Convertible Note
Agreement"), amending certain terms of the Convertible Loan Agreement.
(D) The parties hereto wish to amend certain terms of the Convertible Loan
Agreement (as amended) and the Pledge Agreement, pursuant to the terms
and conditions set forth herein.
IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1: DEFINITIONS
----------------------
In this Agreement (including the above Recitals), unless the context
otherwise requires, the following capitalized terms and expressions
shall have the following meaning:
"Agreement"....................shall mean this Amended and Restated
Convertible Loan Agreement
"Affiliate"....................when used in connection with a Person
shall mean any and all other Persons
that, directly or indirectly, control or
are controlled by, or are under common
control with, such Person, as the case
may be in accordance with Articles 5 to
14 of the Belgian Company Law Act
"Artesia"......................shall mean Artesia Banking Corporation
SA, as set forth under the list of
parties hereto
"Business Day".................shall mean any calendar day during which
banks are open for business in Brussels
(Belgium), as well as New York (United
States of America), excluding Saturdays
and Sundays
"Conversion Date"..............shall have the meaning as defined in
Article 6.2
"Conversion Notice"............shall have the meaning as defined in
Article 6.2
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"Conversion Price".............shall have the meaning as defined in
Article 6.1
"Conversion Share".............shall have the meaning as defined in
Article 6.1
"Conversion"...................shall have the meaning as defined in
Article 6.1
"Convertible Loan Agreement"...shall have the meaning as defined in
Recital A, including any and all
amendments thereto
"Convertible Loan".............shall have the meaning as defined in
Article 4.1
"Delivery Date"................shall have the meaning as defined in
Article 6.3
"Early Repayment Date".........shall have the meaning as defined in
Article 7.3
"Early Repayment Fee"..........shall have the meaning as defined in
Article 7.4
"Early Repayment Notice".......shall have the meaning as defined in
Article 7.3
"Early Repayment"..............shall have the meaning as defined in
Article 7.2
"Event of Default".............shall have the meaning as defined in
Article 9.1
"Interest".....................shall have the meaning as defined in
Article 4.3
"Maturity Date"................shall have the meaning as defined in
Article 4.2
"New Vasco Convertible Note
Agreement"....................shall have the meaning as defined in
Recital B, including any and all
amendments thereto
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"Paribas"..................... shall have the meaning as defined in
Recital A
"Person".......................shall mean any individual, legal entity
with separate legal personality,
partnership, joint venture, corporation,
limited liability company, trust,
unincorporated organization, government
or department or agency of a government
or other entity
"Pledge Agreement".............shall have the meaning as defined in
Recital B, including any and all
amendments thereto
"Pledgor"......................shall mean Mr. T. ▇▇▇▇▇▇▇ ▇▇▇▇, as set
forth under the list of parties hereto
"Principal Amount".............shall have the meaning as defined in
Article 4.1
"Recital"......................shall mean the recitals to this
Agreement
"Refinancing Date".............shall have the meaning as defined in
Article 3.1
"Refinancing Fee"..............shall have the meaning as defined in
Article 3.2
"Repayment"....................shall have the meaning as defined in
Article 7.1
"Schedule".....................shall mean any and all schedules to this
Agreement
"Subscription Date"............shall have the meaning as defined in
Article 4.1
"Subsidiary"...................when used in connection with a Person
shall mean any and all other Persons
that, directly or indirectly, are
controlled by, or are under common
control with, such Person, as the case
may be in accordance with Articles 5 to
14 of the Belgian Company Law Act
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"Term".........................shall have the meaning as defined in
Article 4.2
"Vasco Corporation"............shall have the meaning as defined in
Recital A
"Vasco Group"..................shall mean Vasco and any and all
Subsidiaries of Vasco
"Vasco"........................shall mean Vasco Data Security
International, Inc., as set forth under
the list of parties hereto
"VDSE".........................shall mean Vasco Data Security Europe
NV, as set forth under the list of
parties hereto
ARTICLE 2: INTERPRETATION
-------------------------
2.1 Headings and sub-headings used in this Agreement are for convenience
only and shall not affect the construction or interpretation of this
Agreement.
2.2 References to Schedules and to parts of Schedules are to the Schedules
and to parts of the Schedules to this Agreement; references to the
Recitals are to the Recitals to this Agreement; references to Articles
are to Articles in this Agreement and, unless otherwise specified,
references to Sub-articles are to Sub-articles of the Article in which
such references appear.
2.3 Unless the context does not so admit, reference to any individual or
individuals shall include his or their respective executors and
personal representatives whomsoever.
2.4 Unless the context does not so admit, reference to the singular
includes a reference to the plural and vice versa, and reference to the
masculine includes a reference to the feminine and neuter and vice
versa.
2.5 This Agreement includes each of the Schedules incorporated herein and
will be deemed to have effect as if the provisions of such Schedules
were fully set out herein.
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ARTICLE 3: AMENDMENT AND RESTATEMENT
------------------------------------
3.1 Subject to the effective payment of the Refinancing Fee in accordance
with Article 3.2 below, with effect as of the date of this Agreement
(the "Refinancing Date"), and except as expressly indicated otherwise
herein, the parties hereby expressly agree and acknowledge:
(a) without prejudice to (b) and (c) below, to amend the
Convertible Loan Agreement and the New Vasco Convertible Note,
and to replace and/or restate the latter agreements with the
terms and conditions set forth herein; and
(b) that the present Agreement is without prejudice to sections 2,
3 and 4 of the New Vasco Convertible Note Agreement, which are
the only clauses of that agreement that remain in force, and
the Pledge Agreement; and
(c) that the present Agreement is without prejudice to any payment
made by VDSE and Vasco (and their respective legal
predecessors, where applicable) to Artesia (and its legal
predecessors, where applicable) by virtue of the Convertible
Loan Agreement, the New Vasco Convertible Note Agreement, and
the Pledge Agreement, which payments shall remain duly
acquired by Artesia (and its legal predecessors, where
applicable) in accordance with the terms pursuant to which
such payments were made; and
(d) in general, does not affect any of the acquired rights of the
parties that accrued and arose prior to the Refinancing Date.
3.2 In consideration of the foregoing, VDSE and Vasco hereby jointly and
severally agree to pay to Artesia a refinancing fee (the "Refinancing
Fee") equal to 32,725 US$ [i.e. equal to an interest on the Principal
Amount (as defined below) at a rate of 2.75 per annum to be calculated
as from April 1, 2001, up to the Refinancing Date and based on a year
of 360 days].
The Refinancing Fee is due and payable to Artesia on the Refinancing
Date, by means of a wire transfer to account number referred to in
Article 11, with the Refinancing Date as value date of the payment.
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ARTICLE 4: CONVERTIBLE LOAN
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4.1 Principal Amount
----------------
VDSE issued, and Artesia (via its legal predecessor Paribas) fully
subscribed to, a convertible loan (the "Convertible Loan") for a
principal amount of US$3,400,000 (the "Principal Amount") on August 20,
1997 (the "Subscription Date") in accordance with Article 3.1 of the
Convertible Loan Agreement.
4.2 Maturity
--------
The Convertible Loan has a term (the "Term") starting on the relevant
Subscription Date and ending at the earlier of (i) September 30, 2003
(the "Maturity Date"), (ii) the Delivery Date in the event of
Conversion (as defined below), and (iii) the Early Repayment Date in
the event of Early Repayment (as defined below).
4.3 Interest
--------
In consideration of the subscription to the Convertible Loan, an
interest (the "Interest") at a rate of 6.00% per annum, starting on the
Refinancing Date is due on the Principal Amount of the Convertible
Loan.
The parties hereby agree and acknowledge for the avoidance of doubt
that the Interest applicable to the Principal Amount for the period
starting on October 1, 2000 up to and including the calendar date
immediately preceding the Refinancing Date is at a rate of 3.25% per
annum, and that the Interest for periods as of and after the
Refinancing Date is at a rate of 6.00%.
For the purpose of this Agreement, the Interest due and payable during
a certain period that is less than one year, shall be calculated on the
basis of the actual number of days elapsed during such period, which
for the avoidance of doubt includes the first and the last calendar day
of such period, and a year of 360 days.
The parties hereby agree and acknowledge that the present Agreement is
without prejudice to the interest paid to Artesia and Paribas prior to
the Refinancing Date.
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4.4 Register
--------
[VDSE shall hold a register of bondholders at its offices. VDSE will
issue on first demand of Artesia certificates evidencing the
Convertible Loan, and authorizes Artesia to ensure the materiality of
these certificates.]
ARTICLE 5: PAYMENT OF THE INTEREST
----------------------------------
The Interest accrued on the Principal Amount during the period up to
(and including) September 30 of each calendar year shall be due and
payable on September 30 of such calendar year, and for the first time
on September 30, 2001, and for the last time at the earlier of (i) the
Maturity Date, (ii) the Delivery Date in the event of Conversion (as
defined below), and (iii) the Early Repayment Date in the event of
Early Repayment (as defined below).
ARTICLE 6: CONVERSION
---------------------
6.1 Conversion of the Principal Amount
----------------------------------
At any time during the Term, the Principal Amount of the Convertible
Loan can be converted by Artesia in accordance with the terms of this
Agreement into shares of common stock of Vasco (each such share a
"Conversion Shares") at a conversion rate (the "Conversion Price") of
US$7.50 per Conversion Share (such conversion a "Conversion").
6.2 Conversion Procedure
--------------------
If Artesia wishes to exercise its right to Conversion, it shall send a
written notice (the "Conversion Notice") to VDSE by registered letter,
with copy by ordinary mail or fax to Vasco, no later than the Maturity
Date, indicating that it exercises its right to Conversion. The date of
the post ▇▇▇▇ of the registered letter to VDSE shall be deemed (i) the
date of delivery of the Conversion Notice to Vasco and VDSE, and (ii)
the date of Conversion (the "Conversion Date").
6.3 Delivery of the Conversion Shares
---------------------------------
Upon Conversion, VDSE and Vasco are jointly and severally liable to
issue and deliver the Conversion Shares in book-entry form to Artesia,
or such other Person as will be indicated in the Conversion Notice,
within a term of ten (10)
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Business Days as of (and including) the Conversion Date (the "Delivery
Date").
The Conversion Notice shall contain the account number(s) into which
the Conversion Shares must be delivered to Artesia.
6.4 Nature of the Conversion Shares
-------------------------------
Each of VDSE and Vasco, at its own expense, shall take all necessary
steps and shall comply with all necessary formalities under applicable
securities laws and regulations, including, but not limited to, the
filing of the necessary applications, registration statements and/or
other forms as from time to time may be required by applicable stock
exchange regulations and applicable federal and state securities laws
and regulations of the United States of America and Belgium in order to
allow that upon Conversion and thereafter the Conversion Shares will be
(i) admitted to listing and trading on Nasdaq Europe, Nasdaq and any
other stock market or securities exchange on which the shares of common
stock of Vasco may then be traded or listed, and (ii) freely
transferable and tradable by Artesia without any (time, volume or
other) restriction, holding period or other transfer formality to be
complied with by Artesia (or the transferee of such Conversion upon
transfer of the Conversion Shares to it by Artesia) via Nasdaq Europe,
Nasdaq and any other stock market or securities exchange on which the
shares of common stock of Vasco may then be traded or listed or
otherwise. No holder of the Conversion Shares will be subject to
personal liability by reason of being such a holder; and the issuance
of the Conversion Shares is not subject to the preemptive of other
similar rights of any securityholder of Vasco.
6.5 Adjustment
----------
The parties hereby agree and acknowledge that the terms of this
Agreement shall be automatically amended from time to time to provide
that the Conversion Price per Conversion Share, the number of
Conversion Shares into which the Convertible Loan can be converted, and
the nature of the Conversion Shares shall be adjusted from time to time
as provided in Schedule A.
6.6 General Provisions in Respect of Conversion
-------------------------------------------
(a) The Conversion and delivery of Conversion Shares to Artesia
pursuant to the terms of this Agreement shall be deemed a full
repayment by VDSE and Vasco to Artesia of the Principal Amount
of the Convertible Loan.
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(b) The Principal Amount of the Convertible Loan must be converted
in its entirety. Fractions of the Principal Amount cannot be
converted.
(c) The Principal Amount cannot be converted into fractions of
Conversion Shares. If pursuant to the terms of this Agreement
upon Conversion fractions of Conversion Shares were to be
issued (save for the present section (c) of this Article 6.6),
the number of Conversion Shares to be issued and delivered
shall be rounded to the nearest highest number of entire
Conversion Shares.
ARTICLE 7: REPAYMENT OF THE PRINCIPAL AMOUNT
--------------------------------------------
7.1 Repayment on the Maturity Date
------------------------------
VDSE and Vasco hereby unconditionally and irrevocably agree to repay
the entire Principal Amount of the Convertible Loan to Artesia in one
single installment on the Maturity Date (such repayment the
"Repayment").
7.2 Early Repayment prior to the Maturity Date
------------------------------------------
Notwithstanding the provisions of Article 7.1, VDSE and Vasco are
entitled to repay the entire Principal Amount of the Convertible Loan
at any time after December 31, 2001, but before the Maturity Date (such
early repayment the "Early Repayment"), subject however to the
provisions set forth below in Articles 7.3 and 7.4.
7.3 Early Repayment Procedure
-------------------------
In the event VDSE and Vasco wish to exercise their right to Early
Repayment, VDSE or Vasco must give a prior written notice to Artesia
(the "Early Repayment Notice"). Upon receipt of the Early Repayment
Notice, Artesia shall have a term of ten (10) Business Days (excluding
the date of receipt of the Early Repayment Notice by Artesia) to
exercise its right to Conversion in accordance with Article 6 by
sending the Conversion Notice within such term.
If the Conversion Notice is not sent within the aforementioned term,
VDSE and Vasco shall have a term of thirty (30) calendar days as of
(but excluding) the last day of former term (but no later than the
Maturity Date) to repay the Principal Amount in cash. The date of
repayment of the Principal Amount in cash to Artesia shall for the
purpose of this Agreement be referred to as the "Early Repayment Date."
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7.4 Early Repayment Fee
-------------------
In consideration of the right to an Early Repayment, VDSE and Vasco
hereby unconditionally, and jointly and severally, agree and
acknowledge to pay to Artesia upon Early Repayment a fee equal to
US$102,000 (the "Early Repayment Fee"). The Early Repayment Fee shall
be due and payable to Artesia no later than the Early Repayment Date.
ARTICLE 8: REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION BY VDSE AND VASCO
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8.1 Representations and Warranties
------------------------------
Each of VDSE and Vasco hereby jointly and severally represents and
warrants to Artesia that each of the statements contained in this
Article 8 is true, correct and complete as of the Refinancing Date
until the earlier of (i) the Maturity Date, (ii) the Delivery Date in
the event of Conversion, and (iii) the Early Repayment Date in the
event of Early Repayment:
(a) Each of VDSE and Vasco is a company duly incorporated,
registered and validly existing under the laws of its
jurisdiction of incorporation and none is in bankruptcy,
liquidation or receivership (and no order or resolution
therefor has been presented and no notice of appointment of
any liquidator, receiver, administrative receiver or
administrator has been given, or to the best knowledge of each
of VDSE or Vasco is threatened).
(b) Each of VDSE and Vasco has full legal power and authority,
without the consent of any other Person to assume and perform
any and all obligations to be assumed and performed under this
Agreement by it and no further legal action on the part of any
of VDSE and Vasco is necessary to authorize this Agreement and
the performance of the transactions contemplated hereby.
The execution and delivery of this Agreement has been fully
authorized by each of VDSE and Vasco and is enforceable
against it in accordance with its terms.
This Agreement constitutes a valid and legally binding
obligation of each of VDSE and Vasco.
(c) The execution and delivery by each of VDSE and Vasco of, and
the performance by each of VDSE and Vasco of its obligations
under, this
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Agreement and the consummation of the transactions
contemplated herein will not contravene (i) any provision of
applicable law, (ii) the certificate of incorporation and/or
by-laws of each of VDSE and Vasco, (iii) any agreement or
other instrument binding upon Vasco Group that is material to
Vasco Group, taken as a whole, except such as would not singly
or in the aggregate have a material adverse effect, or (iv)
any judgment, order or decree of any governmental body, agency
or court having jurisdiction over Vasco Group, and (v) no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by each of VDSE and Vasco of its obligations under
this Agreement, and no consent, approval, authorization,
order, registration, clearance or qualification of or with any
such court or governmental agency or body, or any stock
exchange authority having jurisdiction over each of VDSE and
Vasco is required for the issuance and delivery of the
Conversion Shares pursuant to this Agreement to Artesia, the
performance by each of VDSE and Vasco of its obligations under
this Agreement, and the consummation of the transactions
herein contemplated.
(d) No claim, investigation, lawsuit, arbitration, administrative
proceeding, government investigation or inquiry or similar is
existing, nor pending or threatened against or notified,
involving Vasco Group, before any judicial or administrative
court, arbitral tribunal or any official authority which if
adversely determined would have an adverse effect on the
assets, businesses or financial conditions of Vasco Group, nor
are there to the best knowledge of each of VDSE and Vasco
circumstances which would give rise to such claims, law suits,
proceedings, investigations or inquiries.
(e) The Conversion Shares to be issued and delivered to Artesia
upon Conversion have been duly authorized for issuance and
delivery to Artesia pursuant to this Agreement and, when
issued and delivered by VDSE or Vasco pursuant to this
Agreement upon Conversion, will be validly issued and fully
paid and non-assessable, and free and clear from any lien and
encumbrance. Each of VDSE and Vasco, at its own expense, shall
have taken all necessary steps and shall have complied with
all necessary formalities under applicable securities laws and
regulations, including, but not limited to, the filing of the
necessary applications, registration statements and/or other
forms as from time to time may be required by applicable stock
exchange regulations and applicable federal and state
securities laws and regulations of the United States of
America and Belgium, in order to allow that upon Conversion
and thereafter the Conversion Shares will be (i) admitted to
listing and
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Loan Agreement Dated August 7, 2001
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trading on Nasdaq Europe, Nasdaq and any other stock market or
securities exchange on which the shares of common stock of
Vasco may then be traded or listed, and (ii) freely
transferable and tradable by Artesia without any (time, volume
or other) restriction, holding period or other transfer
formality to be complied with by Artesia (or the transferee of
such Conversion upon transfer of the Conversion Shares to it
by Artesia) via Nasdaq Europe, Nasdaq and any other stock
market or securities exchange on which the shares of common
stock of Vasco may then be traded or listed or otherwise. No
holder of the Conversion Shares will be subject to personal
liability by reason of being such a holder; and the issuance
of the Conversion Shares is not subject to the preemptive of
other similar rights of any securityholder of Vasco.
8.2 Indemnification
---------------
VDSE and Vasco shall be jointly and severally liable to indemnify and
hold harmless Artesia, its Affiliates, and their respective directors,
officers, employees and agents from and against all damages incurred by
any of them arising from any claim, lawsuit or other action arising
from or relating to any misrepresentation, inaccuracy or breach by any
of VDSE and Vasco of any representation or warranty in Article 8.1.
ARTICLE 9: DEFAULT
------------------
9.1 Events of Default
-----------------
Each of the following events shall constitute an event of default under
this Agreement (each event an "Event of Default"):
(a) VDSE and Vasco fail to pay any amount payable hereunder as and
when such amount becomes payable pursuant to this Agreement
and such unpaid amounts remain unpaid for 10 calendar days
after the respective due date;
(b) VDSE and Vasco commit any breach of or default in the due
performance or observance of any of their respective
obligations or undertakings contained in this Agreement other
than those referred to in Article 9.1 (a), and such breach or
default is not remedied on or before the 10th day after it
occurs (or before any later date determined in good faith by
Artesia which reasonably allows VDSE and Vasco a longer term
to remedy the default);
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(c) any representation, warranty or statement made or deemed made
by VDSE or Vasco in this Agreement or any other document
delivered in connection with this Agreement proves to have
been incorrect, incomplete or misleading in any material
aspects as of the date on which it was made;
(d) any other indebtedness of Vasco Group in respect of a sum in
excess of (euro)250,000 or the equivalent in any other
currency is not paid when due for payment, after application
of the applicable grace periods, except for non-payments as to
which its creditor has consented or has waived the payment;
(e) any mortgage, charge, pledge, lien, hypothecation, title
retention, right in rem or any other security interest of
Vasco Group (being material to the undertaking or assets of
Vasco Group) becomes enforceable in respect of a sum in excess
of (euro)250,000 or the equivalent in any other currency and
the person or persons entitled to benefit thereof shall
initiate legal collection to enforce the same;
(f) all or any substantial part of the property of Vasco Group
shall be condemned, seized or otherwise appropriated in a
manner which Artesia reasonably considers may have a material
adverse effect on the business of Vasco Group, or Vasco Group
shall be prevented from exercising normal managerial control
over any substantial part of its property by any Person in a
manner which Artesia considers may have a material adverse
effect on the business of Vasco Group;
(g) there shall have occurred the liquidation or bankruptcy of
VDSE or Vasco or any order is made or resolution, tax or
regulation passed or other action taken for or with a view to
the dissolution, termination, liquidation or bankruptcy of
VDSE or Vasco (other than for the purposes of and followed by
an amalgamation or reconstruction the terms of which have been
approved in writing by Artesia);
(h) any court, tribunal or other authority makes an order for the
appointment of any administrator, receiver, liquidator,
curator, sequester, trustee or other similar officer of Vasco
Group or of all or any material part of the assets of Vasco
Group;
(i) Vasco Group stops payment generally or ceases or threatens to
cease to carry on its business or admits in writing its
inability to pay its debts as they fall due or makes a general
assignment for the benefit of creditors or enters into a
general arrangement or composition with or for the
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benefit of creditors or a general moratorium (however declared
or promulgated) is imposed or threatened on the payment of
indebtedness of Vasco Group;
(j) all or any material part of the assets of Vasco Group are
attached, levied or seized or become subject to any order of
court or other process and such attachment, levy, seizing,
order or process remains in effect and is not discharged
during a term of 60 days;
(k) this Agreement or any of the provisions hereof, with material
effect to the liabilities of Vasco Group, shall at any time
for any reason cease to be in full force and effect, be
declared to be void or shall be repudiated or the validity or
enforceability hereof or thereof shall at any time be
contested by Vasco Group, or Vasco Group shall deny that it
has any or any further liability or obligation under this
Agreement;
(l) the Pledgor does not fulfill his obligations under the Pledge
Agreement, as amended.
9.2 Default Remedies
----------------
Artesia may at any time after the occurrence of the Event of Default
that is not remedied as set forth under Article 9.1, by notice in
writing to VDSE, with copy to Vasco, declare that the Principal Amount
of the Convertible Loan and the Interest accrued thereon and all other
sums payable pursuant to this Agreement, if any, have become
immediately due and payable whereupon the same shall become immediately
due and payable.
If any amount that has fallen due and payable in accordance with the
foregoing is not paid at the due date, Artesia shall be entitled to
liquidated damages in the form of an additional interest on the
outstanding amounts at a rate equal to the rate of the Interest
increased with 0.5 % per annum, to be calculated as from (and
including) the date the amount concerned is due up to and including the
date of payment of the due amount and a year of 360 days.
The above shall be without prejudice to any other remedy available to
Artesia under this Agreement or the applicable law.
ARTICLE 10: PLEDGE
------------------
The parties hereby agree and acknowledge that the pledge of shares
granted by the Pledgor to Artesia by virtue of the Pledge Agreement
shall be deemed to be
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Loan Agreement Dated August 7, 2001
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amended so as to serve as a security for the prompt and complete
payment when due of all amounts payable by VDSE and/or Vasco under this
Agreement.
ARTICLE 11: PAYMENTS
--------------------
Save as expressly indicated otherwise herein, all payments by Vasco and
VDSE under this Agreement shall be made in U.S. Dollars or US$ on the
date that payment is due to Artesia by deposit to account number
8900044551 at Bank of New York, New York, United States of America,
favor of Artesia Banking Corporation PC 8243, number 23057, or to such
other account as Artesia may have last designated by written notice to
VDSE and Vasco.
ARTICLE 12: CONFIDENTIALITY
---------------------------
Each of the parties shall keep the existence and subject matter of this
Agreement strictly confidential, unless a disclosure thereof is
required by applicable law or regulations, including any applicable
securities regulations, or unless such disclosure is required for the
purpose of enforcing or protecting a party's rights hereunder. In the
event of a disclosure required by law or a competent court of law, the
parties shall consult each other as to the manner, form and content of
the disclosure.
ARTICLE 13: MISCELLANEOUS
-------------------------
13.1 Expenses
--------
All legal expenses associated with the preparation, negotiation and
implementation of the present Agreement will be borne for 50% by VDSE
and Vasco, and for 50% by Artesia, being understood that the part borne
by VDSE and Vasco will be maximum (euro) 2,500.
The costs in relation to the issuance, and/or registration or similar
formality under applicable securities laws and regulations, of the
Conversion Shares and/or the Conversion of the Convertible Loan will be
borne exclusively by VDSE and Vasco.
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Loan Agreement Dated August 7, 2001
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13.2 Notices
-------
Unless expressly indicated otherwise herein, all notices to either
party shall be in writing and shall be delivered personally against
written confirmation or receipt or sent by facsimile with confirmation
page addressed to the other party at its registered office (or where
applicable, address of domicile) set forth in this Agreement or to any
other address such party shall from time to time have notified to the
other in accordance with the present Article 13.2. Unless expressly
indicated otherwise herein, any notice delivered by fax shall be deemed
received at the moment mentioned in the written confirmation of
receipt. Unless expressly indicated otherwise herein, any notice
delivered by registered mail shall be deemed (in the absence of
evidence of earlier receipt) to be received five (5) days after
posting.
13.3 Governing Law and Jurisdiction
------------------------------
This Agreement shall be governed by the laws of the Kingdom of Belgium.
Any and all disputes in connection with the conclusion, validity,
interpretation or performance of this Agreement shall be subject to the
exclusive jurisdiction of the Courts of Brussels, Belgium, without
prejudice to the right of Artesia to initiate legal proceedings before
any other competent court of any other competent jurisdiction.
13.4 Entire Agreement
----------------
Save as expressly indicated otherwise herein, this Agreement
constitutes the entire understanding of the parties hereto and
supersedes any prior agreements or understandings, written or oral,
between the parties with respect to the subject matter of this
Agreement.
13.5 Invalidity
----------
If any provisions of this Agreement are held to be invalid or illegal
in whole or in part, this Agreement shall continue to be valid as to
its other provisions and to the remainder of the affected provision.
The parties undertake to replace the invalid provision by a provision
having the same effects and objectives.
13.6 Amendments
----------
Any amendment to this Agreement or modification of the obligations of a
party has to be agreed upon in writing by all parties.
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Loan Agreement Dated August 7, 2001
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13.7 Assignment
----------
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors, provided, however,
that none of VDSE, Vasco and the Pledgor shall assign this Agreement or
its rights or obligations hereunder, without the prior written consent
of Artesia.
Artesia shall be free to assign and transfer any of its rights
hereunder to a third party without approval by the other parties.
13.8 Counterparts
------------
This Agreement may be executed in any number of counterparts, and by
the parties hereto on separate counterparts, but shall not be effective
until each party hereto has executed at least one counterpart. Each
counterpart shall constitute an original of this Agreement, but all the
counterparts together constitute but one and the same instrument.
- The remainder of this page has been left intentionally blank -
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Loan Agreement Dated August 7, 2001
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IN WITNESS WHEREOF the parties hereto have signed, initialed and
executed this Agreement on the day and year first written above, and each party
acknowledges the receipt of one original.
ARTESIA BANKING CORPORATION SA
By: ___________________________
Name: ......................
Title: .....................
Vasco Data Security Europe NV
By: ___________________________
Name: ......................
Title: .....................
Vasco Data Security International, Inc.
By: ___________________________
Name: ......................
Title: .....................
MR. T. ▇▇▇▇▇▇▇ ▇▇▇▇
___________________________
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Loan Agreement Dated August 7, 2001
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SCHEDULE A:
-----------
ADJUSTMENT
----------
1. In case, prior to the expiration of the Term of this Agreement as a
result of Conversion or otherwise pursuant to the terms hereof, Vasco shall
issue any shares of Vasco common stock as a stock dividend or subdivide the
number of outstanding shares of Vasco common stock into a greater number of
shares, then in either of such cases, the then applicable Conversion Price per
Conversion Share of the shares of Vasco common stock convertible pursuant to
this Agreement in effect at the time of such action shall be proportionately
reduced and the number of Conversion Shares at that time convertible pursuant to
this Agreement shall be proportionately increased; and conversely, in the event
Vasco shall contract the number of outstanding shares of Vasco common stock by
combining such shares into a smaller number of shares, then, in such case, the
then applicable Conversion Price per Conversion Share of the shares of Vasco
common stock convertible pursuant to this Agreement in effect at the time of
such action shall be proportionately increased and the number of Conversion
Shares of Vasco common stock convertible pursuant to this Agreement shall be
proportionately decreased. If Vasco shall, at any time during the term of this
Agreement, declare a dividend payable in cash on the Vasco common stock and
shall, at substantially the same time, offer to its stockholders a right to
purchase new shares of Vasco common stock from the proceeds of such dividend or
for an amount substantially equal to the dividend, all Vasco common stock so
issued shall, for the purpose of this Agreement, be deemed to have been issued
as a stock dividend. Any dividend paid or distributed upon the Vasco common
stock shall be treated as a dividend paid in Vasco common stock to the extent
that shares of Vasco common stock are issuable upon Conversion thereof pursuant
to the terms of this Agreement.
2. In case, prior to the expiration of the Term of this Agreement as a
result of Conversion or otherwise pursuant to the terms hereof, Vasco shall be
re-capitalized by reclassification of its outstanding Vasco common stock (other
than a change in par value to no par value), or Vasco or a successor corporation
shall consolidate or merge with or convey all or substantially all of its or of
any successor corporation's property and assets to any other corporation or
corporations (any such other corporations being included within the meaning of
the term "successor corporation" hereinbefore used in the event of any
consolidation or merger of any such other corporation with, or the sale of all
or substantially all of the property of any such other corporation to, another
corporation or corporations), then, as a condition of such re-capitalization,
consolidation, merger or conveyance, lawful and adequate provision shall be made
whereby Artesia shall thereafter have the right to acquire or convert into, in
lieu of the Conversion Shares of Vasco common stock theretofore convertible upon
the Conversion, such shares of stock, securities or assets of the other
corporation as to
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Loan Agreement Dated August 7, 2001
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which Artesia would have been entitled had Conversion taken place immediately
prior to such re-capitalization, consolidation, merger or conveyance; and in any
such event, the rights of Artesia to any adjustment in the number of Conversion
Shares of Vasco common stock convertible upon, as hereinbefore provided, shall
continue and be preserved in respect of any stock which Artesia becomes entitled
to acquire or convert into.
3. In case, prior to the expiration of the Term of this Agreement as a
result of Conversion or otherwise pursuant to the terms hereof, Vasco shall sell
all or substantially all of its property or dissolve, liquidate or wind up its
affairs, lawful provision shall be made as part of the terms of any such sale,
dissolution, liquidation or winding up, so that Artesia may thereafter receive
upon Conversion in lieu of each share of Vasco common stock which he would have
been entitled to receive, the same kind and amount of any securities or assets
as may be issuable, distributable or payable upon any such sale, dissolution,
liquidation or winding up with respect to each share of Vasco common stock;
provided, however, that in any case of any such sale or of dissolution,
liquidation or winding up, the right to Conversion shall terminate on a date
fixed by Vasco. Such date so fixed shall be no earlier than 3:00 p.m., New York
City time, on the forty-fifth (45th) day next succeeding the date on which
notice of such termination of the right to Conversion has been given by
registered mail to Artesia.
4. In case, prior to the expiration of the Term of this Agreement as a
result of Conversion or otherwise pursuant to the terms hereof, Vasco shall
determine to take a record of its stockholders for the purpose of determining
stockholders entitled to receive any dividend, stock dividend, distribution or
other right whether or not it may cause any change or adjustment in the number,
amount, price or nature of the securities or assets deliverable upon Conversion
pursuant to the foregoing provisions, Vasco shall give at least ten (10) days'
prior written notice to the effect that it intends to take such record to
Artesia, said notice to specify the date as of which such record is to be taken,
the purpose for which such record is to be taken, and the effect which the
action which may be taken will have upon this Agreement.
* * *
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