Exhibit 10.1
SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into as of May 13, 2007 (the
"Effective Date") by and between Adept Technology, Inc. ("Adept"), on the one
hand, and Crosslink Ventures IV, L.P., Offshore Crosslink Omega Ventures IV (a
Cayman Islands Unit Trust), Crosslink Omega Ventures IV GmbH & Co. KG, Omega
Bayview IV, L.L.C., and Crosslink Crossover Fund IV, L.P. (collectively the
"Crosslink Parties") on the other hand. Adept and the Crosslink Parties are each
sometimes referred to herein as a "Party" and collectively as "the Parties."
RECITALS
A. WHEREAS, on or about June 9, 2006, Adept and the Crosslink
Parties entered into a Common Stock Purchase Agreement of even date (the "Stock
Purchase Agreement"), pursuant to which the Crosslink Parties purchased 731,251
shares of Adept common stock for an aggregate purchase price of approximately
ten million U.S. dollars ($10,000,000.00);
B. WHEREAS, on or about each of October 17, October 19, and October
20, 2006, Adept filed amendments to certain previously filed Quarterly Reports
on Form 10-Q following its accounting review (the "Restated Financial Reports");
C. WHEREAS, as a result of Adept's accounting review and subsequent
SEC filings, the Crosslink Parties asserted a basis for claims for breach of
certain representations and warranties of Adept in the Stock Purchase Agreement
and other claims;
D. WHEREAS, Adept denied and continues to deny any and all claims
of the Crosslink Parties;
E. NOW THEREFORE, for good and valuable consideration, for the
purpose of settling disputed claims without litigation, and without admission of
any fault or liability on the part of any Party whatsoever, the Parties hereby
agree as follows:
AGREEMENT
1. Transfer of Shares in Settlement of Dispute. In full and final
settlement of any and all claims that any of the Crosslink Parties have or may
have against Adept or any of the Crosslink Releasees (hereinafter defined),
Adept shall issue and transfer to the Crosslink Parties an aggregate total of
225,000 shares of Adept common stock (in the aggregate, the "Shares"), without
representations, warranties, registration, informational or any other
contractual rights except as explicitly set forth herein. The Shares shall be
issued to the Crosslink Parties, in lieu of any cash consideration, as follows:
109,545 of the Shares to Crosslink Ventures IV, L.P., 35,266 of the Shares to
Offshore Crosslink Omega Ventures IV (a Cayman Islands Unit Trust), 4,583 of the
Shares to Crosslink Omega Ventures IV GmbH & Co. KG, 8,685 of the Shares to
Omega Bayview IV, L.L.C., and 66,921 of the Shares to Crosslink Crossover Fund
IV, L.P. Registration rights shall be as set forth in the Registration Rights
Agreement with respect to the Shares attached hereto as Exhibit A.
2. No Assignment of Claims. Each of the Crosslink Parties
represents and warrants to Adept, and Adept represents and warrants to each of
the Crosslink Parties, that it has not hypothecated or otherwise encumbered or
assigned any claim or cause of action against the other or against any of its
respective Releasees (hereinafter defined).
3. No Legal Proceedings. Each of the Crosslink Parties represents
and warrants to Adept, and Adept represents and warrants to each of the
Crosslink Parties, that it has not instituted any legal proceeding against the
other or against any of its respective Releasees (hereinafter defined).
4. Authority to Enter Into Settlement Agreement. Each Party
represents and warrants to the other Parties that it full power and authority to
enter into this Settlement Agreement; that this Settlement Agreement has been
duly and validly authorized, executed and delivered on behalf of such Party; and
that this Settlement Agreement is a valid and binding agreement of such Party
enforceable against such Party in accordance with its terms, except as such
enforceability may be limited by bankruptcy laws and other similar laws
affecting creditors' rights generally and general principles of equity.
5. Reliance on Independent Legal Advice. Each Party represents and
warrants to the other Parties:
(a) That it has received advice from his or its own respective,
independent legal counsel prior to its execution of this Settlement Agreement;
(b) That the legal nature and effect of this Settlement
Agreement has been explained to it by its respective counsel;
(c) That it fully understands the terms and provisions of this
Settlement Agreement and the nature and effect thereof;
(d) That it is relying solely on the advice of its own legal
counsel in executing this Settlement Agreement;
(e) That it has not relied upon any representation or statement
of any other Party or counsel for any other Party not contained in this
Settlement Agreement;
(f) That it has carefully read this Settlement Agreement, knows
the contents thereof, and is executing the same freely and voluntarily; and
(g) That it is aware that it or its respective attorneys may
hereafter discover facts different from or in addition to the facts that they
now know or believe to be true with respect to the subject matter hereof, but
that its intention is to fully and finally release its respective Releasees
(hereinafter defined) to the full extent of the Mutual Releases contained in
this Settlement Agreement.
6. Adept Representations Regarding the Shares.
Adept represents and warrants to each of the Crosslink Parties
that (a) Adept has all corporate power and authority to engage in the
transactions contemplated by this Settlement Agreement, (b) the Shares to be
issued pursuant to this Settlement Agreement are, or will be upon issuance, duly
authorized, validly issued and fully paid, (c) in reliance, in part, upon the
accuracy of the representations in Section 7, the Shares are, or shall be,
issued pursuant to an exemption from registration under applicable securities
laws, free and clear of any liens or encumbrances other than any created by the
Crosslink Parties or applicable securities laws, (d) there are no consents,
approvals, filings or notices of any governmental or third party necessary to be
obtained or made by Adept in connection with this Agreement (other than current
or periodic reports under the Securities and Exchange Act of 1934, as amended,
and other than pursuant to applicable securities laws or filings with the Nasdaq
Global Market) and (e) assuming all filings and disclosures pursuant to
applicable securities laws are completed, the execution, delivery and
performance by Adept of this Agreement does not violate, breach or conflict with
Adept's certificate of incorporation, bylaws, or any judgment, decree, order,
statute, law, rule or regulation applicable to Adept.
7. Crosslink Parties Securities Laws Representations.
Each Crosslink Party hereby severally represents and warrants to Adept as
follows:
(a) Purchase for Own Account, Etc. Such Crosslink Party is
acquiring its respective portion of the Shares for such Crosslink Party's own
account for investment purposes only and not with a present view towards the
public sale or distribution thereof except for sales duly registered under the
Securities Act. Such Crosslink Party is not a registered broker/dealer, nor is
an affiliate of a registered broker/dealer and such Crosslink Party does not
have any agreement or understanding, directly or indirectly, with any person
regarding the sale or distribution of the Shares or any common stock of Adept
("Common Stock"), except this Settlement Agreement. Such Crosslink Party
understands that it must bear the economic risk of this investment indefinitely,
unless the Shares are registered pursuant to the Securities Act and any
applicable state securities or blue sky laws or an exemption from such
registration is available.
(b) Accredited Investor Status. Such Crosslink Party is an
"Accredited Investor" as that term is defined in Rule 501(a) of Regulation D,
and was not organized for the purpose of this investment.
(c) Reliance on Exemptions. Such Crosslink Party understands
that the Shares are being issued to such Crosslink Party in reliance upon
specific exemptions from the registration requirements of United States federal
and state securities laws and that Adept is relying upon the truth and accuracy
of, and such Crosslink Party's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of such Crosslink Party set forth
herein in order to determine the availability of such exemptions and the
eligibility of such Crosslink Party to acquire the Shares.
(d) Governmental Review. Such Crosslink Party understands that
no United States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the Shares.
(e) Transfer or Resale. Such Crosslink Party understands that
(i) the sale or resale of the Shares have not been and are not being registered
under the Securities Act or any state securities laws, and the Shares may not be
transferred unless (A) the Crosslink Party shall have delivered to the Company
an opinion of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the effect that
the Shares to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; or (B) sold under and in compliance with Rule
144 promulgated under the Securities Act (or a successor rule) ("Rule 144"); or
(C) sold or transferred to an affiliate or limited partner of the Crosslink
Party who agrees to sell or otherwise transfer the Shares only in accordance
with the provisions of this Section and who is an Accredited Investor.
Notwithstanding the foregoing or anything else contained herein to the contrary,
the Shares may be pledged as collateral in connection with a bona fide margin
account or other lending arrangement, provided such pledge is consistent with
applicable laws, rules and regulations, including all applicable securities
laws.
(f) Legend. Each of the Crosslink Parties understands that until
such time as the Shares issued pursuant to this Agreement may have been
registered under the Securities Act or otherwise may be sold by the Crosslink
Party under Rule 144(k), certificates for the Shares may bear a restrictive
legend in substantially the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state of the United States or in any
other jurisdiction. The securities represented hereby may not be
offered, sold or transferred in the absence of an effective
registration statement for the securities under applicable
securities laws unless offered, sold or transferred pursuant to
an available exemption from the registration requirements of
those laws.
The legend set forth above shall be removed and Adept shall issue (or
instruct the transfer agent to issue) a certificate without such legend to the
holder of any Shares upon which it is stamped, if, unless otherwise required by
state securities laws, (a) such holder provides Adept with an opinion of
counsel, in form, substance and scope customary for opinions of counsel in
comparable transactions, to the effect that a public sale or transfer of such
Shares may be made without registration under the Securities Act; or (b) such
holder provides Adept with reasonable assurances that such Shares can be sold
under Rule 144(k).
(g) Residency. Such Crosslink Party is a resident of the
jurisdiction set forth under the name of such Crosslink Party on Schedule I to
the Stock Purchase Agreement.
(h) Execution, Delivery, Performance. There are no consents,
approvals, filings or notices of any governmental or third party necessary to be
obtained or made by such Crosslink Party in connection with this Agreement
(other than current or periodic reports under the Securities and Exchange Act of
1934, as amended) and the execution, delivery and performance by such Crosslink
Party of this Agreement does not violate, breach or conflict with any
certificate of incorporation, bylaw, operating agreement or other similar
governing document, judgment, decree, order, statute, law, rule or regulation
applicable to such Crosslink Party.
8. Termination of Representations and Warranties Under Stock
Purchase Agreement. Each of the Parties hereto agrees that the representations
and warranties and the agreements and covenants in the Stock Purchase Agreement,
and all indemnification obligations with respect thereto, that would have
otherwise expired or terminated one (1) year following the Closing of the Stock
Purchase Agreement, shall be deemed to have expired and terminated instead on
the Effective Date of this Settlement Agreement. This Agreement does not
supercede or amend the Stock Purchase Agreement in any other respect.
9. Waiver of Civil Code ss. 1542. Each of the Crosslink Parties
represents and warrants to Adept, and Adept represents and warrants to each of
the Crosslink Parties, that it has been informed of, has read, is familiar with,
understands, and does hereby expressly waive all rights that it has or may have
under Section 1542 of the California Civil Code and all other similar rights in
other states or territories of the United States of America, or any other
jurisdiction. Said Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR
10. Release by the Crosslink Parties of Adept. Crosslink Ventures
IV, L.P., Offshore Crosslink Omega Ventures IV (a Cayman Islands Unit Trust),
Crosslink Omega Ventures IV GmbH & Co. KG, Omega Bayview IV, L.L.C., and
Crosslink Crossover Fund IV, L.P., for themselves, and for each of their
respective past, present, and future officers, directors, shareholders, heirs,
administrators, executors, partners, members, insurers, sureties, attorneys,
consultants, experts, employees, owners, investors, alter egos, agents,
representatives, predecessors, successors and assigns, and any past, present or
future parent, subsidiary or affiliate corporations, partnerships, LLC's or
other related business entities, and each of their respective past, present, and
future officers, directors, shareholders, heirs, administrators, executors,
partners, members, insurers, sureties, attorneys, consultants, experts,
employees, owners, investors, alter egos, agents, representatives, predecessors,
successors and assigns (collectively the "Crosslink Releasors"), do hereby
release, acquit, and forever discharge Adept and its past, present, and future
officers, directors, shareholders, heirs, administrators, executors, partners,
members, insurers, sureties, attorneys, accountants, consultants, experts,
employees, owners, investors, alter egos, agents, representatives, predecessors,
successors and assigns, and any past, present or future parent, subsidiary or
affiliate corporations, partnerships, LLC's or other related business entities,
and each of their respective past, present, and future officers, directors,
shareholders, heirs, administrators, executors, partners, members, insurers,
sureties, attorneys, consultants, experts, employees, owners, investors, alter
egos, agents, representatives, predecessors, successors and assigns
(collectively the "Crosslink Releasees"), of and from any and all claims, causes
of action, debts, losses, damages, obligations, liabilities, promises,
representations, warranties, acts or omissions, of any kind or nature
whatsoever, from the beginning of time to the Effective Date (whether at law or
in equity, whether in tort or in contract, whether statutory or at common law,
whether for rescission, damages, or any other relief, and whether known or
unknown, suspected or unsuspected), including but not limited to any and all
claims arising under the state or federal securities laws, claims for breach of
the Stock Purchase Agreement, and claims for fraud, misrepresentation,
negligence, breach of duty, or concealment, which have arisen, are arising, or
may in the future arise out of, from, or relating to, directly or indirectly,
the Stock Purchase Agreement, the shares purchased pursuant to the Stock
Purchase Agreement, Adept's accounting review, financial results, SEC filings,
or Restated Financial Reports, or any other matter from the beginning of time to
the Effective Date; provided, however, that this Release shall not release the
Crosslink Parties from any of their respective duties or obligations under this
Settlement Agreement, the Registration Rights Agreement attached hereto as
Exhibit A, or under those provisions of the Stock Purchase Agreement that are
not addressed herein.
11. Release by Adept of the Crosslink Parties. Adept, for itself,
and for each of its respective past, present, and future officers, directors,
shareholders, heirs, administrators, executors, partners, members, insurers,
sureties, attorneys, consultants, experts, employees, owners, investors, alter
egos, agents, representatives, predecessors, successors and assigns, and any
past, present or future parent, subsidiary or affiliate corporations,
partnerships, LLC's or other related business entities, and each of their
respective past, present, and future officers, directors, shareholders, heirs,
administrators, executors, partners, members, insurers, sureties, attorneys,
consultants, experts, employees, owners, investors, alter egos, agents,
representatives, predecessors, successors and assigns (collectively the "Adept
Releasors"), does hereby release, acquit, and forever discharge Crosslink
Ventures IV, L.P., Offshore Crosslink Omega Ventures IV (a Cayman Islands Unit
Trust), Crosslink Omega Ventures IV GmbH & Co. KG, Omega Bayview IV, L.L.C., and
Crosslink Crossover Fund IV, L.P., and each of their respective past, present,
and future officers, directors, shareholders, heirs, administrators, executors,
partners, members, insurers, sureties, attorneys, accountants, consultants,
experts, employees, owners, investors, alter egos, agents, representatives,
predecessors, successors and assigns, and any past, present or future parent,
subsidiary or affiliate corporations, partnerships, LLC's or other related
business entities, and each of their respective past, present, and future
officers, directors, shareholders, heirs, administrators, executors, partners,
members, insurers, sureties, attorneys, consultants, experts, employees, owners,
investors, alter egos, agents, representatives, predecessors, successors and
assigns (collectively the "Adept Releasees"), of and from any and all claims,
causes of action, debts, losses, damages, obligations, liabilities, promises,
representations, warranties, acts or omissions, of any kind or nature
whatsoever, from the beginning of time to the Effective Date (whether at law or
in equity, whether in tort or in contract, whether statutory or at common law,
whether for rescission, damages, or any other relief, and whether known or
unknown, suspected or unsuspected), including but not limited to any and all
claims arising under the state or federal securities laws, claims for breach of
the Stock Purchase Agreement, and claims for fraud, misrepresentation,
negligence, breach of duty, or concealment, which have arisen, are arising, or
may in the future arise out of, from, or relating to, directly or indirectly,
the Stock Purchase Agreement, the shares purchased pursuant to the Stock
Purchase Agreement, Adept's accounting review, financial results, SEC filings,
or Restated Financial Reports, or any other matter from the beginning of time to
the Effective Date; provided, however, that this Release shall not release Adept
from any of its duties or obligations under this Settlement Agreement, the
Registration Rights Agreement attached hereto as Exhibit A, or under those
provisions of the Stock Purchase Agreement that are not addressed herein.
12. Covenant Not To Xxx. Except for the enforcement of this
Settlement Agreement, each of the Parties, for itself, and for its respective
Releasors (hereinbefore defined) hereby covenants not to xxx any of the other
Parties or their respective Releasees (hereinbefore defined) based on any claim
covered by the foregoing Mutual Releases.
13. Governing Law; Jurisdiction. This Settlement Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in the State of Delaware. Adept
and the Crosslink Parties irrevocably consent to the jurisdiction of the United
States federal courts and the state courts located in the State of Delaware in
any suit or proceeding based on or arising under this Settlement Agreement and
irrevocably agree that all claims in respect of such suit or proceeding may be
determined in such courts. Adept and the Crosslink Parties irrevocably waive the
defense of an inconvenient forum to the maintenance of such suit or proceeding.
The Parties further agree that service of process upon the other Party mailed by
first class mail shall be deemed in every respect effective service of process
upon such Party in any such suit or proceeding. Nothing herein shall affect the
right of the Parties to serve process in any other manner permitted by law. The
Parties agree that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
14. No Admission of Fault. This Settlement Agreement is a compromise
settlement of disputed claims and may not be deemed or used as an admission of
liability or fault on the part of any Party hereto.
15. Each Party To Bear Own Costs and Attorneys' Fees. Each Party
hereto shall bear its own respective costs, expenses, and attorneys' fees with
respect to this Settlement Agreement and the matters settled hereby.
16. Entire Agreement. This Settlement Agreement constitutes the
entire agreement between the Parties with respect to the subject matter hereof,
and supersedes all previous agreements, negotiations, or understandings, whether
written or oral, concerning the settlement of the Crosslink claims; provided,
however, that this Settlement Agreement, except as expressly provided herein,
shall not supercede the Stock Purchase Agreement, the Registration Rights
Agreement entered into in connection with the Stock Purchase Agreement, or the
Registration Rights Agreement with respect to the Shares attached hereto as
Exhibit A.
17. Amendment Only In Writing. This Settlement Agreement may be
amended only by a written agreement executed by all Parties hereto.
18. Severability. In case any provision of this Settlement Agreement
shall be declared invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Settlement Agreement shall
not in any way be affected or impaired thereby.
19. Counterparts. This Settlement Agreement may be executed in
counterparts, each of which shall be deemed a duplicate original, but all of
which together shall constitute one and the same instrument.
20. Joint Participation in Drafting. Each party to this Settlement
Agreement has participated in the negotiation and drafting of this Agreement. As
such, the language used herein shall be deemed to be the language chosen by the
Parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any Party to this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement as of the Effective Date.
Adept Technology, Inc.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Its: President and Chief Executive Officer
[CROSSLINK ENTITIES' SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement as of the Effective Date.
Crosslink Ventures IV, L.P.
By: Crosslink Ventures IV Holdings, L.L.C.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx, Managing Member
Offshore Crosslink Omega Ventures IV,
(a Cayman Islands Unit Trust)
By: Crosslink Ventures IV Holdings, L.L.C.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx, Managing Member
Crosslink Omega Ventures IV GmbH & Co. KG
By: Crosslink Verwaltungs GmbH,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx, Managing Member
Omega Bayview IV, L.L.C.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx, Managing Member
Crosslink Crossover Fund IV, L.P.
By: Crossover Fund IV Management, L.L.C.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx, Managing Member
