Exhibit 10.2
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement is entered into as of
March 21, 2003 by and between SILICON VALLEY BANK ("Secured Party") and Adept
Technology, Inc. ("Grantor").
RECITALS
A. Secured Party and Grantor are parties to that certain Accounts
Receivable Purchase Agreement dated March 21, 2003 (as the same may be amended,
modified or supplemented from time to time, and individually and collectively,
the "Financing Agreement"; capitalized terms used herein which are not defined,
have the meanings set forth in the Financing Agreement).
B. Pursuant to the terms of the Financing Agreement, Grantor has
granted to Secured Party a security interest in all of Grantor's right, title
and interest, whether presently existing or hereafter acquired, in, to all or
substantially all personal property of Grantor, including without limitation the
below-defined IP Collateral (but only to the extent set forth therein and
herein).
NOW, THEREFORE, as collateral security for the payment and performance
when due of all of the Obligations, Grantor hereby grants, represents, warrants,
covenants and agrees as follows:
AGREEMENT
1. Grant of Security Interest. To secure all of the Obligations under
the Financing Agreement and any other agreements, instruments, or other
documents related to or executed in connection with the Financing Agreement
(collectively, the "Financing Documents") and subject to limitation set forth in
the last paragraph of this Section 1, Grantor grants and pledges to Secured
Party a security interest in all of Grantor's right, title and interest in, to
and under the following (collectively, the "IP Collateral"):
(a) All of present and future United States registered
copyrights and copyright registrations, including, without limitation, the
registered copyrights, maskworks, software, computer programs and other works of
authorship subject to United States copyright protection listed in Exhibit A to
this Agreement (and including all of the exclusive rights afforded a copyright
registrant in the United States under 17 U.S.C. ss.106 and any exclusive rights
which may in the future arise by act of Congress or otherwise) and all present
and future applications for copyright registrations (including applications for
copyright registrations of derivative works and compilations) (collectively, the
"Registered Copyrights"), and any and all royalties, payments, and other amounts
payable to Grantor in connection with the Registered Copyrights, together with
all renewals and extensions of the Registered Copyrights, the right to recover
for all past, present, and future infringements of the Registered Copyrights,
and all computer programs, computer databases, computer program flow diagrams,
source codes, object codes and all tangible property embodying or incorporating
the Registered Copyrights, and all other rights of every kind whatsoever
accruing thereunder or pertaining thereto.
(b) All present and future copyrights, maskworks, software,
computer programs and other works of authorship subject to (or capable of
becoming subject to) United States copyright protection which are not registered
in the United States Copyright Office (the "Unregistered Copyrights"), whether
now owned or hereafter acquired, and any and all royalties, payments, and other
amounts payable to Grantor in connection with the Unregistered Copyrights,
together with all renewals and extensions of the Unregistered Copyrights, the
right to recover for all past, present, and future infringements of the
Unregistered Copyrights, and all computer programs, computer databases, computer
program flow diagrams, source codes, object codes and all tangible property
embodying or incorporating the Unregistered Copyrights, and all other rights of
every kind whatsoever accruing thereunder or pertaining thereto. The Registered
Copyrights and the Unregistered Copyrights collectively are referred to herein
as the "Copyrights."
(c) All right, title and interest in and to any and all
present and future license agreements with respect to the Copyrights.
(d) All present and future accounts, accounts receivable,
royalties, payment intangibles, and other rights to payment arising from, in
connection with or relating to the Copyrights, Patents or Trademarks.
(e) All patents, patent applications and like protections
including, without limitation, improvements, divisions, continuations, renewals,
reissues, extensions and continuations-in-part of the same, including without
limitation the patents and patent applications set forth on Exhibit B attached
hereto (collectively, the "Patents");
(f) All trademark and servicemark rights, whether registered
or not, applications to register and registrations of the same and like
protections, and the entire goodwill of the business of Grantor connected with
and symbolized by such trademarks, including without limitation those set forth
on Exhibit C attached hereto (collectively, the "Trademarks");
(g) Any and all claims for damages by way of past, present and
future infringements of any of the rights included above, with the right, but
not the obligation, to xxx for and collect such damages for said use or
infringement of the rights identified above;
(h) All licenses or other rights to use any of the Copyrights,
Patents or Trademarks, and all license fees and royalties arising from such use
to the extent permitted by such license or rights;
(i) All amendments, extensions, renewals and extensions of any
of the Copyrights, Trademarks or Patents; and
(j) All proceeds and products of the foregoing, including
without limitation all payments under insurance or any indemnity or warranty
payable in respect of any of the foregoing, and all license royalties and
proceeds of infringement suits, and all rights corresponding to the foregoing
throughout the world and all re-issues, divisions, continuations, renewals,
extensions and continuations-in-part of the foregoing.
Anything herein to the contrary notwithstanding, Secured Party shall have a
security interest in the Copyrights, Patents, and Trademarks only to the extent
that a judicial authority (including
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without limitation a U.S. Bankruptcy Court) holds that a perfected security
interest in such Copyrights, Patents, or Trademarks is necessary to have a
perfected security interest in the proceeds thereof (including without
limitation proceeds consisting of accounts, accounts receivable, royalties,
payment intangibles, and other rights to payment arising from, in connection
with or relating to the IP Collateral).
2. Financing Agreement. This security interest is granted in
conjunction with the security interests granted to Secured Party under the
Financing Agreement. The rights and remedies of Secured Party with respect to
the security interest granted hereby are in addition to those set forth in the
Financing Agreement and any other Financing Documents, and those which are now
or hereafter available to Secured Party as a matter of law or equity. Each
right, power and remedy of Secured Party provided for herein or in the Financing
Agreement or any of the other Financing Documents, or now or hereafter existing
at law or in equity shall be cumulative and concurrent and shall be in addition
to every right, power or remedy provided for herein and the exercise by Secured
Party of any one or more of the rights, powers or remedies provided for in this
Agreement, the Financing Agreement or any of the other Financing Documents, or
now or hereafter existing at law or in equity, shall not preclude the
simultaneous or later exercise by any person, including Secured Party, of any or
all other rights, powers or remedies.
3. Covenants and Warranties. Grantor represents, warrants, covenants
and agrees as follows:
(a) Grantor has no present copyrights, maskworks, software,
computer programs and other works of authorship registered with the United
States Copyright Office except as disclosed on Exhibit A hereto.
(b) Grantor shall undertake all reasonable measures to cause
its employees, agents and independent contractors to assign to Grantor all
rights of authorship to any copyrighted material in which Grantor has or may
subsequently acquire any right or interest.
(c) Grantor shall promptly advise Secured Party of any
Trademark, Patent or Registered Copyright not specified in this Agreement, which
is hereafter acquired by Grantor.
(d) With respect to any copyrights, maskworks, software,
computer programs or other works of authorship subject to United States
copyright protection registered with the United States Copyright Office, Grantor
agrees to execute and file such other instruments, and take such further actions
as Secured Party may reasonably request from time to time to perfect or continue
the perfection of Secured Party's interest in the IP Collateral, including
without limitation the filing with the United States Copyright Office,
simultaneously with the filing by Grantor of the application for any such
registration, of a copy of this Agreement or a Supplement hereto in form
acceptable to Secured Party identifying the copyrights, maskworks, software,
computer programs or other works of authorship being registered and confirming
the grant of a security interest therein in favor of Secured Party.
4. General. If any action relating to this Agreement is brought by
either party hereto against the other party, the prevailing party shall be
entitled to recover reasonable attorneys fees, costs and disbursements. This
Agreement may be amended only by a written instrument signed by both parties
hereto. To the extent that any provision of this Agreement conflicts with any
provision of the Financing Agreement, the provision giving Secured Party greater
rights or
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remedies shall govern, it being understood that the purpose of this Agreement is
to add to, and not detract from, the rights granted to Secured Party under the
Financing Agreement. This Agreement, the Financing Agreement, and the other
Financing Documents comprise the entire agreement of the parties with respect to
the matters addressed in this Agreement. This Agreement shall be governed by the
laws of the State of California, without regard for choice of law provisions.
Grantor and Secured Party consent to the nonexclusive jurisdiction of any state
or federal court located in Santa Xxxxx County, California.
5. Waiver of Right to Jury Trial. SECURED PARTY and GRANTOR each hereby
waive the right to trial by jury in any action or proceeding based upon, arising
out of, or in any way relating to: (i) this Agreement; or (ii) any other present
or future instrument or agreement between SECURED PARTY and GRANTOR; or (iii)
any conduct, acts or omissions of SECURED PARTY or GRANTOR or any of their
directors, officers, employees, agents, attorneys or any other persons
affiliated with SECURED PARTY or GRANTOR; in each of the foregoing cases,
whether sounding in contract or tort or otherwise.
IN WITNESS WHEREOF, the parties have cause this Intellectual Property
Security Agreement to be duly executed by its officers thereunto duly authorized
as of the first date written above.
Address of Grantor: Grantor:
000 Xxxx Xxxxxxx Xxxxxxx Adept Technology, Inc.
Xxx Xxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President, Finance and CFO
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Name: Xxxxxxx X. Xxxxxx
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Address of Secured Party: Secured Party:
0000 Xxxxxx Xxxxx SILICON VALLEY BANK
Xxxxx Xxxxx, Xxxxxxxxxx 00000
By: /s/ Xxxxx Xxxxx
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Title: Vice President
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