EXHIBIT 10.17
LOAN AGREEMENT B
THIS LOAN AGREEMENT (the "Agreement") is entered into as of the 1st day of
August, 1997 by and between ASYST TECHNOLOGIES, INC. (the "Company"), and XXXXX
XXXXXXX ("Employee"). This Agreement is separate and distinct from that certain
Loan Agreement A by and between the Company and Employee and dated August 1,
1997.
WHEREAS, Employee has agreed to serve as Chief Operating Officer and
President of the Company; and
WHEREAS, Employee has requested that the Company loan Employee One Hundred
Eighty Thousand Dollars ($180,000) for the purpose of facilitating Employee's
relocation to California; and
WHEREAS, the Company has agreed to provide Employee with the loan in
exchange for Employee's services as an employee of the Company and other
valuable consideration;
NOW THEREFORE, the parties hereto agree as follows:
1. THE "LOAN." The Company shall loan Employee a total of One Hundred
Eighty Thousand Dollars ($180,000) while he is actively employed by the Company.
2. INTEREST. The rate of interest shall be 6.39% per annum, compounded
annually.
3. 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. The Loan and all
repayments of principal 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 on the Loan.
4. TAXES. All taxes resulting from this Agreement are to be the sole
responsibility of Employee, and Employee agrees to pay to the Company in cash or
check an amount equal to any withholding obligation imposed on the Company by
reason of this Agreement.
5. COLLATERAL; PLEDGE AGREEMENT. The Loan will be secured by a pledge of
all shares of the Company's stock which Employee may purchase pursuant to
Employee's employment offer letter of July 9, 1996, or are owned by Employee or
hereafter acquired pursuant to the exercise of any stock options granted by the
Company to Employee, pursuant to a
Pledge Agreement in the form attached hereto as Exhibit B (the "Loan Pledge
Agreement") which Employee, his spouse, and the Company shall execute
concurrently with the execution of this Agreement.
6. REPAYMENT OF LOAN. All principal and interest on the Loan shall become
due and payable immediately upon the occurrence of any one or more of the
following:
(a) Employment Termination. The ninetieth (90th) day following the
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date of Employee's voluntary termination, resignation, or termination for cause,
as defined herein. For Purposes of this Agreement, "cause" shall mean
misconduct, including: (i) conviction of any felony or any crime involving moral
turpitude or dishonesty; (ii) participation in a fraud or act of dishonesty
against the Company; (iii) willful breach of the Company's policies; (iv)
intentional damage to the Company's property; (v) breach of any employment
agreements entered into with the Company, or any other agreements with the
Company including, but not limited to agreements regarding confidentiality or
proprietary information; or (vi) conduct by Employee which in the good faith and
reasonable determination of the Company's Board of Directors demonstrates gross
unfitness to serve. Physical or mental disability shall not constitute "cause";
or
(b) Insolvency. In the event of the insolvency of Employee,
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including but not limited to a bankruptcy or insolvency proceeding having been
instituted by or against him, or a receiver is appointed for his property, or if
he makes an assignment for the benefit of creditors.
7. FORGIVENESS OF LOAN. Provided that no default under this Agreement,
the Note, or the Loan Pledge Agreement has occurred and is continuing, principal
and accrued interest on the Loan will be forgiven equally over the 48-month
period beginning on August 1, 1997, if the Loan has not become due and payable
pursuant to subsection 6(a) or 6(b) above. If Employee's employment is
terminated by the Company without cause, or is terminated due to Employee's
death, then the Company will forgive all remaining principal and accrued
interest.
8. PREPAYMENT. 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.
9. 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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10. 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, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
(b) This Agreement and its Exhibits contains the entire agreement
between Employee and the Company, and is the complete, final, and exclusive
embodiment of their agreement with regard to this subject matter. Employee and
the Company each acknowledge and represent that this Agreement is entered
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.
(c) 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 or deposited in the U.S. Mail, registered or certified with
postage prepaid, 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.
(d) 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.
(e) Employee agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purpose or intent of this
Agreement.
(f) In the event of any litigation concerning this Agreement, the
prevailing party shall be entitled to a reasonable sum for attorney's 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
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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first set forth above.
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Asyst Technologies, Inc.
a California corporation
By: /s/ Xxxxxxx X. XxXxxxxxxx
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Title: Senior Vice President and
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Chief Financial Officer
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Address: 00000 Xxxx Xxxx
Xxxxxxx, XX 00000
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PROMISSORY NOTE
$180,000.00 Fremont, California
August 1, 1997
For value received, I promise to pay to Asyst Technologies, Inc., a California
corporation (the "Company") or order, at its principal office at 00000 Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxxx 00000, or at such other place as the Company shall
designate in writing, the aggregate principal amount of all advances made
hereunder as set forth on SCHEDULE A attached hereto and incorporated herein by
reference, as the same may from time to time be amended, together with interest
thereon at the rate 6.39% per annum, payable at the times and in the manner set
forth in that certain Loan Agreement B (the "Loan") dated concurrently herewith
by and between the undersigned and the Company, the terms of which are
incorporated herein by reference. The undersigned hereby authorizes the holder
of this Note to record on SCHEDULE A all advances made by the holder hereunder,
which notations shall, in the absence of manifest error, be conclusive;
provided, however, that the failure to make a notation or the inaccuracy of the
notation shall not limit or otherwise affect the obligations of Borrower under
this Note.
Principal and interest are payable in lawful money of the United States of
America. THE PRIVILEGE IS RESERVED TO PREPAY ANY PORTION OF THIS NOTE AT ANY
TIME WITHOUT PENALTY, UPON THE PAYMENT OF ALL UNPAID INTEREST ACCRUED ON THE
ENTIRE OUTSTANDING LOAN BALANCE. All payments under this Note shall be credited
first to accrued interest and then to principal.
I hereby waive presentment for payment, protest, notice of protest, and notice
of non-payment of this Note.
This Note is secured by my pledge of all shares of the Company's Common Stock
now or hereafter owned by me ("Shares"), pursuant to the provisions of the Loan
and the Loan Pledge Agreement between the Company and me dated concurrently
herewith. The Company agrees that its only security for this Note are the
Shares.
The undersigned hereby represents and agrees that the amounts due under this
Note are not consumer debt, and are not incurred primarily for personal, family
or household purposes, but are for business and commercial purposes only.
This Note shall be governed by, and construed and enforced in accordance with,
the laws of the State of California, excluding conflict of laws principles.
/s/ Xxxxx X. Xxxxxxx
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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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LOAN PLEDGE AGREEMENT
THIS LOAN PLEDGE AGREEMENT ("Pledge Agreement") is made by Xxxxx Xxxxxxx, an
individual resident in the State of California ("Pledgor"), in favor of Asyst
Technologies, Inc., a California corporation with its principal place of
business at 00000 Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Pledgee").
WHEREAS, Pledgor has concurrently herewith executed that certain Loan
Agreement B (the "Loan Agreement"), and that certain Promissory Note (the
"Note") in favor of Pledgee in the aggregate principal amount of up to One
Hundred Eighty Thousand Dollars ($180,000.00);
WHEREAS, Pledgee is willing to make the Loan to Pledgor pursuant to the Loan
Agreement, but only upon the condition, among others, that Pledgor shall have
executed and delivered to Pledgee this Pledge Agreement and the Collateral (as
defined below):
NOW, THEREFORE, in consideration of the foregoing recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, Pledgor hereby agrees as
follows:
1. As security for the full, prompt and complete payment and
performance when due (whether by stated maturity, by acceleration or otherwise)
of all indebtedness of Pledgor to Pledgee created under the Note (all such
indebtedness being the "Liabilities"), together with, without limitation, the
prompt payment of all expenses, including, without limitation, reasonable
attorneys' fees and legal expenses, incidental to the collection of the
Liabilities and the enforcement or protection of Pledgee's lien in and to the
Collateral pledged hereunder, Pledgor hereby pledges to Pledgee, and grants to
Pledgee, a first priority security interest in all of the following
(collectively, the "Pledged Collateral"):
(a) Upon the exercise of any stock options held by Pledgor
under the Pledgee's Stock Option Plan, any and all shares of Common Stock of the
Pledgee issued to Pledgor shall become pledged shares including, but not limited
to, all shares of Common Stock issued pursuant to the stock options (the
"Pledged Shares"), and all dividends, cash, instruments, and other property or
proceeds from time to time received, receivable, or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares;
(b) all voting trust certificates held by Pledgor evidencing
the right to vote any Pledged Shares subject to any voting trust; and
(c) all additional shares and voting trust certificates from
time to time acquired
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by Pledgor in any manner (which additional shares shall be deemed to be part of
the Pledged Shares), and the certificates representing such additional shares,
and all dividends, cash, instruments, and other property or proceeds from time
to time received, receivable, or otherwise distributed in respect of or in
exchange for any or all of such shares.
The term "indebtedness" is used herein in its most comprehensive sense
and includes any and all advances, debts, obligations and Liabilities
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether recovery upon such
indebtedness may be or hereafter becomes unenforceable.
2. At any time and from time to time, Pledgor shall execute and deliver
such further instruments and take such further action as may be reasonably
requested by Pledgee to perfect Pledgee's security interest in the Pledged
Collateral, including, without limitation, Pledgor will promptly deliver any
stock certificates held by Pledgor to Pledgee.
3. At any time, without notice, and at the expense of Pledgor, Pledgee
in its name or in the name of its nominee or of Pledgor may, but shall not be
obligated to: (1) collect by legal proceedings or otherwise all dividends
(except cash dividends other than liquidating dividends), interest, principal
payments and other sums now or hereafter payable upon or on account of said
Pledged Collateral; (2) enter into any extension, reorganization, deposit,
merger or consolidation agreement, or any agreement in any wise relating to or
affecting the Pledged Collateral, and in connection therewith may deposit or
surrender control of such Pledged Collateral thereunder, accept other property
in exchange for such Pledged Collateral and do and perform such acts and things
as it may deem proper, and any money or property received in exchange for such
Pledged Collateral shall be applied to the indebtedness or thereafter held by it
pursuant to the provisions hereof; (3) insure, process and preserve the Pledged
Collateral; (4) cause the Pledged Collateral to be transferred to its name or to
the name of its nominee; (5) exercise as to such Pledged Collateral all the
rights, powers and remedies of an owner, except that so long as no default
exists under the Note or hereunder Pledgor shall retain all voting rights as to
the Pledged Shares.
4. Pledgor agrees to pay prior to delinquency all taxes, charges, liens
and assessments against the Pledged Collateral, and upon the failure of Pledgor
to do so, Pledgee at its option may pay any of them and shall be the sole judge
of the legality or validity thereof and the amount necessary to discharge the
same.
5. At the option of Pledgee and without necessity of demand or notice,
all or any part of the indebtedness of Pledgor shall immediately become due and
payable irrespective of any agreed maturity, upon the happening of any of the
following events: (1) failure to keep or perform any of the terms or provisions
of this Pledge Agreement; (2) failure to pay any installment of principal or
interest on the Note when due; (3) the levy of any attachment, execution or
other process against the Pledged Collateral; (4) as required by the terms of
the Loan Agreement; or (5) the insolvency, commission of an act of bankruptcy,
general assignment for the benefit of
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creditors, filing of any petition in bankruptcy or for relief under the
provisions of Title 11 of the United States Code of, by, or against Pledgor.
6. In the event of the nonpayment of any indebtedness when due, whether
by acceleration or otherwise, or upon the happening of any of the events
specified in the last preceding paragraph, Pledgee may then, or at any time
thereafter, at its election, apply, set off, collect or sell in one or more
sales, or take such steps as may be necessary to liquidate and reduce to cash in
the hands of Pledgee in whole or in part, with or without any previous demands
or demand of performance or notice or advertisement, the whole or any part of
the Pledged Collateral in such order as Pledgee may elect, and any such sale may
be made either at public or private sale at its place of business or elsewhere,
or at any broker's board or securities exchange, either for cash or upon credit
or for future delivery; provided, however, that if such disposition is at
private sale, then the purchase price of the Pledged Collateral shall be equal
to the public market price then in effect, or, if at the time of sale no public
market for the Pledged Collateral exists, then, in recognition of the fact that
the sale of the Pledged Collateral would have to be registered under the
Securities Act of 1933 and that the expenses of such registration are
commercially unreasonable for the type and amount of collateral pledged
hereunder, Pledgee and Pledgor hereby agree that such private sale shall be at a
purchase price mutually agreed to by Pledgee and Pledgor or, if the parties
cannot agree upon a purchase price, then at a purchase price established by a
majority of three independent appraisers knowledgeable of the value of such
collateral, one named by Pledgor within ten (10) days after written request by
the Pledgee to do so, one named by Pledgee within such ten (10) day period, and
the third named by the two appraisers so selected, with the appraisal to be
rendered by such body within thirty (30) days of the appointment of the third
appraiser. The cost of such appraisal, including all appraiser's fees, shall be
charged against the proceeds of sale as an expense of such sale. Pledgee may be
the purchaser of any or all Pledged Collateral so sold and hold the same
thereafter in its own right free from any claim of Pledgor or right of
redemption. Demands of performance, notices of sale, advertisements and presence
of property at sale are hereby waived, and Pledgee is hereby authorized to sell
hereunder any evidence of debt pledged to it. Any sale hereunder may be
conducted by any officer or agent of Pledgee.
7. The proceeds of the sale of any of the Pledged Collateral and all
sums received or collected by Pledgee from or on account of such Pledged
Collateral shall be applied by Pledgee to the payment of expenses incurred or
paid by Pledgee in connection with any sale, transfer or delivery of the Pledged
Collateral, to the payment of any other costs, charges, attorneys' fees or
expenses mentioned herein, and to the payment of the indebtedness or any part
hereof, all in such order and manner as Pledgee in its discretion may determine.
Pledgee shall then pay any balance to Pledgor.
8. Upon the transfer of all or any part of the indebtedness Pledgee may
transfer all or any part of the Pledged Collateral and shall be fully discharged
thereafter from all liability and responsibility with respect to such Pledged
Collateral so transferred, and the transferee shall be vested with all the
rights and powers of Pledgee hereunder with respect to such Pledged Collateral
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so transferred; but with respect to any Pledged Collateral not so transferred
Pledgee shall retain all rights and powers hereby given.
9. Until all indebtedness shall have been paid in full the power of
sale and all other rights, powers and remedies granted to Pledgee hereunder
shall continue to exist and may be exercised by Pledgee at any time and from
time to time irrespective of the fact that the indebtedness or any part thereof
may have become barred by any statute of limitations, or that the personal
liability of Pledgor may have ceased.
10. Pledgee may at any time deliver the Pledged Collateral or any part
thereof to Pledgor and the receipt of Pledgor shall be a complete and full
acquittance for the Pledged Collateral so delivered, and Pledgee shall
thereafter be discharged from any liability or responsibility therefor.
11. The rights, powers and remedies given to Pledgee by this Pledge
Agreement shall be in addition to all rights, powers and remedies given to
Pledgee by virtue of any statute or rule of law. Any forbearance or failure or
delay by Pledgee in exercising any right, power or remedy hereunder shall not be
deemed to be a waiver of such right, power or remedy, and any single or partial
exercise of any right, power or remedy hereunder shall not preclude the further
exercise thereof; and every right, power and remedy of Pledgee shall continue in
full force and effect until such right, power or remedy is specifically waived
by an instrument in writing executed by Pledgee.
12. If any provision of this Pledge Agreement is held to be
unenforceable for any reason, it shall be adjusted, if possible, rather than
voided in order to achieve the intent of the parties to the extent possible. In
any event, all other provisions of this Pledge Agreement shall be deemed valid
and enforceable to the full extent possible.
13. This Pledge Agreement shall be governed by, and construed in
accordance with, the laws of the State of California as applied to contracts
made and performed entirely within the State of California by residents of such
State.
Dated: August 1, 1997
PLEDGOR:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx
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CONSENT OF SPOUSE OF PLEDGOR
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I, Xxxxx Xxxxxxx, spouse of Xxxxx Xxxxxxx, acknowledge that I have read the
Loan Agreement and Pledge Agreement, each dated concurrently herewith, including
the form of the promissory note attached as Exhibit A to the Loan Agreement, and
that I know their contents. I hereby consent to, and agree to be bound by,
their terms, conditions and restrictions.
Dated as of this 1st day of August, 1997
/s/ Xxxxx X. Xxxxxxx
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---------------(Spouse)
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ANNEX 1
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, I, Xxxxx Xxxxxxx, hereby sell, assign and transfer unto
Asyst Technologies, Inc., ______________________________ (_______________)
shares of the Common Stock of Asyst Technologies, Inc. standing in my name on
the books of said corporation represented by Certificate No. __ herewith and do
hereby irrevocably constitute and appoint Xxxxxx Godward LLP, attorney, to
transfer the said stock on the books of the within named corporation with full
power of substitution in the premises.
This Assignment Separate From Certificate may only be used in accordance with
the Loan Agreement and Pledge Agreement each dated as of _________________,
1997.
Dated: _____________________, 19__
Signature:______________________________________
Xxxxx Xxxxxxx
Signature:______________________________________
(Spouse)
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