EXHIBIT 4.1
LOAN AGREEMENT
THIS LOAN AGREEMENT, (this "Agreement") is made as of the 30th day of
August, 2002, by and between Xxxxxx Xxxxxx, a resident of Solothurn, Switzerland
("Lead Lender"), and Adept Technology, Inc., a California corporation
("Borrower");
STATEMENT OF PURPOSE:
The Borrower desires to borrow from time to time funds from Lead Lender
for a loan in the principal amount of up to Eight Hundred Thousand Dollars
($800,000), and the Lead Lender is willing to accommodate the Borrower upon and
subject to the terms, conditions, and provisions of this agreement.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions
All accounting terms not specifically defined herein shall have the
meanings assigned to them as determined by generally accepted accounting
principles, consistently applied. Unless the context otherwise requires, when
used herein, the following terms shall have the following meanings:
1.1. "Events of Default" means those events set forth in Section 5
hereof.
1.2. "Liabilities" means the obligation of the Borrower to pay (a) the
unpaid principal amount of the Note, plus all accrued and unpaid interest
thereon, (b) all unpaid Liquidation Costs, and (c) all other charges, interest,
and expenses chargeable by the Lead Lender to the Borrower under this Agreement
and the other Loan Documents.
1.3. "Lien" means any mortgage, deed of trust, pledge, security
interest, assignment, encumbrance, lien, or charge of any kind, including,
without limitation, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction.
1.4. "Liquidation Costs" means all expenses, charges, costs, and fees
(including without limitation attorneys' fees and expenses) of any nature
whatsoever paid or incurred by or on behalf of the Lead Lender in connection
with (a) the collection or enforcement of any of the Liabilities and (b) the
collection or enforcement of any of the Loan Documents.
1.5. "Loan" means the loan in the principal amount of up to Eight
Hundred Thousand Dollars ($800,000) to be made by the Lead Lender to the
Borrower pursuant to the terms and conditions of this Agreement.
1.6. "Loan Documents" means collectively the Note, this Agreement, the
Stock Issuance Agreement dated of as the date hereof between Borrower and Lead
Lender and any other instrument, document, and agreement now and hereafter
evidencing, securing, guaranteeing, indemnifying, and given by the Borrower or
any third party in connection with the Loan or any of the other Liabilities
(including those documents set forth in Section 3 hereof) and any and all
amendments thereto and modifications thereof.
1.7. "Note" means that Promissory Note described in Section 2.2 hereof
and any and all amendments thereto and modifications thereof.
1.8. "Person" includes a corporation, an association, a partnership, an
organization, a business, an individual, or a government or political
subdivision thereof or government agency.
1.9. "Taxes" means all taxes and assessments whether general or
special, ordinary or extraordinary, or foreseen or unforeseen, of every
character (including all penalties or interest thereon), which at any time may
be assessed, levied, confirmed, or imposed on the Borrower or any of its
properties or assets or any part thereof or in respect of any of its franchises,
businesses, income or profits, and all claims for such sums which by law have or
might become a lien or charge upon any of its properties or assets.
SECTION 2. Loan to the Borrower
2.1 Loan Commitment. The Lead Lender agrees, at the request of the
Borrower, and subject to and in accordance with the terms, conditions, and
provisions of this Agreement, to make loans to the Borrower in the principal
amount of up to Eight Hundred Thousand Dollars ($800,000) ("Loan"). The
commitment of the Lead Lender to make the Loan pursuant to the provisions of
this Agreement is herein called its "Loan Commitment."
2.2 Note and Stock Issuance Agreement. The Loan shall be evidenced by,
repaid in accordance with the terms of and bear interest as and at the rates set
forth in the Borrower's Promissory Note to the Lead Lender in the form attached
hereto as Exhibit A and incorporated herein by reference, of even date herewith,
duly executed by the Borrower, and in the principal amount of the Loan ("Note").
In consideration for Lead Lender's entry into this Agreement and making of the
Loan Commitment, Borrower additionally agrees to issue certificates for up to
100,000 registered shares of common stock of Borrower to Lead Lender pursuant to
the Stock Issuance Agreement between Lead Lender and Borrower executed
concurrently with this Agreement.
2.3 Loan Disbursements. Subject to the compliance by Borrower with all
of the terms and conditions of this Agreement, Lead Lender agrees, at the
written request of Borrower, to disburse the proceeds of the Loan. Not less than
twenty (20) days prior to the date that Borrower desires a disbursement,
Borrower shall deliver to Lead Lender express written notice of a request for a
disbursement. Prior to the disbursement, Borrower shall have also delivered to
Lead Lender a certificate in a form satisfactory to Lead Lender from the chief
financial officer of the Borrower that no Events of Default have occurred under
the Loan Agreement and are continuing as of the date of disbursement. Each
disbursement is to be in an amount up to Two Hundred Thousand Dollars
($200,000). The first disbursement shall not be due in any event prior to
December 15, 2002. The maximum amount to be disbursed by Lead Lender to Borrower
during any three-month quarterly period is Two Hundred Thousand Dollars
($200,000), and the maximum to be disbursed under the Loan is $800,000. The
Borrower shall not have the right to repay and reborrow under this Agreement.
The Lead Lender shall disburse the funds pursuant to the disbursement directions
of Borrower within twenty (20) days after receipt of the request for
disbursement from Borrower, and concurrently with physical receipt of share
certificates pursuant to the Stock Issuance Agreement. Notwithstanding any
provision of this Agreement, the Lead Lender shall not be required to disburse
funds under this Agreement if an Event of Default (as defined below) has
occurred and is continuing. Notwithstanding the foregoing, there shall be no
obligation on the part of Borrower to request any disbursement of proceeds of
the Loan.
SECTION 3. Representations and Warranties
To induce the Lead Lender to make the Loan hereunder, the Borrower
hereby makes the following representations and warranties to the Lead Lender as
of the date hereof and as of the date of each disbursement:
3.1. Good Standing. The Borrower (a) is a corporation duly organized,
existing, and in good standing under the laws of the State of California, and
(b) has the power to own its property and to carry on its business and is
qualified to do business and is in good standing in each jurisdiction in which
the character of properties owned by it or the transaction of its business such
qualification necessary.
3.2. Authority. The Borrower has full power and authority to enter into
this Agreement, to make the borrowings hereunder, to execute and deliver the
Note and the other Loan Documents to which it is a party, and to perform and
comply with the terms, conditions, and agreements set forth herein and therein,
all of which have been duly authorized by all proper and necessary action of the
Borrower. No consent or approval of the shareholders of the Borrower or of any
governmental authority is required as a condition to the validity of this
Agreement, the Note, or the other Loan Documents.
3.3. Binding Agreement. This Agreement constitutes, and the Note and
the other Loan Documents constitute or will constitute when issued and delivered
for value received, the valid and legally binding obligations of the Borrower
enforceable in accordance with their respective terms.
3.4. Litigation. There are no claims, actions, suits or proceedings
pending or, so far as any person signing below as or on behalf of the Borrower
knows, threatened or reasonably anticipated before any court or administrative
agency which could have a material adverse affect on the financial condition or
operations of the Borrower.
3.5. Violation of Laws. Neither the consummation of the Loan nor the
use, directly or indirectly, of all or any portion of the proceeds of the Loan
hereunder will violate or result in a violation of any provision of any
applicable statute, regulation or order of, or any restriction imposed by, the
State of North Carolina or the United States of America or by an authorized
official, board, department, instrumentality, or agency thereof. The Borrower is
in compliance with all applicable federal, state and local laws, rules and
regulations and orders of any court or other governmental authority having
jurisdiction, the violation of which would have a material adverse affect on the
financial condition of the Borrower.
SECTION 4. Borrower's Covenants.
Until payment in full of all of the Liabilities:
4.1. Maintain Existence. The Borrower will at all times maintain in
full force and effect its corporate existence, rights, privileges, licenses,
permits and franchises and qualify and remain qualified in all jurisdictions
where qualification is required.
4.2. Compliance with Laws. The Borrower will at all times comply in all
material respects with all applicable federal, state, and local laws, rules, and
regulations relating to the Loan, this Agreement and the other Loan Documents,
and others of any court or other governmental authority having jurisdiction.
4.3. Reports to SEC and to Stockholders. The Borrower will furnish to
the Lead Lender, promptly upon the filing or making thereof, at least one (1)
copy of all financial statements, reports, notices, and proxy statements sent by
it to its stockholders, and all regular periodic reports filed by its with any
securities exchange or with the Securities and Exchange Commission.
4.4. Adverse Change. The Borrower shall promptly notify the Lead Lender
of any condition or event that constitutes, or with the lapse of time, the
giving of notice, or both, would constitute an Event of Default, and promptly
inform the Lead Lender of any material adverse change in the condition
(financial, business or otherwise) of the Borrower or any guarantor or surety of
the Liabilities.
SECTION 0.Xxxxxx of Default
The occurrence of any one or more of the following events ("Events of
Default") shall constitute an event of default hereunder:
5.1. Failure to Pay Interest of Principal. If the Borrower shall fail
to pay any interest or principal on any of the Liabilities, including, without
limitation, the Note and the Loan, when and as due and payable; or
5.2. Terms, Conditions, and Covenants of this Agreement. If the
Borrower shall fail to duly perform, comply with, or observe in any material
respect any of the other terms, conditions, or covenants contained in this
Agreement; or
5.3. Representations and Warranties. If any representation and warranty
or any statement or representation made in any report, opinion, schedule,
officer's certificate, or other certificate or any other information given by
the Borrower or furnished in connection with the Loan shall prove to be false or
incorrect in any material respect on the date as of which made; or
5.4. Default under Loan Documents. If an event of default (as described
or defined therein) shall occur or exist under the provisions of any of the
other Loan Documents; or
5.5. Default under Other Obligations. If any obligation of the Borrower
to the Lead Lender (other than the Liabilities) for the payment of borrowed
money becomes or is declared to be due and payable prior to the expressed
maturity thereof and the time of payment is not extended by the Lead Lender; or
5.6. Bankruptcy, Insolvency. If the Borrower becomes insolvent or
generally does not pay its debts as they become due, or if a petition for relief
in a bankruptcy court is filed by the Borrower and remains undismissed for sixty
(60) days, or if the Borrower applies for, consents to, or acquiesces in the
appointment of a trustee, custodian, or receiver for the Borrower or any of its
assets and property, or makes a general assignment for the benefit of creditors;
or, in the absence of such application, consent, or acquiescence, a trustee,
custodian, or receiver is appointed for the Borrower or for a substantial part
of the assets and property of the Borrower and is not discharged within thirty
(30) days; or any bankruptcy, reorganization, debt arrangement or any other
proceeding or case under any bankruptcy or insolvency law or any dissolution or
liquidation proceeding is instituted against the Borrower, and if instituted
against the Borrower and is consented to or acquiesced in by the Borrower or
remains undismissed for sixty (60) days; or the Borrower takes any action to
authorize any of the actions described in this subsection; or
5.7. Adverse Change. If the Lead Lender determines in good faith that a
material adverse change has occurred in the financial condition of the Borrower
from the financial conditions set forth in the most recent financial statement
furnished to the Lead Lender, or from the financial condition of the Borrower
most recently disclosed to the Lead Lender in any manner; or
5.8. Prospect of Payment. If the Lead Lender determines in good faith
that the prospect of payment of any of the Liabilities is impaired.
SECTION 6. Rights and Remedies.
The occurrence or non-occurrence of an Event of Default under this
Agreement shall in no way affect or condition the right of the Lead Lender to
demand payment at any time of any of the Liabilities which are payable on demand
regardless of whether or not such an Event of Default has occurred. If any one
or more Events of Default shall occur, then in each and every such case, the
Lead Lender at its option may at any time thereafter exercise and/or enforce any
or all of the following rights and remedies:
6.1. Commitment. Terminate its Loan Commitment.
6.2. Acceleration. Declare without notice to the Borrower all of the
Liabilities to be immediately due and payable, whereupon the same shall become
due and payable, together with accrued and unpaid interest thereon, without
presentment, demand, protest, or notice, all of which the Borrower hereby
waives.
6.3. Exercise of Rights and Remedies. Exercise any rights and remedies
available to the Lead Lender under this Agreement, the Note, the other Loan
Documents, and other applicable laws.
6.4. Liquidation Costs. The Borrower shall reimburse and pay to the
Lead Lender upon demand reasonable all costs and expenses (the "Liquidation
Costs"), including, without limitation, attorneys' fees and expenses, advanced,
incurred by, or on behalf of the Lead Lender in collecting and enforcing the
Liabilities and/or the Loan Documents.
6.5. Remedies Cumulative. Each right, power, and remedy of the Lead
Lender as provided for in this Agreement or in the other Loan Documents or now
or hereafter existing at law or in equity or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power,
or remedy provided for in this Agreement or in the other Loan Documents or now
or hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by the Lead Lender of any one or more of
such rights, powers, or remedies shall not preclude the simultaneous or later
exercise by the Lead Lender of any or all such other rights, powers, or
remedies.
6.6. No Waiver. No failure or delay by the Lead Lender to insist upon
the strict performance of any term, condition, covenant, or agreement of this
Agreement or of any of the other Loan Documents, or to exercise any right, power
or remedy consequent upon a breach thereof, shall constitute a waiver of any
such term, condition, covenant or agreement or of any such breach, or preclude
the Lead Lender from exercising any such right, power, or remedy at any later
time or times. By accepting payment after the due date of any amount payable
under this Agreement, the Note or any of the other Loan Documents, the Lead
Lender shall not be deemed to waive the right either to require prompt payment
when due on all other amounts payable under this agreement, under the Note or
any of the other Loan Documents or to declare an Event of Default for failure to
effect such prompt payment of any such other amount.
6.7. Accounts and Setoff. The Borrower grants to the Lead Lender as
security for the full and punctual payment and performance of the Liabilities, a
continuing lien on and security interest in all now or hereafter existing
balances, credits, accounts, deposits (general or special, time or demand,
provisional or final) and all other sums credited by, maintained with or due
from the Lead Lender or any affiliate of the Lead Lender (including Infotech AG,
Air-Vac Engineering, Inc, and Zevac AG) that has a participation interest in the
Loan to the Borrower or subject to withdrawal by the Borrower; and regardless of
the adequacy of any collateral or other means of obtaining repayment of the
Liabilities, the Lead Lender may at any time and without notice to the Borrower
set off against any and all of the Liabilities the whole or any portion or
portions of any or all balances, credits, accounts, deposits and other sums owed
by Borrower to Lead Lender or to any affiliate of the Lead Lender (including
Infotech AG, Air-Vac Engineering, Inc, and Zevac AG) that has a participation
interest in the Loan.
SECTION 7. Miscellaneous.
7.1. Survival. All covenants, agreements, representations, and
warranties made herein and in any other instruments or documents delivered
pursuant hereto shall survive the execution and delivery of the Note and shall
continue in full force and effect so long as any of the Liabilities are
outstanding and unpaid.
7.2. Notices. All notices, demands, requests, consents, or approvals
required under this Agreement to be made in writing shall be deemed to have been
properly given if and when mailed by first class certified mail, return receipt
requested, postage prepaid, if to the Lead Lender at x/x Xxxxxxxx XX,
Xxxxxxxxxxxxxxxx 0, XX 0000 Xxxxxxxxx, Xxxxxxxxxxx, to the attention of Xxxxxx
Xxxxxx, and if to the Borrower at 000 Xxxx Xxxxxxx Xxx, Xxx Xxxx, Xxxxxxxxxx
00000, Attention: Chief Financial Officer, or at such other address as the
Borrower or the Lead Lender shall have furnished to the other in writing.
7.3. Change. Neither this Agreement nor any term, condition,
representation, warranty, covenant, or agreement hereof may be changed, waived,
discharged, or terminated orally but only by an instrument in writing by the
party against whom such change, waiver, discharge, or termination is sought.
7.4. Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of North Carolina, without
regard to the principles of choice of laws or conflict of laws.
7.5. Terms Binding. All of the terms, conditions, stipulations,
warranties, representations, and covenants of this Agreement shall apply to and
be binding upon, and shall inure to the benefit of, the Borrower and the Lead
Lender and each of their respective heirs, personal representatives, successors,
and assigns.
7.6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
7.7. Consent to Jurisdiction; Service of Process. The Borrower hereby
agrees and consents that any action or proceeding arising out of or brought to
enforce the provisions of this Agreement and/or any of the other Loan Documents
may be brought in any appropriate court in the State of North Carolina or in any
other court having jurisdiction over the subject matter, all at the sole
election of the Lead Lender, and by the execution of this Agreement the Borrower
irrevocably consents to the jurisdiction of each such court.
7.8. Further Assurances and Corrective Instruments. The parties hereto
agree that they will, from time to time, execute and deliver, or cause to be
executed and delivered, such supplements hereto and such further instruments as
may reasonably be required for carrying out the intention of the parties to, or
facilitating the performance of, this Agreement.
7.9. Estoppel Certificate. The Borrower will, upon not less than ten
(10) business days' request by the Lead Lender or any other party to this
transaction, execute, acknowledge, and deliver to such person a statement in
writing, certifying (a) that this Agreement is unmodified and in full force and
effect and the payments required by this Agreement to be paid by the Borrower as
of the date of such statement have been paid, and (b) the then unpaid principal
balance of the Note; and stating whether or not to the knowledge of the signer
of such certificate any party to any of the Loan Documents is in default in the
performance of any covenant, agreement, or condition contained therein and, if
so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant to this section may be
relied upon by the Lead Lender and the other parties to this transaction.
7.10 Entire Agreement. Except for (a) the other Loan Documents, or (b)
any other document or agreement to the extent specifically provided therein; (i)
this agreement shall completely and fully supercede all other prior agreements,
both written and oral, by and among the Borrower, the Lead Lender and the other
parties to this transaction (and any prior agreements by and between any two or
more of the foregoing) relating to the Liabilities, and (ii) none of the parties
to this Agreement shall hereafter have any rights thereunder, but shall look
solely to this Agreement and the other Loan Documents for definitions and
determination of all of their respective rights, obligations, and
responsibilities relating to the Liabilities.
7.11. Illegality. If fulfillment of any provision hereof or any
transaction related hereto or to the other Loan Documents at the time
performance of such provisions shall be due shall involve transcending the limit
of validity prescribed by law, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity; and if any clause or provision
herein contained operates or would prospectively operate to invalidate this
Agreement in whole or in part, then such clause or provision only shall be void,
as though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect; provided, however, that, if any such
provision pertains to the repayment of the Liabilities, the occurrence of any
such invalidity shall constitute an Event of Default.
7.12. Assignment. This Agreement and the other Loan Documents may not
be assigned, in whole or in part, by the Borrower without the prior written
consent of the Lead Lender.
7.13. Participation. Lead Lender from time to time: (a) may sell a
participation interest in all or any portion(s) of the rights, powers,
privileges, remedies and interest of and/or the Loan and other obligations owed
to Lead Lender under this Agreement, the Note and the Loan Documents to any
other person; (b) may furnish and disclose financial statements, documents and
other information pertaining to the Borrower to any potential participant
subject to confidentiality obligations upon the recipient; and (c) may take any
and all other actions that Lead Lender in its sole discretion determines to be
necessary or appropriate in connection with any such participation, without
notice to or consent of the Borrower or any other person. Lead Lender
anticipates selling participation interests to third parties. The parties hereto
intend the benefits of this Agreement to inure to such participants. These third
party participants will be third party beneficiaries of Lead Lender's rights
under this Agreement.
IN WITNESS WHEREOF, the Lead Lender and the Borrower have each caused
this Agreement to be executed in duplicate counterparts and under seal as of the
day and year first written above.
LEAD LENDER:
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx, Individually
BORROWER:
ADEPT TECHNOLOGY, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxx,
Chief Executive Officer
[Signature Page to Loan Agreement]
EXHIBIT A
PROMISSORY NOTE
Raleigh, N.C.
$800,000 August 30, 2002
FOR VALUE RECEIVED, ADEPT TECHNOLOGY, INC., a California corporation
("Borrower"), promises to pay to the order of Xxxxxx Xxxxxx ("Lead Lender") ,
the principal sum of Eight Hundred Thousand Dollars ($800,000), or such lesser
amount as may be outstanding, together with interest on the unpaid outstanding
principal balance at the rate per annum of one percent (1%) plus the prime rate
as published by the Wall Street Journal from time to time, on the unpaid balance
until paid or until default, both principal and interest payable in U.S. Dollars
to Lead Lender at Solothurn, Switzerland, or at such place as the legal holder
hereof may designate in writing.
Accrued interest shall be paid annually by Borrower on the first
anniversary and each successive anniversary of this Note. If not sooner paid,
the entire indebtedness shall be due and payable on August 30, 2006. Interest
shall be calculated from the date of each advance until repayment by Borrower of
each advance.
This Note is given pursuant to the terms of a Loan Agreement dated as
of August 30, 2002, by and between Borrower and Lead Lender ("Loan Agreement").
Borrower shall deliver to the Lead Lender certificates for registered
shares of Borrower common stock as provided in the Stock Issuance Agreement
between Borrower and Lead Lender dated as of the date hereof, attached hereto as
Exhibit A and incorporated herein by reference.
Disbursements under this Note shall be made as provided in the Loan
Agreement. Unless otherwise provided, this Note may be prepaid in full or in
part at any time without penalty or premium. Partial prepayments shall be
applied to installments due in reverse order of their maturity. Payments will be
applied first to payment of interest then accrued and due on the unpaid
principal balance, with the remainder applied to the unpaid principal.
In the event of: (a) default in payment of any installment of principal as the
same becomes due and such default is not cured within ten (10) days from the due
date, or (b) default under the terms of any instrument securing this Note, and
such default is not cured within fifteen (15) days after written notice to
maker, then in either such event the holder may without further notice, declare
the remainder of the principal sum, at once due and payable. Failure to exercise
this option shall not constitute a waiver of the right to exercise the same at
any other time. The unpaid principal of this Note and any part thereof, accrued
interest and all other sums due under this Note, if any, shall bear interest at
the rate of fifteen per cent (15%) per annum after default which remains uncured
after the ten (10) day period referenced above until paid. The interest payable
under the terms of this Note shall not exceed the maximum amount allowed under
applicable law. If interest would otherwise be payable to Lead Lender in excess
of the maximum lawful amount, the interest payable to Lead Lender shall be
reduced to the maximum amount permitted under applicable law.
All parties to this Note, including maker and any sureties, endorsers,
or guarantors hereby waive protest, presentment, notice of dishonor, and notice
of acceleration of maturity and agree to continue to remain bound for the
payment of principal, interest and all other sums due under this Note
notwithstanding any change or changes by way or release, surrender, exchange,
modification or substitution of any security for this Note or by way of any
extension or extensions of time for the payment of principal and interest.
Upon default the holder of this Note may employ an attorney to enforce
the holder's rights and remedies and Borrower hereby agrees to pay to Lead
Lender the reasonable costs of enforcement incurred by Lead Lender in exercising
any of the Lead Lender's rights and remedies upon default, including but not
limited to attorney's fees and costs of court, and not exceeding a sum equal to
fifteen percent (15%) of the outstanding balance owing on said Note. The rights
and remedies of the Borrower as provided in this Note and in the Loan Agreement
shall be
cumulative and may be pursued singly, successively, or together. The failure to
exercise any such right or remedy shall not be a waiver or release of such
rights or remedies or the right to exercise any of them at another time.
This Note is to be governed and construed in accordance with the laws
of the State of North Carolina without regard to its principles of choice of
laws or conflict of laws.
IN TESTIMONY WHEREOF, Borrower has caused this instrument to be
executed in its corporate name by its Chief Executive Officer, all by order of
its Board of Directors first duly given, the day and year first above written.
ADEPT TECHNOLOGY, INC.
By:______________________________________
Xxxxx Xxxxxxxx, Chief Executive Officer
EXHIBIT A
(To Promissory Note)
STOCK ISSUANCE AGREEMENT
THIS STOCK ISSUANCE AGREEMENT (this "Agreement") is entered into as of
_____________, 2002, by and among Adept Technology, Inc., a California
corporation ("Borrower"), and Xxxxxx Xxxxxx, a resident of Solothurn,
Switzerland ("Lead Lender").
RECITALS
Borrower and the Lead Lender are parties to that certain Loan
Agreement, dated as of the date hereof (the "Loan Agreement") providing for a
loan (the "Loan"), in consideration for which, Borrower has agreed to issue to
the Lead Lender, shares of Borrower's common stock, no par value per share (the
"Borrower Common Stock") on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and agreements in the Loan Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Borrower and the Lead Lender hereby agree as follows:
1. Issuance of Borrower Common Stock. In consideration of making the
Loan Commitment contemplated in the Loan Agreement (as an origination fee),
promptly upon execution hereof, Borrower shall issue to the Lead Lender an
aggregate of one hundred thousand (100,000) restricted shares of Borrower Common
Stock (the "Shares") subject to cancellation rights hereunder. The Shares shall
be retained by Borrower for the benefit of the Lead Lender and shall be
delivered to the Lead Lender or its designee(s) in accordance with the terms of
this Agreement and the Loan Agreement.
2. Delivery of Shares to Lead Lender.
(a) Upon each disbursement of proceeds of the Loan to
Borrower, Borrower shall promptly deliver to the Lead Lender or its designee(s)
as directed by the Lead Lender certificates for a number of Shares determined to
be 25,000 minus the number of Shares cancelled pursuant to an exercise of the
cancellation right of Borrower set forth hereunder. With each disbursement of
the proceeds of the Loan to the Borrower or election by the Borrower not to
borrow any amounts with respect to such three-month period, Borrower may cancel
the restricted shares issued hereunder in an amount determined by the following
formula: (X) 25,000 minus (Y) the product of: (i) a fraction, (A) the numerator
of which is the amount of proceeds to be disbursed to Borrower in such
disbursement, and (B) the denominator of which is Two Hundred Thousand Dollars
($200,000) and (ii) twenty-five thousand (25,000) shares. The maximum number of
Shares deliverable to the Lead Lender upon lapse of such cancellation rights for
each three-month period shall be twenty-five thousand (25,000), with an
aggregate maximum for all four consecutive three-month periods of One Hundred
Thousand (100,000) shares. No fractional shares shall be issued or delivered
pursuant to this Agreement, so Shares deliverable shall be rounded down to the
nearest Share.
(b) Upon exercise of Borrower's cancellation rights hereunder,
the corresponding proportion of the Shares cancelled by Borrower for that
three-month period and not delivered to the Lead Lender or its designee(s) shall
be cancelled by Borrower and the Lead Lender or its designee(s) shall not have
any further right, title or interest in such Shares. This Agreement and the Loan
Agreement contemplate that the Lead Lender shall not have the obligation to
disburse proceeds more than once in any three-month period.
(c) The Lead Lender shall instruct Borrower with respect to
the physical delivery of Shares for which cancellation rights have lapsed
pursuant to this Section 2. Borrower shall be entitled to rely on the
instructions
provided by the Lead Lender, and Borrower shall incur no liability and shall be
fully protected from any liability whatsoever in acting in accordance with such
instructions received from the Lead Lender.
3. Status of Shares Prior to Delivery. Borrower shall issue, hold and
safeguard the Shares prior to delivery in trust in accordance with the terms of
this Agreement and the Loan Agreement and not as the property of Borrower and
shall deliver such Shares to the Lead Lender or its designee(s) only in
accordance with the terms hereof. The Lead Lender shall have voting rights with
respect to the Shares prior to lapse of Borrower's cancellation rights (and on
any new Shares added to the shares held by Borrower in respect of such shares).
Any regular cash dividends or liquidation proceeds on the Shares held by
Borrower (including the new Shares) shall be paid directly to the Lead Lender.
4. Registration of Shares. The Shares shall be subject to the
registration rights set forth in the Merger Agreement among Borrower, Meta
Control Technologies, Inc., a Delaware corporation ("Meta") and the other
parties therein, which is being approved by the Lead Lender as a stockholder of
Meta, and the terms of Section 5.3 regarding registration rights are
incorporated by reference herein, provided, however, that the obligation of Lead
Lender to make disbursements under the Loan Agreement shall be subject to the
prior registration of the Shares under the Securities Act of 1933, as amended
(the "Act") and delivery of certificates pursuant to Section 2(a) herein,
provided that all delivery information for such certificates has been promptly
furnished to the Borrower by Lead Lender pursuant to Section 2.3 of the Loan
Agreement.
5. Securities Act Exemption. The Shares issued pursuant to this
Agreement initially will not be registered under the Act, in reliance on the
exemption set forth in Section 4(2) thereof. The Lead Lender shall have provided
Borrower such information regarding its financial and investment background and
investment intent as Borrower may reasonably request to ensure the availability
of an exemption from the registration requirements of the Act.
6. Lead Lender Representations. The Lead Lender represents and warrants
to Borrower as follows:
(a) The Lead Lender acknowledges that it has been provided
with such information regarding Borrower necessary for the purposes of making an
investment decision with respect to the Shares, and has been provided the
opportunity to discuss the business, affairs and current prospects of Borrower
with Borrower's representatives. The Lead Lender further acknowledges having had
access to information about Borrower that it has requested.
(b) The Shares will be acquired for the Lead Lender's own
account for investment, and not with a view to or in connection with the sale or
distribution of any part thereof.
(c) The Lead Lender understands that (a) the Shares initially
will not be registered under the Act, on the ground that the issuance of the
Shares provided for in this Agreement is exempt from registration under the Act;
(b) that the reliance of Borrower on such exemption is predicated in part on the
Lead Lender's representations set forth in this Agreement; (c) the Shares being
issued hereunder are "restricted securities": within the meaning of Rule 144
under the Act; and (d) that the Shares are not registered and must be held
indefinitely unless they are subsequently registered pursuant to the
registration rights provided in the Merger Agreement or otherwise or an
exemption from such registration is available.
(d) The Lead Lender represents that by reason of its (or its
management's) business or financial experience, the Lead Lender has the capacity
to protect its own interests in connection with the transactions contemplated by
this Agreement. Further, the Lead Lender is aware of no publication of any
advertisement in connection with the transactions contemplated in the Agreement.
The Lead Lender is an "accredited investor" within the meaning of Securities and
Exchange Commission Rule 501 of Regulation D, as presently in effect, under the
Act.
7. Stock Restrictions. In addition to any legend imposed by applicable
state securities laws, the certificates representing the Shares issued pursuant
to this Agreement shall bear a restrictive legend (and stop
transfer orders shall be placed against the transfer thereof with Borrower's
transfer agent), stating substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED, OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT, OR A NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION.
8. Notices Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be conclusively deemed to have been duly given (a) when
hand delivered to the other party; (b) when sent by facsimile at the address and
number set forth below; (c) three (3) business days after deposit in the U.S.
mail with first class or certified mail receipt requested postage prepaid and
addressed to the other party as set forth below (or ten (10) business days if
sent by U.S. mail outside the United States); or (d) the next business day after
deposit with a national overnight delivery service, postage prepaid, addressed
to the parties as set forth below with next-business-day delivery guaranteed.
if to Borrower, to:
Adept Technology, Inc.
000 Xxxx Xxxxxxx Xxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to a Lead Lender, to:
Xxxxxx Xxxxxx
x/x Xxxxxxxx XX
Xxxxxxxxxxxxxxxx 0
XX 0000 Xxxxxxxxx
Xxxxxxxxxxx
Attn: Xxxxxx Xxxxxx
Telephone: 000-00-00-000-0000
Facsimile: 011-41-32-621-4782
A party may change or supplement the addresses given above, or
designate additional addresses for purposes of this Section 8 by giving the
other parties written notice of the new address in the manner set forth above.
9. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
10. Entire Agreement; Assignment. This Agreement and the documents and
instruments and other agreements among the parties hereto referenced herein: (a)
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof;
(b) are not intended to confer upon any other person any rights or remedies
hereunder; and (c) shall not be assigned by the Lead Lender by operation of law
or otherwise except with the prior written consent of the Borrower; provided,
that any person into which Borrower may be merged or converted or with which it
may be consolidated or any person resulting from any merger, conversion or
consolidation to which it shall be a party or any person to which Borrower may
sell or transfer all or substantially all of its assets shall be the successor
hereunder to Borrower without the consent of any party hereto, or the execution
or filing of any paper or any further act. As used in this Agreement, the term
"person" means any individual, partnership, corporation, association, joint
stock company, trust, joint venture, unincorporated organization or Governmental
Entity (or any department, agency or political subdivision thereof)
11. Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
13. Adjustments. All references to the number of shares of Borrower
Common Stock in this Agreement shall be appropriately adjusted to reflect any
stock split, stock dividend, merger or other similar change in the Borrower's
capitalization which may occur after the effective date of this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Borrower and the Lead Lender have caused this Stock
Issuance Agreement to be signed as of the date first written above.
ADEPT TECHNOLOGY, INC.
a California corporation
By: __________________________________________
Xxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
______________________________________________
Xxxxxx Xxxxxx
[Signature Page to Stock Issuance Agreement]
