Exhibit 4.7
From: Banco Nominees (Guernsey) Ltd
PO Box 208
Bermuda House
St Julian's Avenue
St Peter Port
Guernsey GY1 3NF
To: Gentia Software plc
Tuition House
St. George's Road
Wimbledon
London SW19 4EU
9th December 1999
Dear Sirs:
1. AMOUNT
We are pleased to make available to you a loan in the principal sum of
$550,000 on the terms and conditions of this letter. The money shall be
paid into an account in the name of Gentia Software plc at Barclays
Bank Plc account number 20684058, sort code 20-65-63. Payment shall at
our option be made in US dollars or in the sterling equivalent.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above one
month U.S. dollar L.I.B.O.R. as varied from time to time accruing daily
and payable quarterly in arrears at the end January, April, July and
October in each year. However, if you default in the payment or
repayment on the due date of any sum from time to time due under this
letter or if the provisions of clause 4 are not complied with in full,
interest will accrue on a daily basis (payable on demand) on the amount
in respect of which default has been made from the date of default
until actual payment (both before and after judgment) at the rate of
five per cent (5%) per annum above one month U.S. dollar L.I.B.O.R.
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with us within 7 days of the date of this
letter (the "Security") and provide us with a copy of your and your
subsidiaries board minutes approving your entry into the Security (all
in a form satisfactory to us).
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the Company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $4.625.
6. SET OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to us at such account as we may in
our sole discretion nominate and from time to time instruct you in
writing. If any payment becomes due on a day which is not a day on
which banks are generally open for business in London, the due date of
such payment will be extended to the next business day. You will make
all payments under or in respect of this facility without set-off or
counterclaim and free and clear of any withholding or deduction for or
on account of tax, save as may be required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us if (1) you fail to pay any sum under this letter within
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; (5) you cease to
carry on business; or (6) if any of the above events at (2) - (5) occur
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COST AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post or by telefax
and either by delivering it to any of your officers at any place or by
despatching it addressed to you at your registered or principal office
for the time being or if faxed by sending to you on UK fax no: 0181 946
4027. Any such demand or notice delivered personally shall be deemed to
have been received immediately upon delivery. Any such demand or notice
sent by post shall be sent by a guaranteed next day delivery service
and shall be deemed to have been received at the opening of business on
the second working day following the day on which it was posted, even
if returned undelivered or if faxed on the printing of a slip on our
telefax machine showing "transmission OK".
10. PURPOSE
The loan is primarily for working capital purposes.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us or any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully For and on behalf of
BANCO NOMINEES (GUERNSEY) LTD.
/s/ Michael Bourne Authorised Signatory
Agreed and Accepted
/s/ Nicholas P.S. Bray
Date: 9th November 1999
For and on behalf of
GENTIA SOFTWARE PLC
Director
GENTIA SOFTWARE PLC
Minutes of a Meeting of the Board of Directors held by teleconference on 9th
December 1999.
PRESENT: Robin W. I. Lodge (Chairman)
Alan Wallman
Steve Fluin
Nick Bray
Tim Jones
IN ATTENDANCE:
1. QUORUM
It was noted that a quorum of the Board of Directors was present, and
the Meeting was therefore declared open.
2. PURPOSE
The Chairman reported to the Meeting that Banco Nominees (Guernsey)
Limited ("Banco Nominees") was proposing to lend $550,000 to the
Company pursuant to a loan agreement (the "Loan Agreement").
3. LOAN AGREEMENTS
3.1 There was produced to the meeting the Loan Agreement.
3.2 The Chairman reported that Banco Nominees had offered to lend the
Company $550,000 pursuant to the Loan Agreement repayable by the
Company together with interest (at a rate of two per cent (2%) above
one month US dollar L.I.B.O.R as varied from time to time) at any time
forthwith on demand.
3.3 The Chairman highlighted paragraph 4 of the Loan Agreement which
requires the Company and its subsidiary companies to enter into a
composite guarantee and debenture to be signed within 7 days of the
date of the Loan Agreement and paragraph 5 relating to the conversion
of the loan from debt to equity. It was noted that the Company on
demand for repayment of the loan will forthwith agree the terms upon
which the loan can be converted into American Depository Shares ("ADS")
of the Company which such ADSs being (1) evidenced by American
Depository Receipts, (2) registered under the United States Securities
Act of 1993 (as amended) and (3) listed on the NASDAQ National Market.
Each ADS shall represent one ordinary share, par value 15p of the
Company and for these purposes the deemed market value of each ordinary
share shall be $4.625.
3.4 The Chairman also reported that the Company had agreed in principle to
issue to Banco Nominees warrant certificates entitling Banco Nominees
to subscribe at US dollars 4.625 per share equal to 50% of the number
of shares to which Banco Nominees is entitled to convert its loan under
paragraph 5 of the Loan Agreement. The warrant certificates are to be
issued when the ADS referred to in paragraph 5 are issued.
3.5 The Board was asked to consider and, if thought fit, approve the
entering the Loan Agreement, the composite guarantee and the debenture
and issuing the warrant certificates.
4. APPROVAL OF AGREEMENTS
4.1 After due and careful consideration, the Board was unanimously of the
opinion that the execution and delivery by or on behalf of the Company
of the Loan Agreement, its composite guarantee and the debenture and
then issue the warrant certificates and the exercise by the Company of
its rights and the performance by the Company of its obligations
thereunder would materially benefit the Company as it would enable the
Company to have access to working capital.
4.2 Accordingly, it was resolved that the entering into the Loan Agreement
the composite guarantee, the debenture and the warrant certificate be
and are approved and that the signature by any director of all and any
such documents in the form produced to the meeting be and are
authorised.
5. FILING OF DOCUMENTS
The Secretary was instructed to completed appropriate entries in the
books of the Company and arrange for all necessary forms to be filed at
Companies House.
6. CLOSE
There being no further business the Meeting concluded.
/s/ Nicholas P.S. Bray
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Director