Exhibit 10.1
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of
June 9, 2006, by and among Adept Technology, Inc., a corporation organized under
the laws of the State of Delaware (the "Company"), and the purchasers listed on
Schedule I attached hereto (each, a "Purchaser" and collectively, the
"Purchasers").
WHEREAS:
A. The Company and the Purchasers are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Securities Act").
B. The Company desires to sell, and the Purchasers desire to purchase,
upon the terms and conditions stated in this Agreement, shares of the Company's
common stock, par value $0.001 per share (the "Common Stock"). The shares of
Common Stock issuable pursuant to this Agreement are referred to herein as the
"Shares."
C. Contemporaneous with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement,
in the form attached hereto as Exhibit A (the "Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated thereunder,
and applicable state securities laws.
NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
1. PURCHASE AND SALE.
(a) Purchase of Shares. On the Closing Date (as defined below), subject
to the satisfaction (or waiver) of the conditions set forth in Section 6 and
Section 7 below, the Company shall issue and sell to the Purchasers, and each
Purchaser severally agrees to purchase from the Company, that number of Shares
at a purchase price per Share of $13.675 per share, as set forth opposite such
Purchaser's name on Schedule I hereto, for the aggregate purchase price and
consideration set forth opposite such Purchaser's name thereon.
(b) Deliveries. At the Closing (as defined below), the Company shall
deliver to each Purchaser a duly executed certificate or certificates
representing that number of Shares set forth opposite such Purchaser's name on
Schedule I against payment of the purchase price therefor by wire transfer, in
accordance with the Company's written wiring instructions.
(c) Closing Date. The issuance, sale and purchase of the Shares shall
take place at the closing of the transactions contemplated by this Agreement
(the "Closing"). The Closing shall be held at the offices of Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, 0000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000
on the Closing Date (as defined herein). The "Closing Date" shall mean the date
on which the satisfaction (or waiver) of all of the conditions and obligations
of the parties to consummate the transactions contemplated hereby or such other
date as may be mutually agreeable to the parties.
2. PURCHASERS' REPRESENTATIONS AND WARRANTIES.
Each Purchaser hereby severally represents and warrants to the Company
as follows:
(a) Purchase for Own Account, Etc. Such Purchaser is purchasing the
Shares for such Purchaser'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. Purchaser is not a registered
broker/dealer, nor is an affiliate of a registered broker/dealer and Purchaser
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,
except this Agreement. Such Purchaser has not engaged in any purchase or sale of
the Common Stock, nor entered into a contract to sell, sell any option or to
purchase; purchase any option or any contract to sell, grant any option, right,
or warrant to purchase, or any option therefor, nor any other hedging
transaction with respect to the Common Stock within the sixty (60) days prior to
the date of this Agreement. Such Purchaser 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, and that the Company
has no present intention of registering the resale of the Shares other than as
contemplated by the Registration Rights Agreement. Notwithstanding anything in
this Section 2(a) to the contrary, by making the representations herein, the
Purchasers do not agree to hold the Shares for any minimum or other specific
term and reserve the right to dispose of the Shares at any time in accordance
with or pursuant to a registration statement or an available exemption from the
registration requirements under the Securities Act.
(b) Accredited Investor Status. Such Purchaser 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 Purchaser understands that the Shares
are being offered and sold to such Purchaser in reliance upon specific
exemptions from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and such Purchaser's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of such Purchaser set forth
herein in order to determine the availability of such exemptions and the
eligibility of such Purchaser to acquire the Shares.
(d) Information. Such Purchaser and its counsel, if any, have been
furnished all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Shares which have
been specifically requested by such Purchaser or its counsel. Such Purchaser and
its counsel have been afforded the opportunity to ask questions of the Company
and have received what such Purchaser believes to be satisfactory answers to any
such inquiries. Neither such inquiries nor any other investigation conducted by
any Purchasers or its counsel or any of its representatives shall modify, amend
or affect such Purchasers' right to rely on the Company's representations and
warranties contained in Section 3 below. Such Purchaser understands that the
Purchaser's investment in the Shares involves a high degree of risk.
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(e) Governmental Review. Such Purchaser 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.
(f) Transfer or Resale. Such Purchaser understands that (i) except as
provided in the Registration Rights Agreement, 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 resale of
the Shares has been registered thereunder; or (B) the Purchaser 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 (C) sold
under and in compliance with Rule 144 promulgated under the Securities Act (or a
successor rule) ("Rule 144"); or (D) sold or transferred to an affiliate of the
Purchaser who agrees to sell or otherwise transfer the Shares only in accordance
with the provisions of this Section 2(f) and who is an Accredited Investor; and
(ii) neither the Company nor any other person is under any obligation to
register such Shares under the Securities Act or any state securities laws other
than pursuant to the Registration Rights Agreement. 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.
(g) Legends. Such Purchaser understands that until such time as the
Shares have been registered under the Securities Act (including registration
pursuant to Rule 416 thereunder) as contemplated by the Registration Rights
Agreement or otherwise may be sold by the Purchaser 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 Company agrees that it shall, promptly after the Registration
Statement (as defined in the Registration Rights Agreement) has been declared
effective, deliver to its transfer agent a letter of instruction or opinion that
at any time the Registration Statement is effective and not suspended pursuant
to Section 2 of the Registration Rights Agreement, the Shares may be sold
pursuant to the prospectus contained in the Registration Statement. The Company
shall cause the transfer agent to confirm, for the benefit of the holders, that
no further opinion of counsel is required at the time of transfer in order to
issue such shares without such restrictive legend.
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The legend set forth above shall be removed and the Company 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 the Company 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 the Company with reasonable assurances that such Shares can be
sold under Rule 144(k).
(h) Residency. Such Purchaser is a resident of the jurisdiction set
forth under such Purchaser's name on Schedule I hereto.
(i) Authorization; Enforcement. Such Purchaser has full power and
authority to enter into this Agreement and the Registration Rights Agreement.
This Agreement and the Registration Rights Agreement have been duly and validly
authorized, executed and delivered on behalf of such Purchaser and are valid and
binding agreements of such Purchaser enforceable against such Purchaser in
accordance with their terms; except as such enforceability may be limited by
bankruptcy laws and other similar laws affecting creditors' rights generally and
general principles of equity.
(j) Company Rights. Such Purchaser acknowledges that the Company has
certain rights, exercisable at the option of the Company, with respect to the
"forced" exercise of its outstanding warrants upon the occurrence of certain
events, and that the determination of whether and how to exercise such rights or
pursue any alternative course of action is to be made by the Board of Directors
(the "Company Rights"). The Company represents that it has fully and accurately
disclosed the material terms of the Company Rights in an SEC Document.
The Purchasers' representations and warranties made in Sections 2(a)
through (j) are made solely for the purpose of permitting the Company to make a
determination that the offer and sale of the Shares pursuant to this Agreement
complies with applicable U.S. federal and state securities laws and not for any
other purpose, except for the representations set forth in Section 2(a)
regarding broker-dealer affiliation and lack of transactions with respect to the
Common Stock. Accordingly, the Company should not rely on such representations
and warranties for any other purpose.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as follows:
(a) Organization and Qualification; Subsidiaries. The Company is a
corporation duly organized and existing in good standing under the laws of the
jurisdiction in which it is incorporated, and has the requisite corporate power
to own its properties and to carry on its business as now being conducted. The
Company has sufficient licenses, permits and other governmental authorizations
currently required for the conduct of its business or ownership of properties
and is in all material respects complying therewith. Except as disclosed in the
SEC Documents (as defined in Section 3(g) below) filed prior to the date hereof
or on Schedule 3(a), the Company has no direct or indirect subsidiaries. Except
as set forth on Schedule 3(a), the Company is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which the nature of the business conducted by it makes such qualification
necessary and where the failure so to qualify could have a Material Adverse
Effect. "Material Adverse Effect" means any material adverse effect on (i) the
ability of the Company to perform its obligations under this Agreement or the
Registration Rights Agreement or (ii) the business, operations, properties or
financial condition of the Company, other than changes or effects which
primarily result from developments, changes or conditions (A) generally
affecting the industries or segments in which the Company and its subsidiaries
operate, (B) in general economic, market or political conditions or (C)
resulting or arising from the announcement of the transactions contemplated by
this Agreement.
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(b) Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement and the Registration Rights Agreement, to issue and sell the
Shares in accordance with the terms hereof; (ii) the execution, delivery and
performance of this Agreement and the Registration Rights Agreement by the
Company and the consummation by it of the transactions contemplated hereby and
thereby (including, without limitation, the issuance of the Shares) have been
duly authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, any committee of the Board
of Directors or the Company's stockholders is required, and (iii) this Agreement
constitutes, and, upon execution and delivery by the Company of the Registration
Rights Agreement, such agreements will constitute, valid and binding obligations
of the Company enforceable against the Company in accordance with their terms;
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or moratorium laws or other similar laws affecting creditors'
rights generally and general principles of equity.
(c) Stockholder Authorization. Neither the execution, delivery or
performance by the Company of its obligations under this Agreement or the
Registration Rights Agreement, nor the consummation by it of the transactions
contemplated hereby or thereby (including, without limitation, the issuance of
the Shares) requires any consent or authorization of the Company's stockholders,
including but not limited to consent under Rule 4350(i) promulgated by the
National Association of Shares Dealers, Inc. (the "NASD") or any similar rule.
(d) Capitalization. The capitalization of the Company as of the date
hereof, including the authorized capital stock, the number of shares issued and
outstanding, the number of shares issuable and reserved for issuance pursuant to
the Company's stock option plans and the number of shares issuable and reserved
for issuance pursuant to securities exercisable or exchangeable for, or
convertible into, any shares of capital stock, is set forth on Schedule 3(d).
All of such shares of the Company's capital stock have been, or upon issuance,
will be, validly issued, fully paid and non-assessable. No shares of capital
stock of the Company (including the Shares) are subject to preemptive rights or
any other similar rights of the stockholders of the Company or any liens or
encumbrances. Except for the Shares and as set forth on Schedule 3(d), as of the
date of this Agreement, (i) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exercisable or
exchangeable for, any shares of capital stock of the Company or arrangements by
which the Company is or may become bound to issue additional shares of capital
stock of the Company nor, other than in the ordinary course pursuant to the
Company's existing director and employee equity compensation plans and stock
purchase plan, are any such issuances or arrangements contemplated, and (ii)
except as set forth on Schedule 3(d), there are no agreements or arrangements
under which the Company is obligated to register the sale of any of its
securities under the Securities Act (other than the Registration Rights
Agreement). Except as set forth on Schedule 3(d), none of the anti-dilution or
similar provisions contained in any of the Company's issued and outstanding
securities or instruments will be triggered by the issuance of the Shares in
accordance with the terms of this Agreement. The Company has furnished to the
Purchaser true and correct copies of the Company's Certificate of Incorporation
as in effect on the date hereof ("Certificate of Incorporation"), and the
Company's Bylaws as in effect on the date hereof (the "Bylaws").
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(e) Issuance of Shares. The Shares have been (or will be on or prior to
the Closing) duly authorized and, upon issuance in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable and free
from all taxes, liens, claims and encumbrances (other than encumbrances or
restrictions imposed on such Shares by creditors of the Purchasers or in
connection with any agreement or arrangement made by any Purchaser other than
this Agreement). The Shares will not impose personal liability on the holders
thereof.
(f) No Conflicts. The execution, delivery and performance by the
Company of this Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated hereby and thereby (including,
without limitation, the issuance of the Shares) will not (i) result in a
violation of the Certificate of Incorporation or Bylaws or (ii) except as set
forth on Schedule 3(f), conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment (including, without limitation, the
triggering of any anti-dilution provisions), acceleration or cancellation of,
any material agreement, indenture or instrument to which the Company is a party,
or (iii) subject to the accuracy of the representations and warranties of each
Purchaser set forth in Section 2, result in a violation of any law, rule,
regulation, order, judgment or decree (including United States federal and state
securities laws and regulations and rules or regulations of any self-regulatory
organizations to which the Company or its securities are subject) applicable to
the Company or by which any property or asset of the Company is bound or
affected. The Company is not in violation of its Certificate of Incorporation,
Bylaws or other organizational documents and, except as could not have a
Material Adverse Effect, the Company is not in default (and no event has
occurred which, with notice or lapse of time or both, would put the Company in
default) under nor has there occurred any event giving others (with notice or
lapse of time or both) any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company is
a party. The business of the Company is not being conducted in violation of any
law, ordinance or regulation of any governmental entity, except for possible
violations the sanctions for which either singly or in the aggregate could not
have a Material Adverse Effect. Except as specifically contemplated by this
Agreement, the Registration Rights Agreement and other than the filing of a
Notification Form for Listing of Additional Shares with Nasdaq with respect to
the Shares, the Company is not required to obtain any consent, approval,
authorization or order of, or make any filing or registration with, any court or
governmental agency or any regulatory or self regulatory agency or other third
party in order for it to execute, deliver or perform any of its obligations
under this Agreement or the Registration Rights Agreement in accordance with the
terms hereof or thereof. The Company is not in violation of the listing
requirements of the NASDAQ National Market ("NNM") and does not know of any
grounds for the delisting of such Common Stock.
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(g) SEC Documents, Financial Statements. Except as set forth on
Schedule 3(g), since June 1, 2005, the Company has timely filed (within
applicable extension periods) each annual, quarterly, current and other report,
proxy statement, schedule, form, and other document required to be filed by it
with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (all of the foregoing, and collectively with any documents filed
by the Company pursuant to the Securities Act, filed prior to the date hereof
and all exhibits included therein and financial statements and schedules thereto
and documents incorporated by reference therein, being hereinafter referred to
herein as the "SEC Documents"). As of their respective dates, subject to
Schedule 3(g), the SEC Documents complied in all material respects with the
requirements of the Exchange Act or the Securities Act, as the case may be, and
the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they were filed with
the SEC, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Subject to Schedule 3(g), none of the statements made in any
such SEC Documents is, or has been, required to be amended or updated under
applicable law (except for such statements as have been amended or updated in
subsequent filings made prior to the date hereof). All material agreements that
are required to have been filed as exhibits to the SEC Documents under Item 601
of Regulation S-K to which the Company is a party or to which the property or
assets of the Company are subject have been filed as exhibits to the SEC
Documents. Subject to Schedule 3(g), as of their respective dates, the financial
statements of the Company included in the SEC Documents complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC applicable with respect thereto. Such financial
statements have been prepared in accordance with U.S. generally accepted
accounting principles ("GAAP"), consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such financial statements
or the notes thereto, or (ii) in the case of unaudited interim statements, to
the extent they may not include footnotes or may be condensed or summary
statements) and fairly present the financial position of the Company as of the
dates thereof and the results of operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to immaterial year-end
audit adjustments). Except as set forth in the financial statements of the
Company included in the SEC Documents filed prior to the date hereof, the
Company has no liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to the date of such
financial statements and (ii) obligations under contracts and commitments
incurred in the ordinary course of business subsequent to the date of such
financial statements and not required under GAAP to be reflected in such
financial statements, which liabilities and obligations referred to in clauses
(i) and (ii), individually or in the aggregate, are not material to the
financial condition or operating results of the Company.
(h) Absence of Certain Changes. Except as set forth on Schedule 3(h),
since December 31, 2005, there has been no change or development in the
business, properties, operations, financial condition or results of operations
of the Company which would be reasonably expected to have a Material Adverse
Effect, except as disclosed in the SEC Documents filed prior to the date hereof.
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(i) Absence of Litigation. Except as disclosed in the SEC Documents
filed prior to the date hereof or in Schedule 3(i), there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body, including, without
limitation, the SEC or NNM, pending or, to the knowledge of the Company,
threatened against or affecting the Company, or any of its directors or officers
in their capacities as such.
(j) Intellectual Property. The Company owns or is licensed to use all
patents, patent applications, trademarks, trademark applications, trade names,
service marks, copyrights, copyright applications, licenses, permits,
inventions, discoveries, processes, scientific, technical, engineering and
marketing data, object and source codes, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) and other similar rights and proprietary knowledge
necessary for the conduct of its business as now being conducted (collectively,
"Intangibles"). Except as set forth on Schedule 3(j) hereto, and to the
knowledge of the Company, it does not infringe and is not in conflict with any
right of any other person with respect to any Intangibles. Except as set forth
on Schedule 3(j), the Company has not received written notice of any pending
conflict with or infringement upon such third party Intangibles since July 1,
2004. Except as disclosed in the SEC documents filed prior to the date hereof,
the Company has not entered into any consent agreement, indemnification
agreement, forbearance to xxx or settlement agreement with respect to the
validity of the Company's ownership or right to use its Intangibles and, to the
knowledge of the Company, there is no reasonable basis for any such claim to be
successful. The Intangibles are valid and enforceable and no registration
relating thereto has lapsed, expired or been abandoned or canceled or is the
subject of cancellation or other adversarial proceedings, and all applications
therefor are pending and in good standing. The Company has complied, in all
material respects, with its contractual obligations relating to the protection
of the Intangibles used pursuant to licenses. Except as set forth on Schedule
3(j), and to the knowledge of the Company, no person is infringing on or
violating the Intangibles owned or used by the Company.
(k) Disclosure. The Company has made available to the Purchasers all
the information reasonably available to the Company that the Purchasers have
requested for deciding whether to acquire the Common Stock, including certain
Company financial projections of future performance. The financial projections
of the Company for the periods ending on or within the calendar year ending
December 31, 2006 and provided to the Purchasers by the Company (the
"Projections") were prepared in good faith by the Company's management and, to
the Company's knowledge, based on reasonable assumptions; however, the Company
does not warrant that it will achieve the results contemplated by the
Projections.
(l) Acknowledgment Regarding Purchasers' Purchase of the Shares. The
Company acknowledges and agrees that the Purchasers are not acting as a
financial advisor or fiduciary of the Company (or in any similar capacity) with
respect to this Agreement or the transactions contemplated hereby, the
relationship between the Company and the Purchasers is "arms-length" and, except
for the Purchasers' representations and warranties in Section 2 hereof, any
statement made by any Purchaser or any of their representatives or agents in
connection with this Agreement and the transactions contemplated hereby is
merely incidental to the Purchasers' purchase of the Shares and has not been
relied upon by the Company, its officers or directors in any way. The Company
further acknowledges that the Company's decision to enter into this Agreement
has been based solely on an independent evaluation by the Company and its
representatives.
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(m) Form S-3 Eligibility. The Company is currently eligible to register
the resale of its Common Stock on a registration statement on Form S-3 under the
Securities Act. There exist no facts or circumstances that would prohibit or,
except as disclosed in Schedule 3(m) delay, the preparation and filing of a
registration statement on Form S-3 with respect to the Registrable Securities
(as defined in the Registration Rights Agreement). The Company has no basis to
believe that its past or present independent public auditors will withhold their
consent to the inclusion, or incorporation by reference, of their audit opinion
concerning the Company's financial statements which are included in the
Registration Statement required to be filed pursuant to the Registration Rights
Agreement.
(n) No General Solicitation. Neither the Company nor any distributor
participating on the Company's behalf in the transactions contemplated hereby
(if any) nor any person acting for the Company, or any such distributor, has
conducted any "general solicitation," as such term is defined in Regulation D,
with respect to any of the Shares being offered hereby.
(o) No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would require registration of the
Shares being offered hereby under the Securities Act or cause the offering of
Shares to be integrated with any prior offering of securities of the Company for
purposes of the Securities Act, the result of such integration which would
require registration under the Securities Act, or any applicable stockholder
approval provisions, including, without limitation, Rule 4350(i) of the NASD or
any similar rule.
(p) No Brokers. The Company has taken no action that would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments by the Purchaser relating to this Agreement or the transactions
contemplated hereby.
(q) Listing and Maintenance Requirements. The Company's Common Stock
recommenced trading on the NNM in November 2005. The Company has not, in the two
years preceding the date hereof, received notice (written or oral) from any
Trading Market (as defined below) on which the Common Stock is or has been
listed or quoted to the effect that the Company is not in compliance with the
listing or maintenance requirements of such Trading Market. The Company is in
compliance with all such listing and maintenance requirements. "Trading Market"
means the NNM or any other eligible market, or any national securities exchange,
market or trading or quotation facility on which the Common Stock is then listed
or quoted.
(r) Tax Status. Except as set forth on Schedule 3(r), the Company has
made or filed all foreign, U.S. federal, state and local income and all other
tax returns, reports and declarations required by any jurisdiction to which it
is subject and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and has set
aside on its books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim. The Company has not executed a
waiver with respect to any statute of limitations relating to the assessment or
collection of any federal, state or local tax. None of the Company's tax returns
are presently being audited by any taxing authority.
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(s) Insurance. The Company has in force fire, casualty, product
liability and other insurance policies, with extended coverage, sufficient in
amount to allow it to replace any of its material properties or assets which
might be damaged or destroyed and sufficient to cover liabilities to which the
Company may reasonably become subject, and such types and amounts of other
insurance with respect to its business and properties as are customarily carried
by persons engaged in the same or similar business as the Company. To the
knowledge of the Company, no event has occurred that could give rise to a
material default under any such policy.
(t) Environmental Matters. There is no environmental litigation or
other environmental proceeding pending or threatened by any governmental
regulatory authority or others with respect to the current or any former
business of the Company or any partnership or joint venture currently or at any
time affiliated with the Company. No state of facts exists as to environmental
matters or Hazardous Substances (as defined below) that could involve a material
capital expenditure by the Company or that could otherwise have a Material
Adverse Effect. No Hazardous Substances have been treated, stored or disposed
of, or otherwise deposited, in or on the properties owned or, to the knowledge
of the Company, leased by the Company or by any partnership or joint venture
currently or at any time affiliated with the Company in violation of any
applicable environmental laws. The environmental compliance programs of the
Company comply in all material respects with all environmental laws, whether
federal, state or local, currently in effect. As used herein, "Hazardous
Substances" means any substance, waste, contaminant, pollutant or material that
has been determined by any governmental authority to be capable of posing a risk
of injury to health, safety, property or the environment.
(u) Investment Company. The Company is not, and is not controlled by or
under common control with an affiliate of an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(v) Internal Accounting Controls. Except as disclosed in the SEC
Documents, or on Schedule 3(v), the Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
10
(w) Transfer Taxes. On the Closing Date, all stock transfers or other
taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Shares to be sold to the Purchaser hereunder will
be, or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
(x) Application to Takeover Protection. None of the transactions
contemplated by this Agreement or the Registration Rights Agreements will
trigger any "poison pill" provisions of any of the Company's stockholders'
rights plans or similar arrangements.
4. COVENANTS.
(a) Best Efforts. The parties shall use their best efforts timely to
satisfy each of the conditions described in Section 6 and Section 7 of this
Agreement prior to Closing. Each of the Purchasers shall use its reasonable best
efforts to obtain its respective portion of the cash payment of the purchase
price as soon as practicable after execution of this Agreement.
(b) Form D: Blue Sky Laws. As soon as reasonably practicable after the
Closing Date, the Company shall file with the SEC a Form D with respect to the
Shares as required under Regulation D and provide a copy thereof to the
Purchasers promptly after such filing. The Company shall, on or before the
Closing Date, take such action as the Company shall reasonably determine is
necessary to qualify the Shares for sale to the Purchasers pursuant to this
Agreement under applicable securities or "blue sky" laws of the states of the
United States or obtain exemption therefrom, and shall provide evidence of any
such action so taken to the Purchasers on or prior to the Closing Date. Within
ten (10) days after the Closing Date, the Company shall file a Current Report on
Form 8-K concerning this Agreement and the transactions contemplated hereby and
attach this Agreement as an exhibit thereto.
(c) Reporting Status. So long as any Purchaser has rights for its
Shares to be registered by the Company, the Company shall use all commercially
reasonable efforts to timely file all reports required to be filed with the SEC
pursuant to the Exchange Act, and the Company shall not terminate its status as
an issuer required to file reports under the Exchange Act even if the Exchange
Act or the rules and regulations thereunder would permit such termination,
except in connection with a business combination or merger in which the Shares
are converted into consideration constituting cash or the equity of another
publicly-traded entity. In addition, so long as the Purchaser has rights for its
Shares to be registered by the Company, the Company shall use all commercially
reasonable efforts to take all actions necessary to meet the "registrant
eligibility" requirements set forth in the general instructions to Form S-3 or
any successor form thereto, to continue to be eligible to register the resale of
its Common Stock on a registration statement on Form S-3 under the Securities
Act.
(d) Use of Proceeds. The Company shall use the proceeds from the sale
of the Shares as set forth in Schedule 4(d).
(e) Listing. The Company shall maintain, for so long as a Purchaser
owns any Shares, the listing of the Shares on each national securities exchange
or automated quotation system on which shares of Common Stock are currently
listed. The Company shall promptly provide to each Purchaser copies of any
notices it receives regarding the continued eligibility of the Common Stock for
trading on NNM or, if applicable, any securities exchange or automated quotation
system on which securities of the same class or series issued by the Company are
then listed or quoted, if any.
11
(f) Corporate Existence. So long as any Purchaser beneficially owns any
Shares, the Company shall maintain its corporate existence, and in the event of
a merger, consolidation or sale of all or substantially all of the Company's
assets, the Company shall ensure that the surviving or successor entity in such
transaction assumes the Company's obligations hereunder, under the Registration
Rights Agreement and under the agreements and instruments entered into in
connection herewith and therewith. The foregoing shall not apply in the event of
a merger, consolidation of the Company into any other corporation, or the sale
or conveyance of all or substantially all of the assets of the Company where (i)
the consideration paid to the Purchaser consists solely of cash or (ii) the
surviving or successor entity is a publicly traded corporation whose common
stock is listed for trading on the NNM or the New York Stock Exchange and the
consideration paid to the Purchaser in such transactions consists of freely
tradeable securities.
(g) No Integrated Offerings. The Company shall not make any offers or
sales of any security (other than the Shares sold pursuant to this Agreement)
under circumstances that would require registration of the Shares being offered
or sold hereunder under the Securities Act or cause this offering of the Shares
to be integrated with any other offering of securities by the Company for
purposes of any stockholder approval provision applicable to the Company or its
securities.
(h) Legal Compliance. The Company shall conduct its business in
material compliance with all laws, ordinances or regulations of governmental
entities applicable to such business.
(i) Board of Directors. The Company shall cause the size of the Board
of Directors of the Company to increase to seven (7) directors. For so long as
it, together with its affiliated entities constituting a "group" for purposes of
reporting under Section 13 of the Exchange Act, beneficially owns at least five
(5) percent of the Company's outstanding Common Stock, Crosslink Capital
("Crosslink") shall be entitled to designate one individual (the "Crosslink
Director") to be appointed by the Board of Directors to fill the vacancy in the
Board of Directors created thereby effective upon the consummation of the sale
of the Shares hereunder, which individual shall initially be Xxxxxxx Xxxxxx. For
so long as Crosslink and its Affiliates constituting a "group" for purposes of
reporting under Section 13 of the Exchange Act, owns at least five (5) percent
of the Company's outstanding Common Stock, the Company shall use its reasonable
best efforts to cause its stockholders to elect the Crosslink Director to the
Board of Directors of the Company at each annual or special meeting of
stockholders at which an election of directors is held or pursuant to any
written consent of the stockholders. Crosslink and any Crosslink director
acknowledge their respective obligations under applicable securities laws and
the Company's xxxxxxx xxxxxxx policy, a copy of which has been provided to the
foregoing.
(j) Inspection of Properties and Books. So long as the Purchasers
continue to hold, in the aggregate, at least five (5) percent of the Company's
outstanding Common Stock, such Purchasers and its representatives and agents
(collectively, the "Inspectors") shall have the right upon reasonable notice to
the Company and during business hours, no more than once in every three month
period after the date hereof, or more frequently solely in connection with a
proposed underwritten offering in connection with any resale by Purchasers of
the Shares, at the Purchasers' expense, to visit and inspect any of the
properties of the Company, to examine the books of account and records of the
Company, to make or be provided with copies and extracts therefrom, to discuss
the affairs, finances and accounts of the Company with, and to be advised as to
the same by, its and their officers, employees and independent public
accountants (and by this provision the Company authorizes such accountants to
discuss such affairs, finances and accounts, whether or not a representative of
the Company is present) all at such reasonable times and intervals and to such
reasonable extent as the Purchasers may desire; provided, however, that each
Inspector shall hold in confidence and shall not make any disclosure (except to
the Purchasers, and in such case, obligating the Purchasers to hold such
information in confidence and to comply with obligations under applicable
securities laws) of any such information which the Company determines in good
faith to be confidential, and of which determination the Inspectors are so
notified, unless (a) the disclosure of such information is necessary to avoid or
correct a misstatement or omission in any Registration Statement filed pursuant
to the Registration Rights Agreement, (b) the release of such information is
ordered pursuant to a subpoena or other order from a court or government body of
competent jurisdiction, or (c) such information has been made generally
available to the public other than by disclosure in violation of this or any
other agreement.
12
(k) Expenses. The Company shall pay to Crosslink at the Closing, up to
$35,000 for expenses actually incurred by Crosslink and its advisors in
connection with the negotiation, preparation, execution and delivery of this
Agreement, the Registration Rights Agreement and the other agreements to be
executed in connection herewith and therewith (the "Expense Payment"). In the
event that the Expense Payment is less that $35,000, then the Company shall pay
to Crosslink on the Effectiveness Date (as defined in the Registration Rights
Agreement), up to an amount equal to the difference between the Expense Payment
and $35,000 for expenses incurred by Crosslink in connection with the
preparation and filing of the Registration Statement (as defined in the
Registration Rights Agreement) and any related activities. If any action at law
or in equity is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
5. TRANSFER AGENT INSTRUCTIONS.
(a) The Company shall instruct its transfer agent to issue
certificates, registered in the name of each Purchaser or its nominee, for the
Shares in such denominations as specified by such Purchaser to the Company.
(b) The Company warrants that no instruction other than the
instructions referred to in this Agreement (including, without limitation,
Sections 2(f) and 2(g)), will be given by the Company to its transfer agent and
that the Shares shall otherwise be freely transferable on the books and records
of the Company as and to the extent provided in this Agreement and the
Registration Rights Agreement.
13
(c) If a Purchaser provides the Company and the transfer agent with an
opinion of counsel, which opinion of counsel 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 registration, or a Purchaser provides the Company
with an opinion or counsel or such other reasonable assurances reasonably
acceptable to the transfer agent that such Shares may be sold under Rule 144,
the Company shall permit the transfer.
(d) If any certificate or instrument evidencing any Shares is
mutilated, lost, stolen or destroyed, the Company shall issue or cause to be
issued, in exchange and substitution for and upon cancellation thereof, or in
lieu of and substitution therefor, a new certificate or instrument, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity, if requested, and
upon satisfaction by the Purchaser of any requirements of the Company's transfer
agent. The applicants for a new certificate or instrument under such
circumstances shall also pay any reasonable third-party costs associated with
the issuance of such replacement Shares.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Shares to
the Purchasers hereunder is subject to the satisfaction, at or before the
Closing of each of the following conditions, provided that these conditions are
for the Company's sole benefit and may be waived in writing by the Company at
any time in its sole discretion:
(a) Each of the Purchasers shall have executed this Agreement and the
Registration Rights Agreement.
(b) Each Purchaser shall have delivered the purchase price set forth
opposite its name on Schedule I hereto for the Shares being purchased by it at
the Closing in accordance with Section 1(b) above.
(c) The representations and warranties of each Purchaser shall be true
and correct as of the date when made and as of the Closing Date as though made
at that time (except for representations and warranties that speak as of a
specific date, which representations and warranties shall be true and correct as
of such date), and each Purchaser shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Purchasers
at or prior to the Closing.
(d) No statute, rule, regulation, executive order, decree, ruling,
injunction, action or proceeding shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction or
any self-regulatory organization having authority over the matters contemplated
hereby which questions the validity of, challenges or prohibits the consummation
of any of the transactions contemplated by this Agreement.
14
7. CONDITIONS TO THE PURCHASERS' OBLIGATION TO PURCHASE.
The obligation of the Purchasers hereunder to purchase the Shares from
the Company hereunder is subject to the satisfaction, at or before the Closing
of each of the following conditions, provided that such conditions are for the
Purchasers' sole benefit and may be waived in writing by the Purchasers at any
time in the Purchasers' sole discretion:
(a) The Company shall have executed this Agreement and the Registration
Rights Agreement.
(b) The Company shall have delivered to the Purchasers duly executed
certificates (each in such denominations as each Purchaser shall reasonably
request) representing the Shares being so purchased by the Purchasers at the
Closing in accordance with Section 1(b) above.
(c) The Common Stock shall be listed on NNM and trading in the Common
Stock (or NNM generally) shall not have been suspended.
(d) Other than Section 3(h) (which shall not be "brought down" to
Closing), the representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties that
speak as of a specific date, which representations and warranties shall be true
and correct as of such date), except where such failure to be true and correct
would not have a Material Adverse Effect, and the Company shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing. The Purchasers shall have
received a certificate, executed by the Chief Executive Officer of the Company
after reasonable investigation, dated as of the Closing Date to the foregoing
effect and as to such other matters as may reasonably be requested by the
Purchasers.
(e) No statute, rule, regulation, executive order, decree, ruling,
injunction, action or proceeding shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction or
any self-regulatory organization having authority over the matters contemplated
hereby which questions the validity of, challenges or prohibits the consummation
of, any of the transactions contemplated by this Agreement.
(f) As of the Closing, the authorized size of the Board of Directors
shall be seven (7) and Xxxxxxx Xxxxxx shall be appointed to serve as a member of
the Board of Directors upon the consummation of the sale of the Shares
hereunder.
(g) The Purchasers shall have received an opinion of Xxxxxx, Xxxx &
Xxxxxxxx LLP, dated as of the Closing Date in substantially the form of Exhibit
B attached hereto.
(h) The Secretary or the Assistant Secretary of the Company shall
deliver to the Purchasers at the Closing a certificate stating that all Board of
Directors and stockholder approvals necessary to authorize the performance by
the Company of its obligations contemplated by this Agreement have been obtained
and attaching thereto: (i) a copy of the Certificate of Incorporation (with any
and all certificates of designation) and the Bylaws (as amended through the date
of the Closing), certified by the Secretary or the Assistant Secretary of the
Company as the true and correct copies thereof as of the Closing; (ii) a copy of
the resolutions of the Board of Directors and, if required, the stockholders of
the Company, authorizing the execution and delivery of this Agreement and the
Registration Rights Agreement, the issuance of the Shares and other matters
contemplated hereby and (iii) a schedule of each of the material agreements
filed by the Company since September 28, 2005 with the SEC.
15
8. GOVERNING LAW; MISCELLANEOUS.
(a) Governing Law; Jurisdiction. This 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. The Company and the
Purchasers 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 Agreement and irrevocably agree that
all claims in respect of such suit or proceeding may be determined in such
courts. The Company and the Purchasers 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.
(b) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile or other electronic
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement. In the event any signature is delivered by facsimile
or other electronic transmission, the party using such means of delivery shall
cause the manually executed execution page or pages hereof to be physically
delivered to the other party within five (5) business days of the execution
hereof, provided that the failure to so deliver any manually executed execution
page shall not affect the validity or enforceability of this Agreement.
(c) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement or
the validity or enforceability of this Agreement in any other jurisdiction.
(e) Entire Agreement; Amendments. This Agreement and the transaction
documents and certificates referenced herein contain the entire understanding of
the Purchasers, the Company, their affiliates and persons acting on their behalf
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Purchasers
make any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived other than by an
instrument in writing signed by the party to be charged with enforcement and no
provision of this Agreement may be amended other than by an instrument in
writing signed by the Company and the Purchasers.
16
(f) Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally, by responsible overnight carrier or
by confirmed facsimile, and shall be effective five (5) days after being placed
in the mail, if mailed, or one (1) day after being delivered to responsible
overnight carrier, or upon receipt or refusal of receipt, if delivered
personally or confirmed facsimile, in each case addressed to a party. The
addresses for such communications shall be:
If to the Company:
Adept Technology, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Chief Executive Officer
with a copy simultaneously transmitted by like means to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
Post Xxxxxxxxxx Center
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
If to a Purchaser, as set forth on such Purchaser's execution page
hereto.
Each party shall provide notice to the other parties of any change in
address pursuant to this clause (f).
(g) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. The
Company may not assign this Agreement or any rights or obligations hereunder.
Subject to compliance with applicable laws, rules and regulations, including all
applicable securities laws, and agreement by any assignee or transferee of the
representations to be bound by the terms and conditions of this Agreement and
the Registration Rights Agreement, the Purchasers may assign and transfer some
or all of their rights hereunder and some or all of the Shares without the prior
consent of the Company, but shall provide written notice of assignment to the
Company promptly after such assignment is effected. Notwithstanding anything to
the contrary contained in this Agreement or the Registration Rights, the Shares
may be pledged and all rights of a Purchaser under this Agreement or any other
agreement or document related to the transactions contemplated hereby may be
assigned, without further consent of the Company, to a bona fide pledgee in
connection with such Purchaser's margin or brokerage account, subject to
compliance with applicable laws, rules and regulations, including all applicable
securities laws.
17
(h) Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(i) Survival. The representations and warranties and the agreements and
covenants set forth in Sections 2, 3, 4, 5 and 8 hereof shall survive for one
(1) year following the Closing. Moreover, none of the representations and
warranties made by one party herein shall act as a waiver of any rights or
remedies the other party may have under applicable U.S. federal or state
securities laws. The Company shall indemnify and hold harmless the Purchasers
and each of the Purchasers' officers, directors, employees, partners, members,
agents and affiliates for all losses or damages (including without limitation
reasonable attorneys' fees) arising as a result of or related to any breach or
alleged breach by the Company of any of its representations or covenants set
forth herein, including without limitation the advancement of expenses as they
are incurred. Except as otherwise set forth herein, the mechanics and procedures
with respect to the rights and obligations under this Section 7(i) shall be the
same as those set forth in Sections 6(a) and 6(c) of the Registration Rights
Agreement, including, without limitation, those procedures with respect to the
settlement of claims and the Company's right to assume the defense of claims.
(j) Publicity. Crosslink shall have the right to approve before
issuance any press releases, Current Reports filed on Form 8-K, or any other
public statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the prior
approval of Crosslink, to make any press release or Current Report filed on Form
8-K with respect to such transactions as is required by applicable law and
regulations or NNM listing requirements (although the Company shall use
commercially reasonable efforts to consult with Crosslink in connection with any
such press release and filing prior to its release and shall provide Crosslink
with a copy thereof). The Company shall issue a press release announcing the
closing of this transaction within three (3) business days of the Closing Date.
(k) Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(l) Termination. In the event that the Closing shall not have occurred
on or before July 10, 2006, unless the parties agree otherwise, this Agreement
shall terminate at the close of business on such date. Notwithstanding any
termination of this Agreement, any party not in breach of this Agreement shall
preserve all rights and remedies it may have against another party hereto for a
breach of this Agreement prior to or relating to the termination hereof.
18
(m) Joint Participation in Drafting. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement and the
Registration Rights Agreement. As such, the language used herein and therein
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.
(n) For purposes hereof, "Business Day" means any day except Saturday,
Sunday or other day on which commercial banks in the City of New York are
authorized or required to close by law.
(o) For purposes hereof, "knowledge of the Company" means (i) the
actual knowledge of each of Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxxxx, Xxxx Xxxxxx,
Xxx Xxxxx, and Xxxx Xxxxxxxxx and (ii) that knowledge which such persons could
have obtained if they had made the due inquiry and exercised the due diligence
that a prudent business person would have made or exercised with respect to the
management of his or her business affairs.
[SIGNATURE PAGES FOLLOW]
19
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
ADEPT TECHNOLOGY, INC.
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
PURCHASER: 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 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
The address for purposes of notice hereunder, for each of the above named
Purchasers shall be:
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel (000) 000-0000
In each case, with a copy (which shall not constitute notice) simultaneously
transmitted by like means to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Mo, Esq.
SCHEDULE I
SCHEDULE OF PURCHASERS
Number of Shares Aggregate
Purchaser Being Purchased Purchase Price of Shares
------------------------ -------------------------------
CROSSLINK VENTURES IV, L.P. 356,022 $4,868,670.00
CROSSLINK OMEGA VENTURES IV GmbH & Co. KG 14,894 $203,680.00
OFFSHORE CROSSLINK OMEGA VENTURES IV,
(a Cayman Islands Unit Trust) 114,615 $1,567,380.00
OMEGA BAYVIEW IV, L.L.C. 28,226 $386,000.00
CROSSLINK CROSSOVER FUND IV, L.P. 217,494 $2,974,270.00
------------------------- ------------------------------
Total:
SCHEDULE 4(d)
USE OF PROCEEDS
The Company shall use the proceeds from the sale and issuance of the Shares for
general corporate purposes and working capital. Such proceeds shall not be used
to (i) pay dividends, other than dividends contemplated by the Certificate of
Incorporation; (ii) pay for any increase in executive compensation or make any
loan or other advance to any officer, employee, stockholder, director or other
affiliate of the Company, without the express approval of the Board of Directors
acting in accordance with past practice; (iii) purchase debt or equity
securities of any entity (including redeeming the Company's own securities),
except for (A) evidences of indebtedness issued or fully guaranteed by the
United States of America and having a maturity of not more than one year from
the date of acquisition, (B) certificates of deposit, notes, acceptances and
repurchase agreements having a maturity of not more than one year from the date
of acquisition issued by a bank organized in the United States having capital,
surplus and undivided profits of at least $500,000,000, (C) the highest-rated
commercial paper having a maturity of not more than one year from the date of
acquisition, (D) "Money Market" fund shares, or money market accounts fully
insured by the Federal Deposit Insurance Corporation and sponsored by banks and
other financial institutions, (E) in connection with strategic acquisitions
approved by the Company's Board of Directors upon exercise of its reasonable
business judgment; or (F) purchases or sales of securities pursuant to any
Company management investment policy which may be approved by the Company's
Board of Directors; or (iv) except as permitted in (E) above, make any
investment not directly related to the current business of the Company.
