EXHIBIT 10.16
LOAN AGREEMENT A
THIS LOAN AGREEMENT (the "Agreement") is entered into as of this 1st day of
August, 1997 by and between ASYST TECHNOLOGIES, INC., a California corporation
(the "Company"), and XXXXX XXXXXXX ("Employee").
WHEREAS, Employee has relocated to California to serve as the Company's
Chief Operating Officer and President;
WHEREAS, Employee has requested that the Company lend Employee Two Hundred
Thousand Dollars ($200,000.00) for the purpose of assisting Employee's purchase
of a new principal residence due to Company's transfer of Employee to a new
principal place of work (within the meaning of Section 217(c) of the Internal
Revenue Code of 1986, as amended (the "Code"))
WHEREAS, the Company and Employee desire that the loan be exempt from
Section 7872 of the Code; and
WHEREAS, the Company has agreed to provide Employee with the loan as
additional consideration for Employee's services to the Company, which Company
and Employee agree is a business or commercial purpose for making the loan.
NOW THEREFORE, the parties hereto agree as follows:
1. LOAN. The Company shall lend Employee a total of Two Hundred Thousand
Dollars ($200,000.00) (the "Loan") upon the terms and conditions contained
herein. The Loan shall be made on August 1st, 1997.
2. CONDITION ON LOAN FOR PRINCIPAL RESIDENCE. The Loan shall be used only
to purchase the new principal residence of Employee (the "Property").
3. INTEREST. The Loan shall bear interest at a rate of four percent (4%)
per annum, compounded annually for as long as you are an employee of the
Company. Thereafter the Loan shall bear interest at a fixed rate of six and
thirty-nine hundredths percent (6.39%) per annum or the maximum rate permitted
by law, whichever is less, provided however that the interest rate shall not be
less than the rate necessary to avoid the application of Code Section 7872.
4. PROMISSORY NOTE. The Loan shall be made pursuant to a promissory note
in the form attached hereto as Exhibit A (the "Note"). Employee shall execute
the Note concurrently with the execution of this Agreement. All repayments of
principal and interest with respect to the Loan shall be evidenced by notations
made by the Company on the Note; provided, however, that the failure by the
Company to make such notations shall not limit or otherwise affect the
obligations of Employee with respect to the repayments of principal or payments
of interest (if any) on the Loan.
5. DEED OF TRUST WITH ASSIGNMENTS OF RENTS. Employee hereby agrees to
secure the Loan pursuant to a second Deed of Trust on the Property in the form
attached hereto
as Deed of Trust With Assignment of Rents, which Deed of Trust shall be executed
concurrently herewith by Employee and Employee's spouse.
6. METHOD OF FUNDING. The Loan proceeds shall be advanced by check from
the Company to Employee, which check shall be separate from Employee's regular
paycheck.
7. CONDITION ON FUTURE EMPLOYMENT. The Loan is conditioned on the future
performance of substantial services by Employee.
8. ITEMIZATION OF DEDUCTIONS. Employee certifies to the Company that
Employee reasonably expects to be entitled to and will itemize deductions for
each year the Loan is outstanding.
9. REPAYMENT OF LOAN. The total outstanding principal amount and interest
amount of the Loan shall become immediately due and payable in a single payment
immediately upon the occurrence of any one or more of the following (the
"Maturity Date"):
a. September 1, 2002;
b. The nintieth (90th) day following the date of termination of
Employee's employment with the Company for any reason;
c. Employee defaults in the payment of principal or interest when due
or any other default occurs under Employee's first mortgage or deed of trust on
the Property, which default, with the passage of time or otherwise, would allow
the lender thereunder to accelerate the payment of principal or interest or
foreclose on the Property;
d. The thirtieth (30th) day following the date of a sale of stock
described in Section 10 below if the Company has not received the payment
required under Section 10 by that date;
e. The insolvency of Employee, including but not limited to a
bankruptcy or insolvency proceeding having been instituted by or against him, or
the appointment of a receiver for his property, or an assignment of his assets
for the benefit of creditors; or
f. Sale or transfer of any interest in the Property.
10. PREPAYMENT. The Employee may prepay the unpaid principal in whole or
in part, without penalty, at any time, upon the payment of all unpaid interest
accrued to the date of such prepayment.
11. NON-TRANSFERABLE. The right of Employee to request and receive the
Loan hereunder, as well as the benefits of the interest arrangement under this
Agreement, shall not be assignable or otherwise transferable by Employee.
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12. GENERAL PROVISIONS.
a. This Agreement shall be governed by the laws of the State of
California applicable to contracts made and performed in such state, without
regard to principles of conflicts of laws.
b. Nothing in this Agreement shall affect in any manner whatsoever
the right or power of the Company, or a parent, subsidiary or successor of the
Company, to terminate Employee's employment for any reason or no reason, with or
without cause, or to entitle Employee to any employment, position or title with
the Company.
c. This Agreement (including the Note and Deed of Trust referred to
herein) contains the entire agreement between Employee and the Company on the
terms of this loan, and is the complete, final, and exclusive embodiment of
their agreement with regard to this loan. Employee and the Company each
acknowledge and represent that this Agreement is entered into without reliance
on any promise or representation other than those expressly contained herein and
that this Agreement cannot be modified except in a writing signed by both
parties.
d. Except as otherwise specified herein, any notice, demand or request
required or permitted to be given by either the Company or Employee pursuant to
the terms of this Agreement shall be in writing and shall be deemed given when
delivered personally, three days after being deposited in the U.S. Mail,
registered mail, return receipt requested, postage prepaid, or one business day
after delivery to an overnight carrier service and addressed to the Company at
its then current principal office and to Employee at the address listed for him
on the Company's payroll records.
e. Either party's failure to enforce any provision or provisions of
this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, nor prevent that party thereafter from enforcing each
and every other provision of this Agreement. The rights granted both parties
herein are cumulative and shall not constitute a waiver of either party's right
to assert all other legal remedies available to it under the circumstances.
f. Employee agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purpose or intent of this
Agreement.
g. In the event of any litigation concerning this Agreement, the
prevailing party shall be entitled to a reasonable sum for attorneys' fees,
costs, and litigation expenses, whether or not such action is prosecuted to
judgment. "Prevailing Party" includes without limitation a party who agrees to
dismiss an action upon payment by the other party of sums
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allegedly due or performance of the covenants allegedly breached, or who obtains
substantially the relief sought by that party. In the event that the Company is
the Prevailing Party, the Company shall also be entitled to reasonable costs
associated with the collection of the Loan.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first set forth above.
ASYST TECHNOLOGIES, INC.
a California corporation
By: /s/ Xxxxxxx X. XxXxxxxxxx /s/ Xxxxx X. Xxxxxxx
------------------------- --------------------------
Xxxxx Xxxxxxx
Title: Senior Vice President
---------------------
Chief Financial Officer
-----------------------
Exhibits:
A - Promissory Note Secured by Deed of Trust
B - Short Form Deed of Trust and Assignment of Rents (Individual)
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DO NOT DESTROY THIS NOTE: WHEN PAID, THIS NOTE AND DEED OF
TRUST SECURING IT MUST BE SURRENDERED TO TRUSTEE FOR
CANCELLATION BEFORE RECONVEYANCE WILL BE MADE.
PROMISSORY NOTE SECURED
BY DEED OF TRUST
Dated: August 1st, 1997
FOR VALUE RECEIVED, Xxxxx Xxxxxxx ("Maker"), unconditionally promises to pay
Asyst Technologies, Inc. ("Holder") or order, at 00000 Xxxx Xxxx, Xxxxxxx,
Xxxxxxxxxx 00000 or such other place as Holder may from time to time designate,
in lawful money of the United States, the principal sum of TWO HUNDRED THOUSAND
DOLLARS ($200,000.00), together with interest, if any, and any amounts due
thereon, payable in the manner set forth below. All capitalized terms used
herein and not defined shall have the same meaning as in the Loan Agreement.
This Promissory Note is the Note referred to in and is executed and delivered
in connection with that certain Loan Agreement dated as of even date herewith,
by and between Borrower and Lender (as the same may from time to time be
amended, modified or supplemented, the "Security Agreement"). All terms defined
in the Security Agreement shall have the same definitions when used herein,
unless otherwise defined herein.
1. PAYMENT OF PRINCIPAL AND INTEREST. The principal and interest shall be
discharged at the times and in the manner set forth in the Loan Agreement of
even date between Maker and Holder.
2. SECURITY. This Note is secured by a second deed of trust herewith from
Maker and wife as trustor, naming Holder as beneficiary (the "Deed of Trust"),
granting a security interest in certain real property located in the City of
Saratoga, County of Santa Clara, California, as more particularly described
therein (the "Property"). Maker hereby represents and warrants that, as of the
date hereof (a) he and wife are the sole and lawful fee owner of the Property
and (b) the fair market value of the Property exceeds the aggregate amount of
all indebtedness secured by liens upon the Property.
3. PLACE OF PAYMENT. All amounts payable hereunder shall be payable at the
office of Holder, unless another place of payment shall be specified in writing
by Holder.
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4. DEFAULT AND REMEDIES.
a. DEFAULT. Maker will be in default under this Note if (i) Maker fails
to make any payment required under the Loan Agreement or this Note when due,
(ii) Maker breaches any other covenant or agreement under this Note, or (iii)
Maker is in default of its obligations under the Deed of Trust, Loan Agreement
or any other instrument securing or evidencing this Note.
b. REMEDIES. Upon Maker's default, Holder may (i) upon written notice to
Maker, declare the entire principal sum immediately due and payable and (ii)
exercise any and all of the remedies provided under the Deed of Trust or at law
or in equity.
c. DEFAULT INTEREST. If any amount payable hereunder shall not be paid
within ninety (90) days after the Maturity Date, at the option of Holder, the
unpaid principal balance and accrued and unpaid interest thereon, shall
immediately begin to accrue interest at a rate of six and thirty-nine hundredths
percent (6.39%) or if less, the maximum interest rate then permitted by law,
provided however that the interest rate shall not be less than the rate
necessary to avoid the application of Section 7872 of the Internal Revenue Code
of 1986, as amended, and Holder shall have all remedies available to it by law
as a creditor hereunder.
5. WAIVERS. Maker, and any endorsers or guarantors hereof, severally waive
diligence, presentment, protest and demand and also notice of protest, demand,
dishonor, acceleration, intent to accelerate, and nonpayment of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time without notice, and consent to the acceptance of further security
or the release of any security for this Note, all without in any way affecting
the liability of Maker or any endorsers or guarantors hereof. No extension of
time for the payment of this Note, or any installment hereof, agreed to by
Holder with any person now or hereafter liable for the payment of this Note,
shall affect the original liability of Maker under this Note, even if Maker is
not a party to such agreement.
6. NOTICE. All notices or other communications required or given hereunder
shall be in writing and shall be deemed effectively given when presented
personally or on the date of receipt if sent by courier service or U.S. Mail
(certified or registered, postage prepaid, return receipt requested) to the
parties at the addresses given below or such other addresses as the parties may
hereafter designate in writing. The date shown on the courier's confirmation of
delivery or return receipt shall be conclusive as to the date of receipt.
Maker: Xxxxx Xxxxxxx
Asyst Technologies, Inc.
00000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
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Holder: Asyst Technologies, Inc.
00000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
7. MISCELLANEOUS.
a. Maker shall pay all costs, including, without limitation, reasonable
attorneys' fees incurred by Holder in collecting the sums due hereunder.
b. This Note may be modified only by a written agreement executed by
Maker and Holder.
c. This Note shall be governed by California law, excluding conflict of
laws principles that would cause the application of laws of any other
jurisdiction.
d. The terms of this Note shall inure to the benefit of and bind Maker
and Holder and their respective heirs, legal representatives and successors and
assigns.
e. Time is of the essence with respect to all matters set forth in this
Note.
f. If this Note is destroyed, lost or stolen, Maker will deliver a new
note to Holder on the same terms and conditions as this Note with a notation of
the unpaid principal in substitution of the prior Note. Holder shall furnish to
Maker reasonable evidence that the Note was destroyed, lost or stolen and any
security or indemnity that may be reasonably required by Maker in connection
with the replacement of this Note.
g. If any provision of this Note shall be held to be invalid or
unenforceable, such determination shall not affect the remaining provisions of
this Note.
h. If this Note is now, or hereinafter shall be, signed by more than one
party or person, it shall be the joint and several obligation of such parties or
persons and shall be binding upon such parties and upon their respective
successors and assigns.
i. In the event of any litigation concerning this Agreement, the
prevailing party shall be entitled to a reasonable sum for attorneys' fees,
costs, and litigation expenses, whether or not such action is prosecuted to
judgment. "Prevailing Party" includes without limitation a party who agrees to
dismiss an action upon payment by the other party of sums allegedly due or
performance of the covenants allegedly breached, or who obtains substantially
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the relief sought by that party. In the event that the Company is the Prevailing
Party, the Company shall also be entitled to reasonable costs associated with
the collection of the Loan.
This Note may be prepaid in whole or in part, at any time, without penalty or
premium, on any date prior to the Maturity Date.
IN WITNESS WHEREOF, Maker has executed this Note as of the date and year first
above written.
MAKER:
/s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx Xxxxxxx
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Schedule A
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TRANSACTIONS ON NOTE
Interest Interest
Date Paid To Paid Advances Payments Balance
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