Exhibit 10.1
JDS Uniphase Corporation
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November 30, 2002
Adept Technology, Inc.
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Re: Supply, Development and License Agreement dated as of October
29, 2001 (the "Agreement") between JDS Uniphase Corporation
("JDSU") and Adept Technology, Inc. ("Adept")
The parties have performed their respective obligations under the
Agreement in good faith, including, without limitation, their respective
obligations with respect to the Initial Development Projects (as defined in the
Agreement). However, due to changing economic and business circumstances
occurring subsequent to the date of the Agreement, the parties have determined
that the development work being performed under the Agreement is no longer in
their mutual best interests. Consequently, the parties now desire to terminate
the Agreement (but no other agreement or understanding between the parties),
upon the terms and conditions set forth herein. Accordingly, the parties hereby
agree as follows:
1. The Agreement is hereby terminated effective as of the date hereof
(the "Termination Date"). Neither party shall have any further obligation or
liability under the Agreement, except solely as provided in paragraph 2 below
and except for all licenses, licensing rights and other rights and obligations
that survive such termination pursuant to Section 16 of the Agreement, all of
which rights and obligations shall continue in full force and effect in
accordance with such Section 16. Without limiting the foregoing, the parties
agree and acknowledge that their respective rights and obligations under Section
IV.1.3 of the Agreement shall survive the termination of the Agreement, all of
which rights and obligations shall continue in full force and effect.
2. The parties agree and acknowledge that the remaining reimbursement
obligation of Adept to JDSU, pursuant to paragraph 6 of Schedule A to the
Agreement, as of the Termination Date is equal to $1,000,000 for development
services performed by JDSU during the quarter ended June 30, 2002. As full
payment of this sum, concurrently herewith, Adept shall execute and deliver to
JDSU a promissory note, in the form attached hereto as Schedule 1.
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3. The parties agree that Adept will use all commercially reasonable
efforts to amend Section 4(b) of the Statement of Preferences of Series A
Preferred Stock and Series B Preferred Stock of Adept Technology, Inc. (the
"Statement of Preferences"), such that the date upon which outstanding shares of
Preferred Stock (as defined in the Statement of Preferences) shall automatically
convert into shares of Common Stock (as defined in the Statement of
Preferences), pursuant to such Section 4(b) shall be the fourth anniversary of
the Original Issue Date (as defined in the Statement of Preferences) (the
"Amendment") and will use all commercially reasonable efforts to seek
shareholder approval of the Amendment at its annual meeting of shareholders to
be held in 2003 (the "Annual Meeting") or at any special meeting of the
shareholder held prior to the Annual Meeting. Promptly upon receipt of such
approval, Adept shall cause the Amendment to be filed (subject to JDSU's prior
reasonable consent) with the Office of the Secretary of State for the State of
California to reflect the agreement of the parties pursuant to this paragraph 3.
4. The agreements contained in this letter will be binding upon any
successors or assignee of Adept and JDSU, respectively.
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Please sign the enclosed duplicate copy of this letter where indicated
below and return to the Company at your earliest convenience.
Very truly yours,
JDS Uniphase Corporation
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Vice President
Acknowledged and Agreed as of December 16, 2002
Adept Technology, Inc.
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Chief Executive Officer
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SCHEDULE 1
FORM OF PROMISSORY NOTE
$1,000,000 San Jose, California
November 30, 2002
FOR VALUE RECEIVED, Adept Technology, Inc. (the "Debtor"), promises to pay to
the order of JDS Uniphase Corporation ("Holder"), the principal sum of One
Million Dollars ($1,000,000) and to pay interest on the outstanding principal of
this Promissory Note (this "Note"), in accordance with Section 3 of this Note.
1. Maturity. The entire unpaid principal balance shall automatically
mature and be due and payable on September 30, 2004 (as such date may be
accelerated pursuant to Section 1(a) or 5 below, the "Maturity Date"), and
accrued interest on this Note shall be due and payable on the Maturity Date. The
Debtor shall pay the entire unpaid principal balance and all interest accrued
thereon on the Maturity Date. All payments received shall be applied first
against accrued and unpaid interest, then against principal. All sums owing
hereunder are payable in lawful money of the United States of America, in
immediately available funds.
(a) At Holder's option, all proceeds received by Debtor (or any
subsidiary or affiliate of Debtor) from each and any Financing (as defined
below) shall be applied first to the repayment of the then-outstanding principal
and interest outstanding under this Note prior to being applied for any other
use or uses (the principal amount of this Note so required to be repaid,
together with the interest thereon, is referred to herein as the "Repayment
Amount"). Debtor shall notify Holder in writing, no later than ten (10) business
days prior to the completion of any Financing, of all of the material terms and
conditions of such Financing. No later than three (3) business days prior to
completion of the Financing, Holder shall deliver written notice to Debtor of
its election to cause the Repayment Amount to be become due and payable, in
which event the Repayment Amount shall be repaid in full by Debtor concurrently
with the completion of the Financing. If Holder fails to timely deliver such
notice, Holder shall be deemed to have elected not to require any repayment in
connection with such Financing. Any failure by Holder to elect repayment in
connection with any Financing shall not waive Holder's rights under this Section
1(a) with respect to any subsequent Financing, all of which rights are hereby
reserved and applicable to any such Financing until such time as all amounts
outstanding under this Note are repaid in full. For the purposes hereof, the
term "Financing" shall mean (a) the incurrence by Debtor (or any subsidiary or
affiliate of Debtor) of any debt for borrowed money, (b) the issuance by Debtor
(or any subsidiary or affiliate of Debtor) of any instruments or debt or equity
securities (or any securities or rights convertible into or exchangeable for any
such securities), or (c) the exercise or conversion of any outstanding options,
warrants or securities of Debtor (or any subsidiary or affiliate of Debtor);
provided that the foregoing shall not include, (A) the exercise by employees of
Debtor of options to purchase shares of Debtor's common stock pursuant to
Debtor's stock option plans, or (B) the purchase of shares of Debtor's common
stock by Debtor's employees pursuant to Debtor's stock purchase or other benefit
plans.
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2. Unsecured Note. The amounts due and owing under this Note shall be
unsecured obligations of the Debtor. If the Debtor does not repay the principal
and all accrued interest to Holder on the Maturity Date, Holder may pursue any
contractual, legal or equitable remedies that are available to it.
3. Interest. Interest shall begin to accrue on the unpaid principal
balance of this Note, if any, commencing on the date hereof and continuing until
repayment of this Note in full at the rate of seven percent (7%) per annum
calculated on the basis of a 365 day year and actual days elapsed. If not
previously repaid in accordance with Section 4, interest accrued on this Note
shall be paid upon repayment of this Note. After the occurrence of an event of
default under Section 5 hereof, this Note shall bear interest until paid at a
rate equal to the lower of fourteen percent (14%) per annum or the highest rate
then permitted by law in California.
4. Prepayment. The unpaid principal balance and all accrued interest
and any and all other sums payable to Holder hereunder may be prepaid in whole
or in part prior to the Maturity Date without penalty or premium.
5. Default. The debtor will be deemed to be in default hereunder, the
maturity of this Note shall be immediately and automatically accelerated, and
the unpaid principal balance of this Note, together will all accrued interest
thereon, will become immediately due and payable if any of the following occur:
(a) The Debtor shall default in the payment of the principal
or accrued interest of this Note as and when the same shall become due and
payable, whether by acceleration or otherwise; or
(b) The Debtor shall:
(i) become insolvent or unable to pay its debts as
they become due; or
(ii) apply for the appointment of a trustee,
receiver, sequestrator or other custodian for the Debtor or any of its property,
or make a general assignment for the benefit of creditors or shall have any such
proceeding commenced against it that is not dismissed within sixty (60) days
following the commencement of such proceeding;
(c) The filing of a petition in bankruptcy or under any
similar insolvency law by the Debtor, the making of an assignment for the
benefit of creditors, or if any voluntary petition in bankruptcy or under any
similar insolvency law is filed against the Debtor and such petition is not
dismissed within sixty (60) days after the filing thereof;
(d) The Debtor breaches any of its covenants or obligations to
Holder, pursuant to (a) the letter agreement dated as of even date herewith
between Debtor or Holder, (b) the Statement of Preferences, as amended, relating
to Debtor's Series A Preferred Stock and Series B Preferred Stock, or (c) that
certain Securities Purchase and Investor Rights Agreement between Debtor and
Holder, and any applicable notice and cure period have expired with respect to
such breach; or
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(e) The Debtor takes any corporate or other action
authorizing, or in furtherance of, any of the foregoing.
6. Miscellaneous.
(a) The Debtor hereby waives presentment, demand, protest,
notice of dishonor, diligence and all other notices, any release or discharge
arising from any extension of time, discharge of a prior party, release of any
or all of any security given from time to time for this Note, or other cause of
release or discharge other than actual payment in full hereof.
(b) Holder shall not be deemed, by any act or omission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by Holder and then only to the extent specifically set forth
in such writing. No delay or omission of Holder to exercise any right, whether
before or after a default hereunder, shall impair any such right or shall be
construed to be a waiver of any right or default, and the acceptance at any time
by Holder of any past-due amount shall not be deemed to be a waiver of the right
to require prompt payment when due of any other amounts then or thereafter due
and payable.
(c) Time is of the essence hereof. Upon any default hereunder,
Holder may exercise all rights and remedies provided for herein and by law or
equity, including, but not limited to, the right to immediate payment in full of
this Note.
(d) The remedies of Holder as provided herein, or any one or
more of them, or in law or in equity, shall be cumulative and concurrent, and
may be pursued singularly, successively or together at Holder's sole discretion,
and may be exercised as often as occasion therfor shall occur.
(e) If any provisions of this Note would require the Debtor to
pay interest hereon at a rate exceeding the highest rate allowed by applicable
law, the Debtor shall instead pay interest under this Note at the highest rate
permitted by applicable law.
(g) This Note shall be governed by and construed in accordance
with and the laws of the State of California applicable to contracts wholly made
and performed in the State of California.
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IN WITNESS WHEREOF, the Debtor has executed this Promissory Note as of
the date first above written.
ADEPT TECHNOLOGY, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
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