EXHIBIT 10.3
SILICON VALLEY BANK
LOAN AND SECURITY AGREEMENT
BORROWERS: ANIMAS CORPORATION ("COMPANY")
AND ANIMAS DIABETES CARE, LLC
ADDRESS: 000 XXXXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXX 00000
DATE: NOVEMBER 7, 2003
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") is entered into on
the above date between SILICON VALLEY BANK ("Silicon"), whose address is 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office
located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 and the borrower(s) named above (jointly and severally, the
"Borrower"), whose chief executive office is located at the above address
("Borrower's Address"). The Schedule to this Agreement (the "Schedule") shall
for all purposes be deemed to be a part of this Agreement, and the same is an
integral part of this Agreement. (Definitions of certain terms used in this
Agreement are set forth in Section 8 below.)
1. LOANS.
1.1 LOANS. Silicon will make loans to Borrower (the "Loans") up to the
amounts (the "Credit Limit") shown on the Schedule, provided no Default or Event
of Default has occurred and is continuing, and subject to deduction of Reserves
for accrued interest and such other Reserves as Silicon deems proper from time
to time in its good faith business judgment. Amounts borrowed may be repaid and
reborrowed at any time during the term of this Agreement, without premium or
penalty.
1.2 INTEREST. All Loans and all other monetary Obligations shall bear
interest at the rate shown on the Schedule, except where expressly set forth to
the contrary in this Agreement. Interest shall be payable monthly, on the last
day of the month. Interest may, in Silicon's discretion, be charged to
Borrower's loan account, and the same shall thereafter bear interest at the same
rate as the other Loans. Silicon may, in its discretion, charge interest to
Borrower's Deposit Accounts maintained with Silicon.
1.3 OVERADVANCES. If at any time or for any reason the total of all
outstanding Loans and all other monetary Obligations (including all Letters of
Credit, Foreign Exchange Contracts and Cash Management Services) exceeds the
Credit Limit (an "Overadvance"), Borrower shall immediately pay the amount of
the excess to Silicon, without notice or demand. Without limiting Borrower's
obligation to repay to Silicon the amount of any Overadvance, Borrower agrees to
pay Silicon interest on the outstanding amount of any Overadvance, on demand, at
the Default Rate.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
1.4 FEES. Borrower shall pay Silicon the fees shown on the Schedule, which
are in addition to all interest and other sums payable to Silicon and are not
refundable.
1.5 LOAN REQUESTS. To obtain a Loan, Borrower shall make a request to
Silicon by facsimile or telephone. Loan requests received after 12:00 Noon
(Eastern time) will not be considered by Silicon until the next Business Day.
Silicon may rely on any telephone request for a Loan given by a person whom
Silicon reasonably believes is an authorized officer of Borrower, and Borrower
will indemnify Silicon for any loss Silicon suffers as a result of that
reliance.
1.6 LETTERS OF CREDIT. At the request of Borrower, Silicon may, in its good
faith business judgment, issue or arrange for the issuance of letters of credit
for the account of Borrower, in each case in form and substance satisfactory to
Silicon in its sole discretion (collectively, "Letters of Credit"). The
aggregate face amount of all Letters of Credit, FX Forward Contracts and Cash
Management Services from time to time outstanding shall not exceed the amount
shown on the Schedule (the "Letter of Credit/FX/Cash Management Sublimit"), and
shall be reserved against Loans which would otherwise be available hereunder,
and in the event at any time there are insufficient Loans available to Borrower
for such reserve, Borrower shall deposit and maintain with Silicon cash
collateral in an amount at all times equal to such deficiency, which shall be
held as Collateral for all purposes of this Agreement, provided that such cash
collateral shall be released by Silicon when sufficient availability otherwise
exists and further provided that at such time no Event of Default has occurred
and is continuing. Borrower shall pay all bank charges (including charges of
Silicon) for the issuance of Letters of Credit, together with such additional
fee as Silicon's letter of credit department shall charge in connection with the
issuance of the Letters of Credit. Any payment by Silicon under or in connection
with a Letter of Credit shall constitute a Loan hereunder on the date such
payment is made. Each Letter of Credit shall have an expiry date no later than
thirty (30) days prior to the Maturity Date. Borrower hereby agrees to indemnify
and hold Silicon harmless from any loss, cost, expense, or liability, including
payments made by Silicon, expenses, and reasonable attorneys' fees incurred by
Silicon arising out of or in connection with any Letters of Credit. Borrower
agrees to be bound by the regulations and interpretations of the issuer of any
Letters of Credit guaranteed by Silicon and opened for Borrower's account or by
Silicon's interpretations of any Letter of Credit issued by Silicon for
Borrower's account, and Borrower understands and agrees that Silicon shall not
be liable for any error, negligence, or mistake, whether of omission or
commission, in following Borrower's instructions or those contained in the
Letters of Credit or any modifications, amendments, or supplements thereto.
Borrower understands that Letters of Credit may require Silicon to indemnify the
issuing bank for certain costs or liabilities arising out of claims by Borrower
against such issuing bank. Borrower hereby agrees to indemnify and hold Silicon
harmless with respect to any loss, cost, expense, or liability incurred by
Silicon under any Letter of Credit as a result of Silicon's indemnification of
any such issuing bank. The provisions of this Loan Agreement, as it pertains to
Letters of Credit, and any other Loan Documents relating to Letters of Credit
are cumulative,
1.7 FOREIGN EXCHANGE As part of the Loans, Borrower may enter in foreign
exchange forward contracts with Silicon under which Borrower commits to purchase
from or sell to Silicon a set amount of foreign currency more than one (1)
Business Day after the contract date (the "FX Forward Contract"). The aggregate
face amount of all Letters of Credit, FX Forward Contracts and FX Reserve and
Cash Management Services from time to time outstanding shall not exceed the
Letter of Credit/FX/Cash Management Sublimit, and shall be reserved against
Loans which would otherwise be available hereunder, and in the event at any time
there are insufficient Loans available to Borrower for such reserve, Borrower
shall deposit and maintain with Silicon cash collateral in an amount at all
times equal
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
to such deficiency, which shall be held as Collateral for all purposes of this
Agreement. Silicon will subtract ten percent (10%) of each outstanding FX
Forward Contract (the "FX Reserve") from the Foreign Exchange Sublimit. The
total FX Forward Contracts at any one time may not exceed ten (10) times the
amount of the FX Reserve. Silicon may terminate the FX Forward Contracts if a
Default or an Event of Default occurs and is continuing.
1.8 CASH MANAGEMENT/ACH SERVICES. As part of the Loans, Borrower may use
request cash management services, which may include merchant services, direct
deposit of payroll, business credit card, and check cashing services identified
in various cash management services agreements related to such services (the
"Cash Management Services"). Any amounts Silicon pays on behalf of Borrower or
any amounts that are not paid by Borrower for any Cash Management Services will
be treated as Loans and will accrue interest in accordance with the Schedule.
2. SECURITY INTEREST. To secure the payment and performance of all of
the Obligations when due, Borrower hereby grants to Silicon a security interest
in all of the following (collectively, the "Collateral"): all right, title and
interest of Borrower in and to all of the following, whether now owned or
hereafter arising or acquired and wherever located: all Accounts; all Inventory;
all Equipment; all Deposit Accounts; all Instruments; all Chattel Paper and
Documents; all General Intangibles (including without limitation all
intellectual property other than Excluded Intellectual Property); all Investment
Property; all other property; and any and all claims, rights and interests in
any of the above, and all guaranties and security for any of the above, and all
substitutions and replacements for, additions, accessions, attachments,
accessories, and improvements to, and proceeds (including proceeds of any
insurance policies, proceeds of proceeds and claims against third parties) of,
any and all of the above, and all Borrower's books relating to any and all of
the above. The Collateral shall include the proceeds of all Excluded
Intellectual Property to which any Borrower is entitled that are Accounts of any
Borrowers, or general intangibles consisting of rights to payment, if a judicial
authority (including a U.S. bankruptcy court) holds that a security interest in
the underlying Excluded Intellectual Property is necessary to have a security
interest in such Accounts and General Intangibles of any Borrower that are
proceeds of the Excluded Intellectual Property to which any Borrower is
entitled, then the Collateral shall automatically, and effective as of the
Closing Date, include the Excluded Intellectual Property to the extent necessary
to permit perfection of Silicon's security interest in such Accounts and General
Intangibles of any Borrower that are proceeds of the Excluded Intellectual
Property to which any Borrower is entitled.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER.
In order to induce Silicon to enter into this Agreement and to make Loans,
Borrower represents and warrants to Silicon as follows, and Borrower covenants
that the following representations will continue to be true, and that Borrower
will at all times comply with all of the following covenants, throughout the
term of this Agreement and until all Obligations have been paid and performed in
full:
3.1 CORPORATE EXISTENCE AND AUTHORITY. Borrower is and will continue to be,
duly organized, validly existing and in good standing under the laws of the
State of Delaware Borrower is and will continue to be qualified and licensed to
do business in all jurisdictions in which any failure to do so would result in a
Material Adverse Change. The execution, delivery and performance by Borrower of
this Agreement, and all other documents contemplated hereby: (i) have been duly
and validly authorized; (ii) are enforceable against Borrower in accordance with
their terms (except as enforcement may be limited by equitable principles and by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
creditors' rights generally); (iii) do not violate Borrower's articles or
certificate of incorporation, or
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Borrower's by-laws, or any law or any material agreement or instrument which is
binding upon Borrower or its property; and (iv) do not constitute grounds for
acceleration of any material indebtedness or obligation under any agreement or
instrument which is binding upon Borrower or its property.
3.2 NAME; TRADE NAMES AND STYLES. The name of Borrower set forth in the
heading to this Agreement is its correct name. Listed in the Representations are
all prior names of Borrower and all of Borrower's present and prior trade names.
Borrower shall give Silicon thirty (30) days' prior written notice before
changing its name or doing business under any other name. Borrower has complied,
and will in the future comply, in all material respects, with all laws relating
to the conduct of business under a fictitious business name, except where the
failure to so comply would not reasonably be expected to result in a Material
Adverse Change.
3.3 PLACE OF BUSINESS; LOCATION OF COLLATERAL. The address set forth in the
heading to this Agreement is Borrower's chief executive office as of the date
hereof. Borrower's chief executive office beginning on or about April 1, 2004
will be 000 Xxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000. In addition,
Borrower has places of business and Collateral is located only at the locations
set forth in the Representations. Borrower will give Silicon at least thirty
(30) days prior written notice before opening any additional place of business,
changing its chief executive office, or moving any of the Collateral to a
location other than Borrower's Address or one of the locations set forth in the
Representations, except that Borrower may maintain sales offices in the ordinary
course of business at which not more than a total of $10,000 fair market value
of Equipment is located.
3.4 TITLE TO COLLATERAL; PERFECTION; PERMITTED LIENS.
(a) Borrower is now, and will at all times in the future be, the sole
owner of all the Collateral, as it exists from time to time, except for items of
Equipment which are leased to Borrower. The Collateral now is and will remain
free and clear of any and all liens, charges, security interests, encumbrances
and adverse claims, except for Permitted Liens. Silicon now has, and will
continue to have, a first-priority perfected and enforceable security interest
in all of the Collateral, subject only to the Permitted Liens, and Borrower will
at all times defend Silicon and the Collateral against all claims of others.
(b) Borrower has set forth in the Representations all of Borrower's
Deposit Accounts, and Borrower will give Silicon five (5) Business Days advance
written notice before establishing any new Deposit Accounts and will cause the
institution where any such new Deposit Account is maintained to execute and
deliver to Silicon a control agreement in form sufficient to perfect Silicon's
security interest in the Deposit Account and otherwise satisfactory to Silicon
in its good faith business judgment. Nothing herein limits any requirements
which may be set forth in the Schedule as to where Deposit Accounts will be
maintained.
(c) In the event that Borrower shall at any time after the date hereof
have any commercial tort claims against others, which it is asserting or intends
to assert, and in which the potential recovery exceeds $100,000, Borrower shall
promptly notify Silicon thereof in writing and provide Silicon with such
information regarding the same as Silicon shall request (unless providing such
information would waive the Borrower's attorney-client privilege). Such
notification to Silicon shall constitute a grant of a security interest in the
commercial tort claim and all proceeds thereof to Silicon, and Borrower shall
execute and deliver all such documents and take all such actions as Silicon
shall request in connection therewith.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
(d) None of the Collateral now is or will be affixed to any real property
in such a manner, or with such intent, as to become a fixture. Borrower is not
and will not become a lessee under any real property lease pursuant to which the
lessor may obtain any rights in any of the Collateral and no such lease now
prohibits, restrains, impairs or will prohibit, restrain or impair Borrower's
right to remove any Collateral from the leased premises. Whenever any Collateral
is located upon premises in which any third party has an interest, Borrower
shall, whenever requested by Silicon, use commercially reasonable efforts to
cause such third party to execute and deliver to Silicon, in form acceptable to
Silicon, such waivers and subordinations as Silicon shall specify in its good
faith business judgment. Borrower will comply with all material terms of any
lease of real property where any of the Collateral now or in the future may be
located.
3.5 MAINTENANCE OF COLLATERAL. Borrower will maintain the Collateral in good
working condition (ordinary wear and tear excepted), and Borrower will not use
the Collateral for any unlawful purpose. Borrower will as soon as practicable
advise Silicon in writing of any material loss or damage to the Collateral.
3.6 BOOKS AND RECORDS. Borrower has maintained and will maintain at
Borrower's Address complete and accurate books and records, comprising an
accounting system in accordance with GAAP.
3.7 FINANCIAL CONDITION, STATEMENTS AND REPORTS. All financial statements
now or in the future delivered to Silicon have been and will be prepared in
conformity with GAAP and now and in the future will fairly present the results
of operations and financial condition of Borrower, in accordance with GAAP, at
the times and for the periods therein stated, subject to customary year-end
audit adjustments. Between the last date covered by any such statement provided
to Silicon and the date hereof, there has been no Material Adverse Change.
3.8 TAX RETURNS AND PAYMENTS; PENSION CONTRIBUTIONS. Borrower has timely
filed, and will timely file, all required tax returns and reports, and Borrower
has timely paid, and will timely pay, all foreign, federal, state and local
taxes, assessments, deposits and contributions now or in the future owed by
Borrower. Borrower may, however, defer payment of any contested taxes, provided
that Borrower: (i) in good faith contests Borrower's obligation to pay the taxes
by appropriate proceedings promptly and diligently instituted and conducted,
(ii) notifies Silicon in writing of the commencement of and any material
development in the proceedings, and (iii) posts bonds or takes any other steps
required to keep the contested taxes from becoming a lien upon any of the
Collateral. Borrower is unaware of any claims or adjustments proposed for any of
Borrower's prior tax years which could result in additional taxes becoming due
and payable by Borrower. Borrower has paid, and shall continue to pay all
amounts necessary to fund all present and future pension, profit sharing and
deferred compensation plans in accordance with their terms, and Borrower has not
and will not withdraw from participation in, permit partial or complete
termination of, or permit the occurrence of any other event with respect to, any
such plan which could reasonably be expected to result in any liability of
Borrower, including any liability to the Pension Benefit Guaranty Corporation or
its successors or any other governmental agency.
3.9 COMPLIANCE WITH LAW. Borrower has, to the best of its knowledge,
complied, and will comply, in all material respects, with all provisions of all
foreign, federal, state and local laws and regulations applicable to Borrower,
including, but not limited to, those relating to Borrower's ownership of real or
personal property, the conduct and licensing of Borrower's business, and all
environmental matters.
3.10 LITIGATION. There is no claim, suit, litigation, proceeding or
investigation pending or (to best of Borrower's knowledge) threatened against or
affecting Borrower in any court or before any governmental agency (or any basis
therefor known to Borrower) which could reasonably be expected to
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
result, either separately or in the aggregate, in any Material Adverse Change.
Borrower will promptly inform Silicon in writing of any claim, proceeding,
litigation or investigation in the future threatened or instituted against
Borrower involving any single claim of $50,000 or more, or involving $100,000 or
more in the aggregate.
3.11 USE OF PROCEEDS. All proceeds of all Loans shall be used solely for
lawful business purposes. Borrower is not purchasing or carrying any "margin
stock" (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) and no part of the proceeds of any Loan will be used to purchase
or carry any "margin stock" or to extend credit to others for the purpose of
purchasing or carrying any "margin stock."
3.12 ISSUANCE OF WARRANT. Borrower shall use commercially reasonable
efforts to issue to Silicon a warrant to purchase 5,000 shares of the Company's
Series C Convertible Preferred Stock at a price of $12.50 per share, pursuant to
a Warrant to Purchase Stock in substantially the form of Exhibit D attached
hereto (the "Warrant") on or before December 31, 2003 and to obtain all consents
and shareholder agreements necessary for the issuance of the Warrant in form and
content acceptable to Silicon in its reasonable discretion. Borrower and Silicon
agree that in the event the Warrant is not issued to Silicon on or before
December 31, 2003, Silicon shall be immediately entitled to a non-refundable
fee in the amount of $30,000 (the "Warrant Fee"). The Warrant Fee is due and
payable on December 31, 2003 if the Warrant has not been issued, whether or not,
this Agreement has been terminated as of December 31,2003.
4. ACCOUNTS.
4.1 REPRESENTATIONS RELATING TO ACCOUNTS. Borrower represents and warrants
to Silicon as follows: Each Account with respect to which Loans are requested by
Borrower shall, on the date each Loan is requested and made: (i) represent an
undisputed bona fide existing unconditional obligation of the Account Debtor
created by the sale, delivery, and acceptance of goods or the rendition of
services, or the non-exclusive licensing of Intellectual Property, in the
ordinary course of Borrower's business, and (ii) meet the Minimum Eligibility
Requirements set forth in Section 8 below.
4.2 REPRESENTATIONS RELATING TO DOCUMENTS AND LEGAL COMPLIANCE. Borrower
represents and warrants to Silicon as follows: All statements made and all
unpaid balances appearing in all invoices, instruments and other documents
evidencing the Accounts are and shall be true and correct in all material
respects and all such invoices, instruments and other documents and all of
Borrower's books and records are and shall be genuine and in all respects what
they purport to be. All sales and other transactions underlying or giving rise
to each Account shall comply in all material respects with all applicable laws
and governmental rules and regulations. To the best of Borrower's knowledge, all
signatures and endorsements on all documents, instruments, and agreements
relating to all Accounts are and shall be genuine, and all such documents,
instruments and agreements are and shall be legally enforceable in accordance
with their terms.
4.3 SCHEDULES AND DOCUMENTS RELATING TO ACCOUNTS. Borrower shall deliver to
Silicon transaction reports and schedules of collections, as provided in the
Schedule, on Silicon's standard forms; provided, however, that Borrower's
failure to execute and deliver the same shall not affect or limit Silicon's
security interest and other rights in all of Borrower's Accounts, nor shall
Silicon's failure to advance or lend against a specific Account affect or limit
Silicon's security interest and other rights therein. If requested by Silicon,
Borrower shall furnish Silicon with copies (or, at Silicon's request, originals)
of all contracts, orders, invoices, and other similar documents, and all
shipping instructions, delivery receipts, bills of lading, and other evidence of
delivery, for any goods the sale or disposition of which gave rise to
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
such Accounts, and Borrower warrants the genuineness of all of the foregoing.
Borrower shall also furnish to Silicon an aged accounts receivable trial balance
as provided in the Schedule. In addition, Borrower shall deliver to Silicon, on
its request, the originals of all instruments, chattel paper, security
agreements, guarantees and other documents and property evidencing or securing
any Accounts, in the same form as received, with all necessary indorsements, and
copies of all credit memos.
4.4 COLLECTION OF ACCOUNTS. Borrower shall have the right to collect all
Accounts, unless and until a Default or an Event of Default has occurred and is
continuing. Whether or not an Event of Default has occurred and is continuing,
Borrower shall hold all payments on and proceeds of Accounts in trust for
Silicon, and Borrower shall immediately deliver all such payments and proceeds
to Silicon in their original form, duly endorsed, to be applied to the
Obligations. If an Event of Default has occurred and is continuing, such amounts
may be applied in such order as Silicon shall determine, otherwise such amounts
shall be applied first to principal, then to interest and then to any fees.
Silicon may, in its good faith business judgment, require that all proceeds of
Collateral be deposited by Borrower into a lockbox account, or such other
"blocked account" as Silicon may specify, pursuant to a blocked account
agreement in such form as Silicon may specify in its good faith business
judgment.
4.5. REMITTANCE OF PROCEEDS. Except as otherwise provided in Section 5.2
hereof, all proceeds arising from the disposition of any Collateral shall be
delivered, in kind, by Borrower to Silicon in the original form in which
received by Borrower not later than the following Business Day after receipt by
Borrower, to be applied to the Obligations in such order as Silicon shall
determine; provided that, if no Default or Event of Default has occurred and is
continuing, Borrower shall not be obligated to remit to Silicon the proceeds of
the sale of worn out or obsolete Equipment disposed of by Borrower in good faith
in an arm's length transaction for an aggregate purchase price of $25,000 or
less (for all such transactions in any fiscal year). Borrower agrees that it
will not commingle proceeds of Collateral with any of Borrower's other funds or
property, but will hold such proceeds separate and apart from such other funds
and property and in an express trust for Silicon. Nothing in this Section limits
the restrictions on disposition of Collateral set forth elsewhere in this
Agreement.
4.6 DISPUTES. Borrower shall notify Silicon promptly of all disputes or
claims relating to Accounts. Borrower shall not forgive (completely or
partially), compromise or settle any Account for less than payment in full, or
agree to do any of the foregoing, except that Borrower may do so provided that:
(i) Borrower does so in good faith, in a commercially reasonable manner, in the
ordinary course of business, and in arm's length transactions, which are
reported to Silicon on the regular reports provided to Silicon; (ii) no Default
or Event of Default has occurred and is continuing; and (iii) taking into
account all such discounts, settlements and forgiveness, the total outstanding
Loans will not exceed the Credit Limit.
4.7 RETURNS. Provided no Event of Default has occurred and is continuing,
if any Account Debtor returns any Inventory to Borrower, Borrower shall promptly
determine the reason for such return and promptly issue a credit memorandum to
the Account Debtor in the appropriate amount. In the event any attempted return
occurs after the occurrence and during the continuance of any Event of Default,
Borrower shall hold the returned Inventory in trust for Silicon, and immediately
notify Silicon of the return of the Inventory.
4.8 VERIFICATION. Silicon may, from time to time, verify directly with the
respective Account Debtors the validity, amount and other matters relating to
the Accounts, by means of mail, telephone or otherwise, either in the name of
Borrower or Silicon or such other name as Silicon may choose.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
4.9 NO LIABILITY. Silicon shall not be responsible or liable for any
shortage or discrepancy in, damage to, or loss or destruction of, any goods, the
sale or other disposition of which gives rise to an Account, or for any error,
act, omission, or delay of any kind occurring in the settlement, failure to
settle, collection or failure to collect any Account, or for settling any
Account in good faith for less than the full amount thereof, nor shall Silicon
be deemed to be responsible for any of Borrower's obligations under any contract
or agreement giving rise to an Account. Nothing herein shall, however, relieve
Silicon from liability for its own gross negligence or willful misconduct.
5. ADDITIONAL DUTIES OF BORROWER.
5.1 FINANCIAL AND OTHER COVENANTS. Borrower shall at all times comply with
the financial and other covenants set forth in the Schedule.
5.2 INSURANCE. Borrower shall at all times insure all of the tangible
personal property Collateral and carry such other business insurance, with
insurers reasonably acceptable to Silicon, in such form and amounts as Silicon
may reasonably require and that are customary and in accordance with standard
practices for Borrower's industry and locations, and Borrower shall provide
evidence of such insurance to Silicon. All such insurance policies shall name
Silicon as an additional loss payee, and shall contain a lenders loss payee
endorsement in form reasonably acceptable to Silicon. Upon receipt of the
proceeds of any such insurance, Silicon shall apply such proceeds in reduction
of the Obligations as Silicon shall determine in its good faith business
judgment, except that, provided no Default or Event of Default has occurred and
is continuing, Silicon shall release to Borrower insurance proceeds with respect
to Equipment totaling less than $100,000, which shall be utilized by Borrower
for the replacement of the Equipment with respect to which the insurance
proceeds were paid. Silicon may require reasonable assurance that the insurance
proceeds so released will be so used. If Borrower fails to provide or pay for
any insurance, Silicon may, but is not obligated to, obtain the same at
Borrower's expense. Borrower shall promptly deliver to Silicon copies of all
material reports made to insurance companies.
5.3 REPORTS. Borrower, at its expense, shall provide Silicon with the
written reports set forth in the Schedule, and such other written reports with
respect to Borrower (including budgets, sales projections, operating plans and
other financial documentation), as Silicon shall from time to time specify in
its good faith business judgment.
5.4 ACCESS TO COLLATERAL, BOOKS AND RECORDS. At reasonable times, and on
three (3) Business Day's notice, Silicon, or its agents, shall have the right to
inspect the Collateral, and the right to audit and copy Borrower's books and
records. Silicon shall take reasonable steps to keep confidential all
information obtained in any such inspection or audit, but Silicon shall have the
right to disclose any such information to its auditors, regulatory agencies, and
attorneys, and pursuant to any subpoena or other legal process. The foregoing
inspections and audits shall be at Borrower's expense and the charge therefor
shall be $750 per person per day (or such higher amount as shall represent
Silicon's then current standard charge for the same), plus reasonable out of
pocket expenses. Prior to the occurrence and continuance of an Event of Default,
Silicon will conduct no more than three (3) such inspections and/or audits in
any twelve (12) month period and the cost of any such inspection and/or audit
will not exceed the amount Silicon customarily charges for inspections or
audits.
5.5 NEGATIVE COVENANTS. Except as may be permitted in the Schedule,
Borrower shall not, without Silicon's prior written consent (which shall be a
matter of its good faith business judgment), do any of the following: (i) merge
or consolidate with another corporation or entity; (ii) acquire any assets,
except in the ordinary course of business; (iii) enter into any other material
transaction outside the ordinary course of business; (iv) sell or transfer any
Collateral, except for the sale of finished Inventory in the
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ordinary course of Borrower's business, and except for the sale of obsolete or
unneeded Equipment in the ordinary course of business; (v) store any Inventory
or other Collateral with any warehouseman or other third party; (vi) sell any
Inventory on a sale-or-return, guaranteed sale, consignment, or other
contingent basis; (vii) make any loans of any money or other assets; (viii)
incur any debts, outside the ordinary course of business, which would result in
a Material Adverse Change; (ix) guarantee or otherwise become liable with
respect to the obligations of another party or entity; (x) pay or declare any
dividends on Borrower's stock (except for dividends payable solely in stock of
Borrower); (xi) redeem, retire, purchase or otherwise acquire, directly or
indirectly, any of Borrower's stock; (xii) make any change in Borrower's capital
structure which would result in a Material Adverse Change; or (xiii) engage,
directly or indirectly, in any business other than the businesses currently
engaged in by Borrower or reasonably related thereto; or (xiv) dissolve or elect
to dissolve. Transactions permitted by the foregoing provisions of this Section
are only permitted if no Default or Event of Default would occur as a result of
such transaction.
5.6 LITIGATION COOPERATION. Should any third-party suit or proceeding be
instituted by or against Silicon with respect to any Collateral or relating to
Borrower, Borrower shall, without expense to Silicon, make available Borrower
and its officers, employees and agents and Borrower's books and records, to the
extent that Silicon may deem them reasonably necessary in order to prosecute or
defend any such suit or proceeding.
5.7 FURTHER ASSURANCES. Borrower agrees, at its expense, on request by
Silicon, to execute all documents and take all actions, as Silicon, may, in its
good faith business judgment, deem necessary or useful in order to perfect and
maintain Silicon's perfected first-priority security interest in the Collateral
(subject to Permitted Liens), and in order to fully consummate the transactions
contemplated by this Agreement.
6. TERM.
6.1 MATURITY DATE. This Agreement shall continue in effect until the
maturity date set forth on the Schedule (the "Maturity Date"), subject to
Section 6.3 below.
6.2 EARLY TERMINATION. This Agreement may be terminated prior to the
Maturity Date as follows: (i) by Borrower, effective three (3) Business Days
after written notice of termination is given to Silicon; or (ii) by Silicon at
any time after the occurrence and during the continuance of an Event of Default,
without notice, effective immediately. If this Agreement is terminated by
Borrower or by Silicon under this Section 6.2, Borrower shall pay to Silicon a
termination fee in an amount equal to one percent (1.0%) of the Maximum Credit
Limit, provided that no termination fee shall be charged if (i) the credit
facility hereunder is replaced with a new facility from another division of
Silicon Valley Bank, or (ii) such prepayment is made from the proceeds of an
initial public offering which raises not less than $20,000,000. The termination
fee shall be due and payable on the effective date of termination and thereafter
shall bear interest at a rate equal to the highest rate applicable to any of the
Obligations.
6.3 PAYMENT OF OBLIGATIONS. On the Maturity Date or on any earlier
effective date of termination, Borrower shall pay and perform in full all
Obligations, whether evidenced by installment notes or otherwise, and whether or
not all or any part of such Obligations are otherwise then due and payable.
Without limiting the generality of the foregoing, if on the Maturity Date, or on
any earlier effective date of termination, there are any outstanding Letters of
Credit issued by Silicon or issued by another institution based upon an
application, guarantee, indemnity or similar agreement on the part of Silicon,
then on such date Borrower shall provide to Silicon cash collateral in an amount
equal to one hundred five percent (105%) of the face amount of all such Letters
of Credit plus all interest, fees and cost due or
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
to become due in connection therewith (as estimated by Silicon in its good faith
business judgment), to secure all of the Obligations relating to said Letters of
Credit, pursuant to Silicon's then standard form cash pledge agreement.
Notwithstanding any termination of this Agreement, all of Silicon's security
interests in all of the Collateral and all of the terms and provisions of this
Agreement shall continue in full force and effect until all Obligations have
been paid and performed in full; provided that Silicon may in its sole
discretion refuse to make any further Loans after termination. No termination
shall in any way affect or impair any right or remedy of Silicon, nor shall any
such termination relieve Borrower of any Obligation to Silicon, until all of the
Obligations have been paid and performed in full. Upon payment and performance
in full of all the Obligations and termination of this Agreement, Silicon shall
promptly terminate its financing statements with respect to the Borrower and
deliver to Borrower such other documents as may be required to fully terminate
Silicon's security interests.
7. EVENTS OF DEFAULT AND REMEDIES.
7.1 EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute an "Event of Default" under this Agreement, and Borrower shall give
Silicon immediate written notice thereof; (a) Any warranty, representation,
statement, report or certificate made or delivered to Silicon by Borrower or any
of Borrower's officers, employees or agents, now or in the future, shall be
untrue or misleading in a material respect when made or deemed to be made; or
(b) Borrower shall fail to pay when due any Loan or any interest thereon or any
other monetary Obligation; or (c) the total Loans and other Obligations
outstanding at any time shall exceed the Credit Limit; or (d) Borrower shall
fail to comply with any of the financial covenants set forth in this Agreement
(including, without limitation, the payment of the Warrant Fee if required to be
made pursuant to the terms hereof) or the Schedule, or shall fail to perform any
other non-monetary Obligation which by its nature cannot be cured, or shall fail
to permit Silicon to conduct an inspection or audit as specified in Section 5.4
hereof; or (e) Borrower shall fail to perform any other non-monetary Obligation,
which failure is not cured within ten (10) Business Days after the earlier of
the date Silicon notifies Borrower of such failure or Borrower otherwise has
actual knowledge thereof; or (f) any levy, assessment, attachment, seizure, lien
or encumbrance (other than a Permitted Lien) is made on all or any material
part of the Collateral which is not cured within ten (10) days after the
occurrence of the same; or (g) any default or event of default occurs under any
obligation secured by a Permitted Lien, which is not cured within any applicable
cure period or waived in writing by the holder of the Permitted Lien; or (h)
Borrower breaches any material contract or obligation, which has resulted or may
reasonably be expected to result in a Material Adverse Change; or (i)
dissolution, termination of existence, insolvency or business failure of
Borrower; or appointment of a receiver, trustee or custodian, for all or any
part of the property of, assignment for the benefit of creditors by, or the
commencement of any proceeding by Borrower under any reorganization, bankruptcy,
insolvency, arrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction, now or in the future in effect; or (j) the
commencement of any proceeding against Borrower or any guarantor of any of the
Obligations under any reorganization, bankruptcy, insolvency, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, now or in the future in effect, which is not cured by the
dismissal thereof within thirty (30) days after the date commenced; or (k)
revocation or termination of, or limitation or denial of liability upon, any
guaranty of the Obligations or any attempt to do any of the foregoing, or
commencement of proceedings by any guarantor of any of the Obligations under any
bankruptcy or insolvency law; or (l) revocation or termination of, or limitation
or denial of liability upon, any pledge of any certificate of deposit,
securities or other property or asset of any kind pledged by any third party to
secure any or all of the Obligations, or any attempt to do any of the foregoing,
or commencement of proceedings by or against any such third party under any
bankruptcy or insolvency law; or (m) Borrower makes any payment on
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
account of any indebtedness or obligation which has been subordinated to the
Obligations other than as permitted in the applicable subordination agreement,
or if any Person who has subordinated such indebtedness or obligations
terminates or in any way limits his subordination agreement; or (n) there shall
be a change in the record or beneficial ownership of an aggregate of more than
twenty percent (20%) of the outstanding shares of stock of Borrower, in one or
more transactions, compared to the ownership of outstanding shares of stock of
Borrower in effect on the date hereof, without the prior written consent of
Silicon, other than to the extent such change occurs as a result of the
Borrower's initial public offering; or (o) Borrower shall generally not pay its
debts as they become due, or Borrower shall conceal, remove or transfer any part
of its property, with intent to hinder, delay or defraud its creditors, or make
or suffer any transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law; or (p) a Material Adverse
Change shall occur. Silicon may cease making any Loans hereunder during any of
the above cure periods, and thereafter if an Event of Default has occurred and
is continuing.
7.2 REMEDIES. Upon the occurrence and during the continuance of any Event
of Default, and at any time thereafter, Silicon, at its option and without
notice or demand of any kind (all of which are hereby expressly waived by
Borrower), may do any one or more of the following: (a) Cease making Loans or
otherwise extending credit to Borrower under this Agreement or any other Loan
Document; (b) Accelerate and declare all or any part of the Obligations to be
immediately due, payable, and performable, notwithstanding any deferred or
installment payments allowed by any instrument evidencing or relating to any
Obligation; (c) Take possession of any or all of the Collateral wherever it may
be found, and for that purpose Borrower hereby authorizes Silicon without
judicial process to enter onto any of Borrower's premises without interference
to search for, take possession of, keep, store, or remove any of the Collateral,
and remain on the premises or cause a custodian to remain on the premises
in exclusive control thereof, without charge for so long as Silicon deems it
necessary, in its good faith business judgment, in order to complete the
enforcement of its rights under this Agreement or any other agreement; provided,
however, that should Silicon seek to take possession of any of the Collateral by
court process, Borrower hereby irrevocably waives: (i) any bond and any surety
or security relating thereto required by any statute, court rule or otherwise as
an incident to such possession, (ii) any demand for possession prior to the
commencement of any suit or action to recover possession thereof, and (iii)
any requirement that Silicon retain possession of, and not dispose of, any such
Collateral until after trial or final judgment; (d) Require Borrower to assemble
any or all of the Collateral and make it available to Silicon at places
designated by Silicon which are reasonably convenient to Silicon and Borrower,
and to remove the Collateral to such locations as Silicon may deem advisable;
(e) Complete the processing, manufacturing or repair of any Collateral prior to
a disposition thereof and, for such purpose and for the purpose of removal,
Silicon shall have the right to use Borrower's premises, vehicles, hoists,
lifts, cranes, and other Equipment and all other property without charge; (f)
Sell, lease or otherwise dispose of any of the Collateral, in its condition at
the time Silicon obtains possession of it or after further manufacturing,
processing or repair, at one or more public and/or private sales, in lots or in
bulk, for cash, exchange or other property, or on credit, and to adjourn any
such sale from time to time without notice other than oral announcement at the
time scheduled for sale. Silicon shall have the right to conduct such
disposition on Borrower's premises without charge, for such time or times as
Silicon deems reasonable, or on Silicon's premises, or elsewhere and the
Collateral need not be located at the place of disposition. Silicon may directly
or through any affiliated company purchase or lease any Collateral at any such
public disposition, and if permissible under applicable law, at any private
disposition. Any sale or other disposition of Collateral shall not relieve
Borrower of any liability Borrower may have if any Collateral is defective as to
title or physical condition or otherwise at the time
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
of sale; (g) Demand payment of, and collect any Accounts and General Intangibles
comprising Collateral and, in connection therewith, Borrower irrevocably
authorizes Silicon to endorse or sign Borrower's name on all collections,
receipts, instruments and other documents, to take possession of and open mail
addressed to Borrower and remove therefrom payments made with respect to any
item of the Collateral or proceeds thereof, and, in Silicon's good faith
business judgment, to grant extensions of time to pay, compromise claims and
settle Accounts and the like for less than face value; (h) Offset against any
sums in any of Borrower's general, special or other Deposit Accounts with
Silicon against any or all of the Obligations; and (i) Demand and receive
possession of any of Borrower's federal and state income tax returns and the
books and records utilized in the preparation thereof or referring thereto. All
reasonable attorneys' fees, expenses, costs, liabilities and obligations
incurred by Silicon with respect to the foregoing shall be added to and become
part of the Obligations, shall be due on demand, and shall bear interest at a
rate equal to the highest interest rate applicable to any of the Obligations.
Without limiting any of Silicon's rights and remedies, from and after the
occurrence and during the continuance of any Event of Default, the interest rate
applicable to the Obligations shall be increased by an additional four percent
(4%) per annum (the "Default Rate").
7.3 STANDARDS FOR DETERMINING COMMERCIAL REASONABLENESS. Borrower and
Silicon agree that a sale or other disposition (collectively, "sale") of any
Collateral which complies with the following standards will conclusively be
deemed to be commercially reasonable: (i) Notice of the sale is given to
Borrower at least ten (10) days prior to the sale, and, in the case of a public
sale, notice of the sale is published at least five days before the sale in a
newspaper of general circulation in the county where the sale is to be
conducted; (ii) Notice of the sale describes the collateral in general,
non-specific terms; (iii) The sale is conducted at a place designated by
Silicon, with or without the Collateral being present; (iv) The sale commences
at any time between 8:00 a.m. and 6:00 p.m.; (v) Payment of the purchase price
in cash or by cashier's check or wire transfer is required; and (vi) With
respect to any sale of any of the Collateral, Silicon may (but is not obligated
to) direct any prospective purchaser to ascertain directly from Borrower any and
all information concerning the same. Silicon shall be free to employ other
methods of noticing and selling the Collateral, in its discretion, if they are
commercially reasonable.
7.4 POWER OF ATTORNEY. Upon the occurrence and during the continuance of
any Event of Default, without limiting Silicon's other rights and remedies,
Borrower grants to Silicon an irrevocable power of attorney coupled with an
interest, authorizing and permitting Silicon (acting through any of its
employees, attorneys or agents) at any time, at its option, but without
obligation, with or without notice to Borrower, and at Borrower's expense, to do
any or all of the following, in Borrower's name or otherwise, but Silicon agrees
that if it exercises any right hereunder, it will do so in good faith and in a
commercially reasonable manner: (a) Execute on behalf of Borrower any documents
that Silicon may, in its good faith business judgment, deem advisable in order
to perfect and maintain Silicon's security interest in the Collateral, or in
order to exercise a right of Borrower or Silicon, or in order to fully
consummate all the transactions contemplated under this Agreement, and all other
Loan Documents; (b) Execute on behalf of Borrower, any invoices relating to any
Account, any draft against any Account Debtor and any notice to any Account
Debtor, any proof of claim in bankruptcy, any Notice of Lien, claim of
mechanic's, materialman's or other lien, or assignment or satisfaction of
mechanic's, materialman's or other lien; (c) Take control in any manner of any
cash or non-cash items of payment or proceeds of Collateral; endorse the name of
Borrower upon any instruments, or documents, evidence of payment or Collateral
that may come into Silicon's possession; (d) Endorse all checks and other forms
of remittances received by Silicon; (e) Pay, contest or settle any lien, charge,
encumbrance, security interest and adverse claim in or to any of the Collateral,
or any judgment based thereon, or otherwise take any action to terminate or
discharge the same; (f) Grant extensions of time to pay, compromise
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
claims and settle Accounts and General Intangibles for less than face value and
execute all releases and other documents in connection therewith; (g) Pay any
sums required on account of Borrower's taxes or to secure the release of any
liens therefor, or both; (h) Settle and adjust, and give releases of, any
insurance claim that relates to any of the Collateral and obtain payment
therefor; (i) Instruct any third party having custody or control of any books or
records belonging to, or relating to, Borrower to give Silicon the same rights
of access and other rights with respect thereto as Silicon has under this
Agreement; and (j) Take any action or pay any sum required of Borrower pursuant
to this Agreement and any other Loan Documents. Any and all reasonable sums paid
and any and all reasonable costs, expenses, liabilities, obligations and
attorneys' fees incurred by Silicon with respect to the foregoing shall be added
to and become part of the Obligations, shall be payable on demand, and shall
bear interest at a rate equal to the highest interest rate applicable to any of
the Obligations. In no event shall Silicon's rights under the foregoing power of
attorney or any of Silicon's other rights under this Agreement be deemed to
indicate that Silicon is in control of the business, management or properties of
Borrower.
7.5 APPLICATION OF PROCEEDS. All proceeds realized as the result of any
sale of the Collateral shall be applied by Silicon first to the reasonable
costs, expenses, liabilities, obligations and attorneys' fees incurred by
Silicon in the exercise of its rights under this Agreement, second to the
interest due upon any of the Obligations, and third to the principal of the
Obligations, in such order as Silicon shall determine in its sole discretion.
Any surplus shall be paid to Borrower or other persons legally entitled thereto;
Borrower shall remain liable to Silicon for any deficiency. If, Silicon, in its
good faith business judgment, directly or indirectly enters into a deferred
payment or other credit transaction with any purchaser at any sale of
Collateral, Silicon shall have the option, exercisable at any time, in its good
faith business judgment, of either reducing the Obligations by the principal
amount of purchase price or deferring the reduction of the Obligations until the
actual receipt by Silicon of the cash therefor.
7.6 REMEDIES CUMULATIVE. In addition to the rights and remedies set forth
in this Agreement, Silicon shall have all the other rights and remedies accorded
a secured party under the Pennsylvania Uniform Commercial Code and under all
other applicable laws, and under any other instrument or agreement now or in the
future entered into between Silicon and Borrower, and all of such rights and
remedies are cumulative and none is exclusive. Exercise or partial exercise by
Silicon of one or more of its rights or remedies shall not be deemed an
election, nor bar Silicon from subsequent exercise or partial exercise of any
other rights or remedies. The failure or delay of Silicon to exercise any rights
or remedies shall not operate as a waiver thereof, but all rights and remedies
shall continue in full force and effect until all of the Obligations have been
fully paid and performed.
8. DEFINITIONS. As used in this agreement, the following terms have the
following meanings:
"Account Debtor" means the obligor on an Account.
"Accounts" means all present and future "accounts" as defined in the Code
in effect on the date hereof with such changes to such term as may hereafter be
made, and includes without limitation all accounts receivable and other sums
owing to Borrower.
"Affiliate" means, with respect to any Person, a relative, partner,
shareholder, director, officer, or employee of such Person, or any parent or
subsidiary of such Person, or any Person controlling, controlled by or under
common control with such Person.
"Business Day" means a day on which Silicon is open for business.
"Code" means the Uniform Commercial Code as adopted and in effect in the
Commonwealth of Pennsylvania from time to time.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
"Collateral" has the meaning set forth in Section 2 above.
"continuing" and "during the continuance of" when used with reference to a
Default or Event of Default means that the Default or Event of Default has
occurred and has not been either waived in writing by Silicon or cured within
any applicable cure period.
"Default" means any event which with notice or passage of time or both,
would constitute an Event of Default.
"Default Rate" has the meaning set forth in Section 7.2 above.
"Deposit Accounts" means all present and future "deposit accounts" as
defined in the Code in effect on the date hereof with such additions to such
term as may hereafter be made, and includes without limitation all general and
special bank accounts, demand accounts, checking accounts, savings accounts and
certificates of deposit.
"Eligible Accounts" means Accounts and General Intangibles arising in the
ordinary course of Borrower's business from the sale of goods or the rendition
of services, or the non-exclusive licensing of Intellectual Property, which
Silicon, in its good faith business judgment, shall deem eligible for borrowing.
Without limiting the fact that the determination of which Accounts are eligible
for borrowing is a matter of Silicon's good faith business judgment, the
following (the "Minimum Eligibility Requirements") are the minimum requirements
for a Account to be an Eligible Account: (i) the Account must not be outstanding
for more than one hundred twenty (120) days from its invoice date (the
"Eligibility Period"); (ii) the Account must not represent progress xxxxxxxx, or
be due under a fulfillment or requirements contract with the Account Debtor;
(iii) the Account must not be subject to any contingencies (including Accounts
arising from sales on consignment, guaranteed sale or other terms pursuant to
which payment by the Account Debtor may be conditional); (iv) the Account must
not be owing from an Account Debtor with whom Borrower has any dispute outside
of the ordinary course of business or which would otherwise have a material
adverse effect on Borrower (whether or not relating to the particular Account);
(v) the Account must not be owing from an Affiliate of Borrower; (vi) the
Account must not be owing from an Account Debtor which is the subject of any
insolvency or bankruptcy proceeding, or whose financial condition is not
acceptable to Silicon in its reasonable discretion, or which, fails or goes out
of a material portion of its business; (vii) the Account must not be owing from
the United States or any department, agency or instrumentality thereof (unless
there has been compliance, to Silicon's satisfaction, with the United States
Assignment of Claims Act); (viii) the Account must not be owing from an Account
Debtor located outside the United States or Canada (unless pre-approved by
Silicon in its discretion in writing, or backed by a letter of credit
satisfactory to Silicon, or FCIA insured satisfactory to Silicon, it being
agreed that Euler ACI is an acceptable insurer); (x) the Account must not be a
Medicaid or Medicare payment; and (xi) the Account must not be owing from an
Account Debtor to whom Borrower is or may be liable for goods purchased from
such Account Debtor or otherwise (but, in such case, the Account will be deemed
not eligible only to the extent of any amounts owed by Borrower to such Account
Debtor). Accounts owing from one Account Debtor will not be deemed Eligible
Accounts to the extent they exceed twenty-five percent (25%) of the total
Accounts outstanding. In addition, if more than fifty (50%) of the Accounts
owing from an Account Debtor are outstanding for a period longer than their
Eligibility Period (without regard to unapplied credits) or are otherwise not
Eligible Accounts, then all Accounts owing from that Account Debtor will be
deemed ineligible for borrowing. Silicon may, from time to time, in its good
faith business judgment, revise the Minimum Eligibility Requirements, upon prior
written notice to Borrower.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
"Eligible Inventory" means of Borrower's Inventory, which Silicon, in its
good faith business judgment, shall deem eligible for borrowing. Without
limiting the fact that the determination of which Inventory is eligible for
borrowing is a matter of Silicon's good faith business judgment, the following
(the "Minimum Inventory Eligibility Requirements") are the minimum requirements
for any Inventory to be Eligible Inventory: (a) such Inventory is not
manufactured or designed by Borrower; (b) such Inventory is not located outside
of the United States; (c) such Inventory is in the actual possession of
Borrower, (c) such Inventory is not work-in-process, supplies, displays,
packaging and promotional materials; (d) such Inventory is determined by Silicon
in the exercise of its sole and absolute discretion at any time to be in good
condition or is not defective, unmerchantable, post-seasonal, slow moving or
obsolete; and (e) such Inventory is not deemed by Silicon to be ineligible
because Silicon otherwise considers the collateral value to Silicon to be
impaired or its ability to realize such value to be insecure (but only to the
extent of such impairment). Silicon may, from time to time, in its good faith
business judgment, revise the Minimum Inventory Eligibility Requirements, upon
written notice to Borrower.
"Equipment" means all present and future "equipment" as defined in the Code
in effect on the date hereof with such additions to such term as may hereafter
be made, and includes without limitation all machinery, fixtures, goods,
vehicles (including motor vehicles and trailers), and any interest in any of the
foregoing.
"Event of Default" means any of the events set forth in Section 7.1 of this
Agreement.
"Excluded Intellectual Property" means Borrower's Intellectual Property
derived under any joint venture between Borrower and any third part related to
Glucose Sensor or Glucose Monitor technology developed under the National
Institute of Standards and Technology (NIST) Cooperative Agreement, including
without limitation, that certain Joint Venture Agreement by and between Borrower
and Xxxxxxx Corporation dated July 31,2001.
"Existing Equipment Term Loan" means that certain term loan made by Silicon
to the Borrower in the original principal amount of One Million Dollars
($1,000,000), which is governed by that certain Loan and Security Agreement
dated November 4, 2002 by and between the Borrower and Silicon, as amended,
modified or supplemented from time to time.
"GAAP" means generally accepted accounting principles consistently applied.
"General Intangibles" means all present and future "general intangibles" as
defined in the Code in effect on the date hereof with such additions to such
term as may hereafter be made, and includes without limitation all Intellectual
Property, payment intangibles, royalties, contract rights, goodwill, franchise
agreements, purchase orders, customer lists, route lists, telephone numbers,
domain names, claims, income tax refunds, security and other deposits, options
to purchase or sell real or personal property, rights in all litigation
presently or hereafter pending (whether in contract, tort or otherwise),
insurance policies (including without limitation key man, property damage, and
business interruption insurance), payments of insurance and rights to payment of
any kind, but excludes all Excluded Intellectual Property.
"good faith business judgment" means honesty in fact and good faith (as
defined in Section 1201 of the Code) in the exercise of Silicon's business
judgment.
"Including" means including (but not limited to).
"Intellectual Property" means all present and future (a) copyrights,
copyright rights, copyright applications, copyright registrations and like
protections in each work of authorship and derivative work thereof, whether
published or unpublished, (b) trade secret rights, including all rights to
unpatented
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
inventions and know-how, and confidential information; (c) mask work or similar
rights available for the protection of semiconductor chips; (d) patents, patent
applications and like protections including without limitation improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same; (e) trademarks, servicemarks, trade styles,
and trade names, whether or not any of the foregoing are registered, and all
applications to register and registrations of the same and like protections, and
the entire goodwill of the business of Borrower connected with and symbolized by
any such trademarks; (f) computer software and computer software products; (g)
designs and design rights; (h) technology; (i) all claims for damages by way of
past, present and future infringement of any of the rights included above; (j)
all licenses or other rights to use any property or rights of a type described
above, but excludes all Excluded Intellectual Property.
"Inventory." means all present and future "inventory" as defined in the
Code in effect on the date hereof with such additions to such term as may
hereafter be made, and includes without limitation all merchandise, raw
materials, parts, supplies, packing and shipping materials, work in process and
finished products, including without limitation such inventory as is temporarily
out of Borrower's custody or possession or in transit and including any returned
goods and any documents of title representing any of the above.
"Investment Property" means all present and future investment property,
securities, stocks, bonds, debentures, debt securities, partnership interests,
limited liability company interests, options, security entitlements, securities
accounts, commodity contracts, commodity accounts, and all financial assets held
in any securities account or otherwise, and all options and warrants to purchase
any of the foregoing, wherever located, and all other securities of every kind,
whether certificated or uncertificated.
"Loan Documents" means, collectively, this Agreement, the Representations,
and all other present and future documents, instruments and agreements between
Silicon and Borrower, including, but not limited to those relating to this
Agreement, and all amendments and modifications thereto and replacements
therefor.
"Material Adverse Change" means any of the following: (i) a material
adverse change in the business, operations, or financial or other condition of
the Borrower, or (ii) a material impairment of the prospect of repayment of any
portion of the Obligations, or (iii) a material impairment of the value or
priority of Silicon's security interests in the Collateral.
"Obligations" means, without duplication, all present and future Loans,
advances, debts, liabilities, obligations, guaranties, covenants, duties and
indebtedness at any time owing by Borrower to Silicon, whether evidenced by this
Agreement or any note or other instrument or document, or otherwise, whether
arising from an extension of credit, opening of a letter of credit, banker's
acceptance, loan, guaranty, indemnification or otherwise, whether direct or
indirect (including, without limitation, those acquired by assignment and any
participation by Silicon in Borrower's debts owing to others), absolute or
contingent, due or to become due, including, without limitation, all interest,
charges, expenses, fees, attorney's fees, expert witness fees, audit fees,
letter of credit fees, collateral monitoring fees, closing fees, facility fees,
termination fees, minimum interest charges and any other sums chargeable to
Borrower under this Agreement or under any other Loan Documents.
"Other Property" means the following as defined in the Code in effect on
the date hereof with such additions to such term as may hereafter be made, and
all rights relating thereto: all present and future "commercial tort claims"
(including without limitation any commercial tort claims identified in the
Representations), "documents", "instruments", "promissory notes", "chattel
paper", "letters of credit",
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
"letter-of-credit rights", "fixtures", "farm products" and "money"; and all
other goods and personal property of every kind, tangible and intangible,
whether or not governed by the Code.
"Permitted Liens" means the following: (i) purchase money security
interests in specific items of Equipment and purchase money security interests
in Inventory acquired pursuant to the Manufacturing Agreement dated November 8,
2002 (as amended from time to time) between Borrower and Beyonics International
Limited; (ii) leases of specific items of Equipment; (iii) liens for taxes not
yet payable; (iv) additional security interests and liens consented to in
writing by Silicon, which consent may be withheld in its good faith business
judgment; (v) security interests being terminated substantially concurrently
with this Agreement; (vi) liens of materialmen, mechanics, warehousemen,
carriers, or other similar liens arising in the ordinary course of business and
securing obligations which are not delinquent; (vii) liens incurred in
connection with the extension, renewal or refinancing of the indebtedness
secured by liens of the type described above in clauses (i) or (ii) above,
provided that any extension, renewal or replacement lien is limited to the
property encumbered by the existing lien and the principal amount of the
indebtedness being extended, renewed or refinanced does not increase; and (viii)
liens in favor of customs and revenue authorities which secure payment of
customs duties in connection with the importation of goods. Silicon will have
the right to require, as a condition to its consent under sub-paragraph (iv)
above, that the holder of the additional security interest or lien sign an
intercreditor agreement on Silicon's then standard form, acknowledge that the
security interest is subordinate to the security interest in favor of Silicon,
and agree not to take any action to enforce its subordinate security interest so
long as any Obligations remain outstanding, and that Borrower agree that any
uncured default (after all notice requirements, grace and cure periods) in any
obligation secured by the subordinate security interest shall also constitute an
Event of Default under this Agreement.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, limited liability
company, corporation, government, or any agency or political division thereof,
or any other entity.
"Representations" means the written Representations and Warranties provided
by Borrower to Silicon referred to in the Schedule.
"Reserves" means, as of any date of determination, such amounts as Silicon
may from time to time establish and revise in its good faith business judgment,
reducing the amount of Loans, Letters of Credit and other financial
accommodations which would otherwise be available to Borrower under the lending
formula(s) provided in the Schedule: (a) to reflect events, conditions,
contingencies or risks which, as determined by Silicon in its good faith
business judgment, do or may adversely affect (i) the Collateral or any other
property which is security for the Obligations or its value (including without
limitation any increase in delinquencies of Accounts), (ii) the assets, business
or prospects of Borrower or any guarantor of the Obligations, or (iii) the
security interests and other rights of Silicon in the Collateral (including the
enforceability, perfection and priority thereof); or (b) to reflect Silicon's
good faith belief that any collateral report or financial information furnished
by or on behalf of Borrower or any Guarantor to Silicon is or may have been
incomplete, inaccurate or misleading in any material respect; or (c) in respect
of any state of facts which Silicon determines in good faith constitutes an
Event of Default or may, with notice or passage of time or both, constitute an
Event of Default.
Other Terms. All accounting terms used in this Agreement, unless otherwise
indicated, shall have the meanings given to such terms in accordance with GAAP,
consistently applied. All other terms contained in this Agreement, unless
otherwise indicated, shall have the meanings provided by the Code, to the extent
such terms are defined therein.
-17-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
9. GENERAL PROVISIONS.
9.1 INTEREST COMPUTATION. In computing interest on the Obligations, all
checks and other non-immediately available items of payment received by Silicon
(including proceeds of Accounts and payment of the Obligations in full) shall be
deemed applied by Silicon on account of the Obligations three (3) Business Days
after receipt by Silicon and, for purposes of the foregoing, any such funds
received after 12:00 Noon (Eastern Time) on any day shall be deemed received on
the next Business Day. Silicon shall not, however, be required to credit
Borrower's account for the amount of any item of payment which is unsatisfactory
to Silicon in its good faith business judgment, and Silicon may charge
Borrower's loan account for the amount of any item of payment which is returned
to Silicon unpaid.
9.2 OMITTED.
9.3 CHARGES TO ACCOUNTS. Silicon may, in its discretion, require that
Borrower pay monetary Obligations in cash to Silicon, or charge them to
Borrower's Loan account, in which event they will bear interest at the same rate
applicable to the Loans. Silicon may also, in its discretion, charge any
monetary Obligations to Borrower's Deposit Accounts maintained with Silicon.
9.4 MONTHLY ACCOUNTINGS. Silicon shall provide Borrower monthly with an
account of advances, charges, expenses and payments made pursuant to this
Agreement. Such account shall be deemed correct, accurate and binding on
Borrower and an account stated (except for reverses and reapplications of
payments made and corrections of errors discovered by Silicon), unless Borrower
notifies Silicon in writing to the contrary within sixty (60) days after such
account is rendered, describing the nature of any alleged errors or omissions.
Such accounting shall be subject to customary year-end adjustments.
9.5 NOTICES. All notices shall be deemed to have been given upon delivery
in the case of notices personally delivered, or at the expiration of one (1)
Business Day following delivery to a private delivery service, or two (2)
Business Days following deposit therof in the United States mail, with postage
prepaid. All notices to be given under this Agreement shall be in writing and
shall be given either personally or by reputable private delivery service or by
regular first-class mail, or certified mail return receipt requested, addressed
to Silicon or Borrower at each of the following addresses, or at any other
address designated in writing by one party to the other party;
If to Bank Silicon Valley Bank
Xxx Xxxxxx Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
If to Borrower: Animas Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
After April 1, 2004 000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
9.6 SEVERABILITY. Should any provision of this Agreement be held by any
court of competent jurisdiction to be void or unenforceable, such defect shall
not affect the remainder of this Agreement, which shall continue in full force
and effect.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
9.7 INTEGRATION. This Agreement and such other written agreements,
documents and instruments as may be executed in connection herewith are the
final, entire and complete agreement between Borrower and Silicon and supersede
all prior and contemporaneous negotiations and oral representations and
agreements, all of which are merged and integrated in this Agreement. There are
no oral understandings, representations or agreements between the parties which
are not set forth in this Agreement or in other written agreements signed by the
parties in connection herewith.
9.8 WAIVERS; INDEMNITY. The failure of Silicon at any time or times to
require Borrower to strictly comply with any of the provisions of this Agreement
or any other Loan Document shall not waive or diminish any right of Silicon
later to demand and receive strict compliance therewith. Any waiver of any
default shall not waive or affect any other default, whether prior or
subsequent, and whether or not similar. None of the provisions of this Agreement
or any other Loan Document shall be deemed to have been waived by any act or
knowledge of Silicon or its agents or employees, but only by a specific written
waiver signed by an authorized officer of Silicon and delivered to Borrower.
Borrower waives the benefit of all statutes of limitations relating to any of
the Obligations or this Agreement or any other Loan Document, and Borrower
waives demand, protest, notice of protest and notice of default or dishonor,
notice of payment and nonpayment, release, compromise, settlement, extension or
renewal of any commercial paper, instrument, account, General Intangible,
document or guaranty at any time held by Silicon on which Borrower is or may in
any way be liable, and notice of any action taken by Silicon, unless expressly
required by this Agreement. Borrower hereby agrees to indemnify Silicon and its
affiliates, subsidiaries, parent, directors, officers, employees, agents, and
attorneys, and to hold them harmless from and against any and all claims, debts,
liabilities, demands, obligations, actions, causes of action, penalties, costs
and expenses (including reasonable attorneys' fees), of every kind, which they
may sustain or incur based upon or arising out of any of the Obligations, or any
relationship or agreement between Silicon and Borrower, or any other matter,
relating to Borrower or the Obligations; provided that this indemnity shall not
extend to damages proximately caused by the indemnitee's own gross negligence or
willful misconduct. Notwithstanding any provision in this Agreement to the
contrary, the indemnity agreement set forth in this Section shall survive any
termination of this Agreement and shall for all purposes continue in full force
and effect.
9.9 NO LIABILITY FOR ORDINARY NEGLIGENCE. Neither Silicon, nor any of its
directors, officers, employees, agents, attorneys or any other Person affiliated
with or representing Silicon shall be liable for any claims, demands, losses or
damages, of any kind whatsoever, made, claimed, incurred or suffered by Borrower
or any other party through the ordinary negligence of Silicon, or any of its
directors, officers, employees, agents, attorneys or any other Person affiliated
with or representing Silicon, but nothing herein shall relieve Silicon from
liability for its own gross negligence or willful misconduct.
9.10 AMENDMENT. The terms and provisions of this Agreement may not be
waived or amended, except in a writing executed by Borrower and a duly
authorized officer of Silicon.
9.11 TIME OF ESSENCE. Time is of the essence in the performance by Borrower
of each and every obligation under this Agreement.
9.12 ATTORNEYS FEES AND COSTS. Borrower shall reimburse Silicon for all
reasonable attorneys' fees and all filing, recording, search, title insurance,
appraisal, audit, and other reasonable costs incurred by Silicon, pursuant to,
or in connection with, or relating to this Agreement (whether or not a lawsuit
is filed), including, but not limited to, any reasonable attorneys' fees and
costs Silicon incurs in order to do the following: prepare and negotiate this
Agreement and all present and future documents relating to this
-19-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
Agreement; obtain legal advice in connection with this Agreement or Borrower;
enforce, or seek to enforce, any of its rights; prosecute actions against, or
defend actions by, Account Debtors; commence, intervene in, or defend any action
or proceeding; initiate any complaint to be relieved of the automatic stay in
bankruptcy; file or prosecute any probate claim, bankruptcy claim, third-party
claim, or other claim; examine, audit, copy, and inspect any of the Collateral
or any of Borrower's books and records; protect, obtain possession of, lease,
dispose of, or otherwise enforce Silicon's security interest in, the Collateral;
and otherwise represent Silicon in any litigation relating to Borrower. In
satisfying Borrower's obligation hereunder to reimburse Silicon for attorneys
fees, Borrower may, for convenience, issue checks directly to Silicon's
attorneys, Xxxxxxxx Xxxxxxx LLP, but Borrower acknowledges and agrees that
Xxxxxxxx Xxxxxxx LLP is representing only Silicon and not Borrower in connection
with this Agreement. If either Silicon or Borrower files any lawsuit against the
other predicated on a breach of this Agreement, the prevailing party in such
action shall be entitled to recover its reasonable costs and attorneys' fees,
including (but not limited to) reasonable attorneys' fees and costs incurred in
the enforcement of, execution upon or defense of any order, decree, award or
judgment. All attorneys' fees and costs to which Silicon may be entitled
pursuant to this Paragraph shall immediately become part of Borrower's
Obligations, shall be due on demand, and shall bear interest at a rate equal to
the highest interest rate applicable to any of the Obligations.
9.13 BENEFIT OF AGREEMENT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective successors, assigns,
heirs, beneficiaries and representatives of Borrower and Silicon; provided,
however, that Borrower may not assign or transfer any of its rights under this
Agreement without the prior written consent of Silicon, and any prohibited
assignment shall be void. No consent by Silicon to any assignment shall release
Borrower from its liability for the Obligations.
9.14 JOINT AND SEVERAL LIABILITY. If Borrower consists of more than one
Person, their liability shall be joint and several, and the compromise of any
claim with, or the release of, any Borrower shall not constitute a compromise
with, or a release of, any other Borrower.
9.15 LIMITATION OF ACTIONS. Any claim or cause of action by Borrower
against Silicon, its directors, officers, employees, agents, accountants or
attorneys, based upon, arising from, or relating to this Loan Agreement, or any
other Loan Document, or any other transaction contemplated hereby or thereby or
relating hereto or thereto, or any other matter, cause or thing whatsoever,
occurred, done, omitted or suffered to be done by Silicon, its directors,
officers, employees, agents, accountants or attorneys, shall be barred unless
asserted by Borrower by the commencement of an action or proceeding in a court
of competent jurisdiction by the filing of a complaint within one (1) year after
the first act, occurrence or omission upon which such claim or cause of action,
or any part thereof, is based, and the service of a summons and complaint on an
officer of Silicon, or on any other person authorized to accept service on
behalf of Silicon, within thirty (30) days thereafter. Borrower agrees that such
one-year period is a reasonable and sufficient time for Borrower to investigate
and act upon any such claim or cause of action. The one-year period provided
herein shall not be waived, tolled, or extended except by the written consent of
Silicon in its sole discretion. This provision shall survive any termination of
this Loan Agreement or any other Loan Document.
9.16 PARAGRAPH HEADINGS; CONSTRUCTION. Paragraph headings are only used in
this Agreement for convenience. Borrower and Silicon acknowledge that the
headings may not describe completely the subject matter of the applicable
paragraph, and the headings shall not be used in any manner to construe, limit,
define or interpret any term or provision of this Agreement. This Agreement has
been fully reviewed and negotiated between the parties and no uncertainty or
ambiguity in any term or provision of
-20-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
this Agreement shall be construed strictly against silicon or Borrower under any
rule of construction or otherwise.
9.17 GOVERNING LAW; JURISDICTION; VENUE. This Agreement and all acts and
transactions hereunder and all rights and obligations of Silicon and Borrower
shall be governed by the laws of the Commonwealth of Pennsylvania. As a material
part of the consideration to the parties to enter into this Agreement, each of
Silicon and Borrower: (i) agrees that all actions and proceedings relating
directly or indirectly to this Agreement shall, at Silicon's option, be
litigated in state or federal courts located within the Common wealth of
Pennsylvania; (ii) consents to the jurisdiction and venue of any such court and
consents to service of process in any such action or proceeding by personal
delivery or any other method permitted by law; and (iii) waives any and all
rights it may have to object to the jurisdiction of any such court, or to
transfer or change the venue of any such action or proceeding, provided,
however, that if for any reason Silicon cannot avail itself of such courts in
the Commonwealth of Pennsylvania, Borrower accepts jurisdiction of the courts
and venue in Santa Clara, California.
9.18 MUTUAL WAIVER OF JURY TRIAL. BORROWER AND SILICON EACH HEREBY WAIVE
THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT
OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN SILICON AND BORROWER, OR ANY CONDUCT, ACTS OR
OMISSIONS OF SILICON OR BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH SILICON OR BORROWER, IN
ALL OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
9.19 PAYMENT ON NON-BUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a day other than a Business Day, such
payment may be made on the next succeeding Business Day, provided however that
such extension of time shall be included in the computation of interest due in
conjunction with such payment or other fees due hereunder, as the case may be.
BORROWER: SILICON:
ANIMAS CORPORATION SILICON VALLEY BANK
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxx
---------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxxxx
Title: V.P. Title: V.P.
ANIMAS DIABETES CARE, LLC
BY: ANIMAS CORPORATION, ITS SOLE MEMBER
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: V.P.
-21-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
SILICON VALLEY BANK
SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWERS: ANIMAS CORPORATION ("COMPANY")
AND ANIMAS DIABETES CARE, LLC
ADDRESS: 000 XXXXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXX 00000
DATE: NOVEMBER 7, 2003
This Schedule forms an integral part of the Loan and Security Agreement between
Silicon Valley Bank and the above-borrower of even date.
1. CREDIT LIMIT An amount not to exceed the lesser of: (i)
(Section 1.1): Six Million Dollars ($6,000,000) at any one
time outstanding (the "Maximum Credit
Limit"); or (ii) the sum of (a) seventy five
(75%) (the "Advance Rate") of the amount of
Borrower's Eligible Accounts (as defined in
Section 8 above) and (b) twenty five percent
(25%) of Eligible Inventory (as defined in
Section 8 above), but not to exceed the
lesser of Three Hundred Thousand Dollars
($300,000) or seventy percent (70%) of the
orderly liquidation value of Eligible
Inventory as determined by an appraiser
selected by Silicon and further provided,
that at no time shall patient "co-pays"
exceed five percent (5%) of Eligible
Accounts. In addition, the amount available
under the Loans shall be reduced by the
outstanding principal balance of the
Existing Equipment Loan and the final
payment due thereunder.
Silicon may, from time to time, modify the
Advance Rate, in its good faith business
judgment, upon notice to the Borrower, based
on changes in collection experience with
respect to Accounts or other issues or
factors relating to the Accounts or other
Collateral.
LETTER OF CREDIT/ FOREIGN
EXCHANGE/CASH MANAGEMENT
SUBLIMIT (Sections 1.6-1.8): Seven Hundred Fifty Thousand Dollars
($750,000)
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
2. INTEREST.
INTEREST RATE (Section 1.2):
A rate equal to the "Prime Rate" in effect
from time to time, plus 1.75% per annum,
provided that the interest rate in effect on
any day shall not be less than five and
three quarters of one percent (5.75%) per
annum. Interest shall be calculated on the
basis of a 360-day year for the actual
number of days elapsed. "Prime Rate" means
the rate announced from time to time by
Silicon as its "prime rate;" it is a base
rate upon which other rates charged by
Silicon are based, and it is not necessarily
the best rate available at Silicon. The
interest rate applicable to the Obligations
shall change on each date there is a change
in the Prime Rate.
3. FEES (Section 1.4):
Loan Fee: Forty Five Thousand Dollars ($45,000),
payable concurrently herewith.
Collateral Monitoring Fee: $750, per month, payable in arrears
(prorated for any partial month at the
beginning and at termination of this
Agreement and $200 for any month where there
are no outstanding payment Obligations).
Unused Portion Fee: The Borrower shall pay to Silicon a fee
(collectively, the "Unused Line Fees" and
individually, a "Unused Line Fee") in an
amount equal to one half of one percent
(0.50%) per annum of the average daily
unused and undisbursed portion of the
Maximum Credit Limit accruing during each
month. The accrued and unpaid portion of the
Unused Line Fee shall be paid by the
Borrower to Silicon on the last day of each
month, commencing on the first such date
following the date hereof, and on the
Maturity Date.
4. MATURITY DATE
(Section 6.1): May 6, 2005
5. FINANCIAL COVENANTS
(Section 5.1): Borrower shall comply with each of the
following covenants. Compliance shall be
determined as of the end of each month,
except as otherwise specifically provided
below:
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
MINIMUM TANGIBLE Borrower shall maintain a Tangible Net Worth
NET WORTH; of not less than the sum of (a) and (b):
(a) Tangible Net Worth: Applicable Period:
(a) $7,000,000 from the date
hereof through
December 31, 2003;
$5,500,000 January 31, 2004
through May 31,
2004;
$6,000,000 June 30, 2004
through August 31,
2004; and
$7,500,000 September 30, 2004
and at all times
thereafter;
plus
(b) fifty percent (50%) of the net proceeds
from any issuance by the Borrower of equity
or subordinate debt after the date hereof.
DEFINITIONS. For purposes of the foregoing financial
covenants, the following term shall have the
following meaning:
"Tangible Net Worth" shall mean the excess
of total assets over total liabilities,
determined in accordance with GAAP, with the
following adjustments:
(A) there shall be excluded from assets:
(i) notes, accounts receivable and other
obligations owing to Borrower from its
officers or other Affiliates, (ii) all
assets which would be classified as
intangible assets under GAAP, including
without limitation goodwill, licenses,
patents, trademarks, trade names,
copyrights, capitalized software and
organizational costs, licenses and
franchises, and (iii) all accrued
dividends.
(B) there shall be excluded from
liabilities: all indebtedness which is
subordinated to the Obligations under a
subordination agreement in form specified
by Silicon or by language in the
instrument evidencing the indebtedness
which Silicon agrees in writing is
acceptable to Silicon in its good faith
business judgment.
6. REPORTING.
(Section 5.3): Borrower shall provide Silicon with the
following:
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
1. Weekly transaction reports and schedules
of collections, on Silicon's standard
form.
2. Monthly accounts receivable agings, aged
by invoice date, within fifteen (15) days
after the end of each month.
3. Monthly accounts payable agings, aged by
invoice date, and outstanding or held
check registers, if any, within fifteen
(15) days after the end of each month.
4. Monthly reconciliations of accounts
receivable agings (aged by invoice date),
transaction reports, and general ledger,
within fifteen (15) days after the end of
each month.
5. Monthly perpetual inventory reports for
the Inventory valued on a first-in,
first-out basis at the lower of cost or
market (in accordance with GAAP) or such
other inventory reports as are requested
by Silicon in its good faith business
judgment, all within fifteen (15) days
after the end of each month.
6. Monthly unaudited financial statements,
as soon as available, and in any event
within thirty (30) days after the end of
each month.
7. Monthly Compliance Certificates, within
thirty (30) days after the end of each
month, in such form as Silicon shall
reasonably specify, signed by the Chief
Financial Officer of Borrower, certifying
that as of the end of such month Borrower
was in full compliance with all of the
terms and conditions of this Agreement,
and setting forth calculations showing
compliance with the financial covenants
set forth in this Agreement and such
other information as Silicon shall
reasonably request, including, without
limitation, a statement that at the end
of such month there were no held checks.
8. Quarterly unaudited financial statements,
as soon as available, and in any event
within forty-five (45) days after the end
of each of the first three (3) fiscal
quarter of Borrower.
9. Annual operating budgets (including
income statements, balance sheets and
cash flow statements, by month) for the
upcoming fiscal year of Borrower within
thirty (30) days prior to the end of each
fiscal year of Borrower.
10. Annual financial statements, as soon as
available, and in any event within one
hundred twenty (120) days following the
end of Borrower's fiscal year, certified
by, and with an unqualified opinion of,
independent certified public accountants
acceptable to Silicon.
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
7. BORROWER INFORMATION: Borrower represents and warrants that the
information set forth in the Representations
and Warranties of the Borrower dated
November 3, 2003 previously submitted to
Silicon (the "Representations") is true and
correct as of the date hereof.
8. ADDITIONAL PROVISIONS
1. BANKING RELATIONSHIP. Borrower shall at
all times maintain its primary banking
relationship with Silicon. Without
limiting the generality of the foregoing,
Borrower shall, at all times, maintain
not less than 75% of its total cash and
investments on deposit with Silicon. As
to any Deposit Accounts and investment
accounts maintained with another
institution, Borrower shall cause such
institution, within thirty (30) days
after the date of this Agreement, to
enter into a control agreement in form
acceptable to Silicon in its good faith
business judgment in order to perfect
Silicon's first-priority security
interest in said Deposit Accounts and
investment accounts.
2. SUBORDINATION OF INSIDE DEBT. All present
and future indebtedness of Borrower to
its officers, directors and shareholders
("Inside Debt") shall, at all times, be
subordinated to the Obligations pursuant
to a subordination agreement on Silicon's
standard form. Borrower represents and
warrants that there is no Inside Debt
presently outstanding, except for the
following: ______________________. Prior
to incurring any Inside Debt in the
future, Borrower shall cause the person
to whom such Inside Debt will be owed to
execute and deliver to Silicon a
subordination agreement on Silicon's
standard form.
3. INTELLECTUAL PROPERTY SECURITY AGREEMENT.
As a condition precedent to the
effectiveness of this Agreement, the
Borrower shall have executed and
delivered an Intellectual Property
Security Agreement (the "IP Security
Agreement"), substantially in the form
attached hereto as Exhibit B and a
Negative Pledge Agreement (the "Negative
Pledge") substantially in the form
attached hereto as Exhibit C.
4. CASH/AVAILABILITY. Borrower shall at all
times maintain not less than Five Hundred
Thousand Dollars ($500,000) in a
combination of unencumbered cash with
Silicon and/or availability under the
Loans.
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
BORROWER: SILICON:
ANIMAS CORPORATION SILICON VALLEY BANK
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxx
---------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxxxx
Title: V.P. Title: V.P.
ANIMAS DIABETES CARE, LLC
BY: ANIMAS CORPORATION, ITS SOLE MEMBER
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: V.P.
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
COMPLIANCE CERTIFICATE
To: Silicon Valley Bank
One Newton Executive Park
Suite 200
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
From: ANIMAS CORPORATION
ANIMAS DIABETES CARE, LLC
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
The undersigned authorized Officers of Animas Corporation and Animas Diabetes
Care, LLC ("Borrower"), hereby certifies that in accordance with the terms and
conditions of the Loan and Security Agreement, as modified from time to time,
the Borrower is in complete compliance for the period ending _____________ of
all required conditions and terms except as noted below. Attached herewith are
the required documents supporting the above certification. The Officer further
certifies that these are prepared in accordance with Generally Accepted
Accounting Principles (GAAP) and are consistent from one period to the next
except as explained in an accompanying letter or footnotes.
Please indicate compliance status by circling Yes/No under
"Complies" column.
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
Financials & Comp. Cert. Monthly w/in 30 days YES/NO
Quarterly Financials Quarterly w/in 45 days YES/NO
Receivable agings (invoice date) Monthly w/in 15 days YES/NO
Reconciliations of A/R agings, Monthly w/in 15 days YES/NO
Transactions reports, G/L
Payables agings Monthly w/in 15 days YES/NO
Held Checks YES/NO
If YES, Held Checks Register Monthly w/in 15 days YES/NO
Audited Annual Financials FYE w/in 120 days YES/NO
Annual Operating Budget W/in 30 days prior to FYE YES/NO
FINANCIAL COVENANT REQUIRED ACTUAL
------------------ -------- ------
Minimum Tangible Net Worth $____________ $______________
(Tested Monthly) (a) +(b)+(c)
(a) through December 31,2003 $7,000,000 $______________
January 31, 2004 through
May 31, 2004 $5,500,000 $______________
June 30, 2004
through August 31, 2004 $6,000,000 $______________
September 30
And at all times thereafter $7,500,000 $______________
(b) + 50% of equity issued _____________ +______________
(c) + 50% of sub-debt incurred _____________ +______________
Total $______________
COMPLIES? YES/NO
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
Terms are defined in the Schedule to the Loan Agreement, Section 5.1.
Comments regarding financial covenants:
By: ________________________________
Name:_______________________________
Title:______________________________
Received:
By: ________________________________
Name:_______________________________
Title:______________________________
WARRANT TO PURCHASE STOCK
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS
OF ARTICLE 5 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE TERMS OF THIS
WARRANT AND UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE
STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER,
SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER ARE FURTHER SUBJECT TO
THE TERMS AND CONDITIONS OF THE Amended and Restated Stockholders
Agreement, dated as of October 11, 2001, as amended, BY AND AMONG THE
COMPANY AND CERTAIN HOLDERS OF THE COMPANY'S SECURITIES, AS SUCH MAY BE
AMENDED FROM TIME TO TIME. THIS WARRANT AND THE SHARES ISSUABLE
HEREUNDER MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT
IN ACCORDANCE WITH SAID STOCKHOLDERS AGREEMENT, A COPY OF WHICH IS
AVAILABLE FREE-OF-CHARGE UPON WRITTEN REQUEST TO THE COMPANY.
WARRANT TO PURCHASE STOCK
Company: Animas Corporation, a Delaware corporation
Number of Shares: 5,000, subject to adjustment
Class of Stock: Series C Convertible Preferred Stock, $0.01 par
value per share
Warrant Price: $12.50 per share
Issue Date: December 31, 2003
Expiration Date: The earlier of (a) 5:00 p.m., Eastern Time, on
December 31, 2013, or (b) immediately prior to the
closing of a Qualified Public Offering (as defined
herein).
THIS WARRANT CERTIFIES THAT, for the agreed upon value of
$1.00 and for other good and valuable consideration, SILICON VALLEY
BANK ("Holder") is entitled to purchase the number of fully paid and
nonassessable shares of the class of securities (the "Shares") of the
company (the "Company") at the Warrant Price, all as set forth above
and as adjusted pursuant to Article 2 of this Warrant, subject to the
provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. Exercise.
1.1 Method of Exercise. Holder may exercise this Warrant
by delivering a duly executed Notice of Exercise in substantially the
form attached as Appendix 1 to the principal office of the Company.
Unless Holder is exercising the conversion right set forth in Article
1.2, Holder shall also deliver to the Company a certified or official
bank check, wire transfer (to an account designated by the Company), or
other form of payment acceptable to the Company for the aggregate
Warrant Price for the Shares being purchased, as a condition to
exercising this Warrant.
1.2 Conversion Right. In lieu of exercising this Warrant
as specified in Article 1.1, Holder may from time to time convert this
Warrant, in whole or in part, into a number of Shares determined by
dividing (a) the aggregate fair market value of the Shares or other
securities otherwise issuable upon exercise of this Warrant minus the
aggregate Warrant Price of such Shares by (b) the fair market value of
one Share. The fair market value of the Shares shall be determined
pursuant to Article 1.3.
1.3 Fair Market Value. If the Company's common stock,
$0.01 par value per share ("Common Stock"), is traded in a public
market, the fair market value of a Share shall be the closing price of
a share of the Company's Common Stock reported for the business day
immediately before Holder delivers its Notice of Exercise to the
Company (or, in the instance where the Warrant is exercised immediately
prior to the effectiveness of the Company's initial public offering,
the initial "price to public" per share price specified in the final
prospectus relating to such offering), in both cases, multiplied by the
number of shares of the Company's Common Stock into which a Share is
convertible. If the Company's Common Stock is not traded in a public
market, the Board of Directors of the Company shall determine fair
market value in its reasonable good faith judgment.
1.4 Delivery of Certificate and New Warrant. Promptly
after Holder properly exercises or converts this Warrant, but in any
event within ten (10) days after such exercise or conversion in
accordance with the terms of this Warrant, and, if applicable, the
Company receives payment of the aggregate Warrant Price, the Company
shall deliver to Holder certificates for the Shares acquired and, if
this Warrant has not been fully exercised or converted and has not
expired, a new Warrant representing the right to purchase Shares not so
acquired; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in
the issuance and delivery of any such certificate(s) in a name other
than that of Holder, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
1.5 Replacement of Warrants. On receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant and, in the case of loss, theft or
destruction, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of
mutilation, or surrender and cancellation of this Warrant, the Company
shall, at its expense, execute and deliver, in lieu of this Warrant, a
new warrant of like tenor.
1.6 Treatment of Warrant Upon Acquisition of Company.
1.6.1 "Acquisition". For the purpose of this Warrant,
"Acquisition" means any sale, license, or other disposition of all or
substantially all of the assets of the Company, or any reorganization,
consolidation, or merger of the Company where the holders of the
Company's securities before the transaction beneficially own less than
50% of the outstanding voting securities of the surviving entity after
the transaction.
1.6.2 Treatment of Warrant at Acquisition.
(a) Upon the written request of the Company, Holder
agrees that, in the event of an Acquisition in which the sole
consideration consists of cash, cash equivalents or marketable
securities, either (a) Holder shall exercise its conversion or purchase
right under this Warrant and such exercise will be deemed effective
immediately prior to the consummation of such Acquisition or (b) if
Holder elects not to exercise the Warrant, this Warrant will expire
upon the consummation of such Acquisition. The Company shall provide
the Holder with written notice of its request relating to the foregoing
(together with such reasonable information as the Holder may request in
connection with such contemplated Acquisition giving rise to such
notice), which is to be delivered to Holder not less than ten (10) days
prior to the closing of the proposed Acquisition.
(b) Upon the written request of the Company, Holder
agrees that, in the event of an Acquisition that is an "arms length"
sale of all or substantially all of the Company's assets (and only its
assets) to a third party that is not an Affiliate (as defined below) of
the Company (a "True Asset Sale"), either (a) Holder shall exercise its
conversion or purchase right under this Warrant and such exercise will
be deemed effective immediately prior to the consummation of such
Acquisition or (b) if Holder elects not to exercise the Warrant, this
Warrant will continue until the Expiration Date if the Company
continues to manage or operate a business following the closing of any
such True Asset Sale, otherwise such Warrant will terminate
simultaneous with the closing. The Company shall provide the Holder
with written notice of its request relating to the foregoing (together
with such reasonable information as the Holder may request in
connection with such contemplated Acquisition giving rise to such
notice), which is to be delivered to Holder not less than ten (10) days
prior to the closing of the proposed Acquisition.
(c) Upon the closing of any Acquisition other than those
particularly described in subsections (a) and (b) above, the successor
entity shall assume the obligations of this Warrant, and this Warrant
shall be exercisable for the securities, cash, and property as nearly
equivalent as practicable to those that would be payable for the Shares
issuable upon exercise of the unexercised portion of this Warrant as if
such Shares were outstanding on the record date for the Acquisition and
subsequent closing. The Warrant Price shall be adjusted such that the
product of (i) the Warrant Price in effect immediately prior to the
closing of such Acquisition, and (ii) the number of Shares then
issuable upon exercise of this Warrant, equals the product of (i) the
number of shares or other securities or property for which this Warrant
shall be exercisable immediately following the closing of such
Acquisition, and (ii) the Warrant Price in effect immediately following
the closing of such Acquisition, and the Warrant Price and number and
class of Shares shall continue to be subject to adjustment from time to
time in accordance with the provisions hereof.
As used herein "Affiliate" shall mean any person or entity
that owns or controls directly or indirectly ten (10) percent or more
of the stock of Company, any person or entity that controls or is
controlled by or is under common control with such persons or entities,
and each of such person's or entity's officers, directors, joint
venturers or partners, as applicable.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Etc. If the Company declares
or pays a dividend on the outstanding shares of the Company's Series C
Convertible Preferred Stock, $0.01 par value per share ("Series C
Stock"), payable in Series C Stock or other securities, then upon
exercise of this Warrant, for each Share acquired, Holder shall
receive, without cost to Holder, the total number and kind of
securities to which Holder would have been entitled had Holder owned
the Shares of record as of the date the dividend occurred. If the
Company subdivides the Shares by reclassification or otherwise into a
greater number of shares or takes any other action which increases the
amount of stock into which the Shares are convertible, the number of
shares purchasable hereunder shall be proportionately increased and the
Warrant Price shall be proportionately decreased. If the outstanding
Shares are combined or consolidated, by reclassification or otherwise,
into a lesser number of Shares, the Warrant Price shall be
proportionately increased and the number of Shares shall be
proportionately decreased.
2.2 Reclassification, Exchange, Combinations or
Substitution. Upon any reclassification, exchange, substitution, or
other event that results in a change of the number and/or class of the
securities issuable upon exercise or conversion of this Warrant, Holder
shall be entitled to receive, upon exercise or conversion of this
Warrant, the number and kind of securities and property that Holder
would have received for the Shares if this Warrant had been exercised
immediately before such reclassification, exchange, substitution, or
other event. Such an event shall include any automatic conversion of
the outstanding or issuable securities of the Company of the same class
or series as the Shares to Common Stock pursuant to the terms of the
Company's Articles or Certificate (as applicable) of Incorporation upon
the closing of a registered public offering of the Company's Common
Stock. The Company or its successor shall promptly issue to Holder an
amendment to this Warrant setting forth the number and kind of such new
securities or other property issuable upon exercise or conversion of
this Warrant as a result of such reclassification, exchange,
substitution or other event that results in a change of the number
and/or class of securities issuable upon exercise or conversion of this
Warrant. The amendment to this Warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 2 including, without
limitation, adjustments to the Warrant Price and to the number of
securities or property issuable upon exercise of the new Warrant. The
provisions of this Article 2.2 shall similarly apply to successive
reclassifications, exchanges, substitutions, or other events.
2.3 Adjustments for Diluting Issuances. The number of
shares of Common Stock issuable upon conversion of the Shares, shall be
subject to adjustment, from time to time in the manner set forth in the
Company's Certificate of Incorporation as if the Shares were issued and
outstanding on and as of the date of any such required adjustment. The
provisions set forth for the Shares in the Company's Certificate of
Incorporation relating to the above in effect as of the Issue Date may
not be amended, modified or waived, without the prior written consent
of Holder unless such amendment, modification or waiver affects the
rights associated with the Shares in the same manner as such amendment,
modification or waiver affects the rights associated with all other
shares of the same series and class as the Shares granted to the
Holder.
2.4 No Impairment. The Company shall not, by amendment of
its Certificate (as applicable) of Incorporation or through a
reorganization, transfer of assets, consolidation, merger, dissolution,
issue, or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the Company, but shall at
all times in good faith assist in carrying out of all the provisions of
this Article 2 and in taking all such action as may be necessary or
appropriate to protect Holder's rights under this Article against
impairment.
2.5 Fractional Shares. No fractional Shares shall be
issuable upon exercise or conversion of the Warrant and the number of
Shares to be issued shall be rounded down to the nearest whole Share.
If a fractional share interest arises upon any exercise or conversion
of the Warrant, the Company shall eliminate such fractional share
interest by paying Holder the amount computed by multiplying the
fractional interest by the fair market value (determined in accordance
with Section 1.3 above) of a full Share.
2.6 Certificate as to Adjustments. Upon each adjustment
of the Warrant Price, the Company shall promptly notify Holder in
writing, and, at the Company's expense, promptly compute such
adjustment, and furnish Holder with a certificate of its Chief
Financial Officer setting forth such adjustment and the facts upon
which such adjustment is based. The Company shall, upon written
request, furnish Holder a certificate setting forth the Warrant Price
in effect upon the date thereof and the series of adjustments leading
to such Warrant Price.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company
represents and warrants to the Holder as follows:
(a) The initial Warrant Price referenced on the first
page of this Warrant is not greater than the price per share at which
the Company's Series C Convertible Preferred Stock, $0.01 par value per
share ("Series C Stock") was last issued in an arms-length transaction
in which at least $500,000 of the Series C Stock were sold
(b) All Shares which may be issued upon the exercise of
the purchase right represented by this Warrant, and all securities, if
any, issuable upon conversion of the Shares, shall, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable, and free
of any liens and encumbrances except for restrictions on transfer
provided for herein, under applicable federal and state securities
laws, under the Company's Amended and Restated Stockholders Agreement,
dated as of October 11, 2001, as amended, by and among the Company and
certain holders of the Company's securities (the "Stockholders
Agreement"), or created by any Holder of this Warrant.
(c) The Company further covenants and agrees that, during
the period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized and reserved
for the purpose of issue or transfer upon exercise of the subscription
rights evidenced by this Warrant, a sufficient number of Shares of
authorized but unissued stock, or other securities and property, when
and as required to provide for the exercise of the rights represented
by this Warrant.
(d) The capitalization table of the Company attached
hereto as Exhibit A is true and complete as of the Issue Date.
3.2 Notice of Certain Events. If the Company proposes at
any time prior to the consummation of the Company's QIPO (as defined
below) (a) to declare any dividend or distribution upon any of its
Common Stock or Series C Stock, whether in cash, property, stock, or
other securities and whether or not a regular cash dividend; (b) to
offer for sale pro rata to the holders of its Series C Stock and/or
Common Stock additional shares of any class or series of the Company's
stock; (c) to effect any
reclassification or recapitalization of any of its stock; (d) to merge
or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to
liquidate, dissolve or wind up; or (e) offer holders of registration
rights the opportunity to participate in an underwritten public
offering of the Company's securities for cash, then, in connection with
each such event, the Company shall give Holder: (1) at least 10 days
prior written notice of the date on which a record will be taken for
such dividend, distribution, or subscription rights (and specifying the
date on which the holders of Common Stock will be entitled thereto) or
for determining rights to vote, if any, in respect of the matters
referred to in (c) and (d) above; (2) in the case of the matters
referred to in (c) and (d) above at least 10 days prior written notice
of the date when the same will take place (and specifying the date on
which the holders of Common Stock will be entitled to exchange their
Common Stock for securities or other property deliverable upon the
occurrence of such event); and (3) in the case of the matter referred
to in (e) above, the same notice as is given to the holders of such
registration rights. For purposes of this Agreement, "QIPO" shall mean
an underwritten public offering on a firm commitment basis pursuant to
an effective registration statement filed pursuant to the Securities
Act of 1933, as amended, (other than on Form S-4 or S-8 or any
successor forms thereto) covering the offer and sale of Common Stock
for the account of the Company in which the aggregate gross proceeds
exceed $40,000,000 (calculated before deducting underwriters
commissions and other offering expenses), and in which the public
offering price per share of Common Stock (calculated before deducting
underwriters discounts and commissions) equals or exceeds $20.00, based
on the Company's capital structure as of the date hereof, as
subsequently adjusted to reflect the effect of any subdivision,
combination or reverse stock split.
3.3 Registration Under Securities Act of 1933, as
amended. The Holder agrees that as a condition to the issuance of this
Warrant and as a condition to any exercise hereof it will execute a
joinder to the Company's Amended and Restated Registration Rights
Agreement, dated as of October 11, 2001, as amended and as the same may
be amended from time to time (the "Registration Rights Agreement"),
substantially in the form attached as Appendix 3 hereto.
3.4 No Shareholder Rights. Except as provided in this
Warrant, the Holder will not have any rights as a shareholder of the
Company until the exercise of this Warrant. The Holder agrees that as a
condition to the issuance of this Warrant, and as a condition to any
exercise hereof, it will execute a joinder to the Company's
Stockholders Agreement, substantially in the form attached as Appendix
4 hereto, as the same may be amended from time to time.
ARTICLE 4. REPRESENTATIONS, WARRANTIES OF THE HOLDER. The
Holder represents and warrants to the Company as follows:
4.1 Purchase for Own Account. This Warrant and the
securities to be acquired upon exercise of this Warrant by the Holder
will be acquired for investment for the Holder's account, not as a
nominee or agent, and not with a view to sale or distribution in
violation of federal and state securities laws. Holder also represents
that the Holder has not been formed for the specific purpose of
acquiring this Warrant or the Shares.
4.2 Disclosure of Information. The Holder has received or
has had full access to all the information it considers necessary or
appropriate to make an informed investment decision with respect to the
acquisition of this Warrant and its underlying securities. The Holder
further has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of the
offering of this Warrant and its underlying securities and to obtain
additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to the Holder or to which
the Holder has access.
4.3 Investment Experience. The Holder understands that
the purchase of this Warrant and its underlying securities involves
substantial risk. The Holder has experience as an investor in
securities of companies in the development stage and acknowledges that
the Holder can bear the economic risk of such Holder's investment in
this Warrant and its underlying securities and has such knowledge and
experience in financial or business matters that the Holder is capable
of evaluating the merits and risks of its investment in this Warrant
and its underlying securities and is capable of making an investment
decision with respect to the Company.
4.4 Accredited Investor Status. The Holder is an
"accredited investor" within the meaning of Regulation D promulgated
under the Act.
4.5 The Act. The Holder understands that this Warrant and
the Shares issuable upon exercise or conversion hereof have not been
registered under the Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona
fide nature of the Holder's investment intent as expressed herein. The
Holder understands that this Warrant and the Shares issued upon any
exercise or conversion hereof must be held indefinitely unless
subsequently registered under the Act and qualified under applicable
state securities laws, or unless exemption from such registration and
qualification is otherwise available.
4.6 No General Solicitation. Neither the Holder nor any
of its affiliates has engaged in any activity that would be deemed a
"general solicitation" under the provisions of Regulation D under the
Act.
ARTICLE 5. MISCELLANEOUS.
5.1 Term: This Warrant is exercisable in whole or in part
at any time and from time to time on or before the Expiration Date.
5.2 Legends. This Warrant and the Shares (and the
securities issuable, directly or indirectly, upon conversion of the
Shares, if any) shall be imprinted with a legend in substantially the
following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE
PROVISIONS OF ARTICLE 5 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE
TERMS OF THIS WARRANT AND UNLESS AND UNTIL REGISTERED UNDER SAID ACT
AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM
REGISTRATION. THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER ARE
FURTHER SUBJECT TO THE TERMS AND CONDITIONS OF THE AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF OCTOBER 11, 2001, AS AMENDED, BY
AND AMONG THE COMPANY AND CERTAIN HOLDERS OF THE COMPANY'S SECURITIES,
AS SUCH MAY BE AMENDED FROM TIME TO TIME. THIS WARRANT AND THE SHARES
ISSUABLE HEREUNDER MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED
OF EXCEPT IN ACCORDANCE WITH SAID STOCKHOLDERS AGREEMENT, A COPY OF
WHICH IS AVAILABLE FREE-OF-CHARGE UPON WRITTEN REQUEST TO THE COMPANY.
5.3 Compliance with Securities Laws on Transfer. This
Warrant and the Shares issuable upon exercise of this Warrant (and the
securities issuable, directly or indirectly, upon conversion of the
Shares, if any) may not be transferred or assigned in whole or in part
without compliance with applicable federal and state securities laws by
the transferor and the transferee (including, without limitation, the
delivery of investment representation letters and legal opinions
reasonably satisfactory to the Company, as reasonably requested by the
Company). The Company shall not require Holder to provide an opinion of
counsel if the transfer is to Silicon Valley Bancshares (Holder's
parent company) or any other affiliate of Holder. Additionally, the
Company shall also not require an opinion of counsel if there is no
material question as to the availability of current information as
referenced in Rule 144(c), Holder represents that it has complied with
Rule 144(d) and (e) in reasonable detail, the selling broker represents
that it has complied with Rule 144(f), and the Company is provided with
a copy of Holder's notice of proposed sale. At the written request of
the Holder, who proposes to sell Stock issuable upon the exercise of
the Warrant in compliance with Rule 144, within ten (10) days after
receipt of such request, the Company shall furnish a written statement
confirming the Company's compliance with the filing requirements of the
Securities and Exchange Commission as set forth in such Rule, as such
Rule may be amended from time to time. In addition, the Company agrees
to provide the Holder within ten (10) days of written request a copy of
(i) the most recent annual or quarterly report of the Company and such
other reports and documents filed by the Company with the Securities
and Exchange Commission (the "SEC") and (ii) any additional documents
to be provided to the Company's shareholders under the Registration
Rights Agreement, as such Holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing such Holder to
sell any Shares without registration.
5.4 Transfer Procedure. After receipt by Holder of the
executed Warrant, Holder may transfer all of this Warrant to Silicon
Valley Bancshares, Holder's parent company, by execution and delivery
to the Company of an Assignment substantially in the form of Appendix
2. Subject to the provisions of Article 5.3, the Registration Rights
Agreement, and the Stockholders Agreement and upon providing Company
with written notice, Silicon Valley Bancshares and any subsequent
Holder may transfer all or part of this Warrant or the Shares issuable
upon exercise of this Warrant (or the Shares issuable directly or
indirectly, upon conversion of the Shares, if any) to any transferee,
provided, however, in connection with any such transfer, Silicon Valley
Bancshares or any subsequent Holder will give the Company notice of the
portion of the Warrant being transferred with the name, address and
taxpayer identification number of the transferee and Holder will
surrender this Warrant to the Company for reissuance to the
transferee(s) (and Holder if applicable). As a condition to any such
transfer, the transferee shall be required to execute a joinder to the
Stockholders Agreement and Registration Rights Agreement. The Company
may refuse to transfer this Warrant or the
Shares to any person who directly competes with the Company, unless, in
either case, the stock of the Company is publicly traded.
5.5 Notices. All notices and other communications from
the Company to the Holder, or vice versa, shall be in writing and shall
be deemed delivered and effective (a) when given personally upon hand
delivery; (b) when mailed by first-class registered or certified mail,
postage prepaid, five (5) business days after dispatch; (c) when sent
by telecopier or facsimile, on the date of transmission if such notice
is transmitted at or prior to 6:30 p.m. (California time) on a business
day (provided the sender receives confirmation of transmission) or on
the next business day after the date of transmission if such notice is
transmitted on a day that is not a business day or later than 6:30 p.m.
(California time) on any business day (provided the sender receives
confirmation of transmission); and (d) when sent by a nationally
recognized overnight courier such as Federal Express, on the next
business day after deposit with such courier at the address set forth
below or to such other address as a party may from time to time
designate by notice as provided herein, except that notices of changes
of address shall be effective only upon receipt. Effective upon the
initial transfer described in Article 5.4 above, all notices to the
Holder shall be addressed as follows until the Company receives notice
of a change of address in connection with a transfer or otherwise:
Silicon Valley Bancshares
Attn: Treasury Department
0000 Xxxxxx Xxxxx, XX 000
Xxxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notice to the Company shall be addressed as follows until the
Holder receives notice of a change in address:
Animas Corporation
Attn: Chief Financial Officer
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5.6 Waiver. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such change,
waiver, discharge or termination is sought.
5.7 Attorney's Fees. In the event of any dispute between
the parties concerning the terms and provisions of this Warrant, the
party prevailing in such dispute shall be entitled to collect from the
other party all costs incurred in such dispute, including reasonable
attorney's fees.
5.8 Automatic Conversion upon Expiration. In the event
that, upon the Expiration Date, the fair market value of one Share (or
other security issuable upon the exercise hereof) as determined in
accordance with Section 1.3 above is greater than the Warrant Price in
effect on such date, then this Warrant shall automatically be deemed on
and as of such date to be converted pursuant to Section 1.2 above as to
all Shares (or such other securities) for which it shall not previously
have been exercised or converted,
and the Company shall promptly deliver a certificate representing the
Shares (or such other securities) issued upon such conversion to the
Holder.
5.9 Counterparts. This Warrant may be executed in
counterparts, all of which together shall constitute one and the same
agreement.
5.10 Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to its principles regarding
conflicts of law.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
"COMPANY"
ANIMAS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
(Print)
Title: V.P. Finance
"HOLDER"
_________________________________
By:______________________________
Name:____________________________
(Print)
Title: __________________________
APPENDIX 1
NOTICE OF EXERCISE
1. Holder elects to purchase ___________ shares of the
Common/Series ______ Preferred [strike one] Stock of Animas Corporation
pursuant to the terms of the attached Warrant, and tenders payment of
the purchase price of the shares in full.
[or]
1. Holder elects to convert the attached Warrant into
Shares/cash [strike one] in the manner specified in the Warrant. This
conversion is exercised for _____________________ of the Shares covered
by the Warrant.
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates
representing the shares in the name specified below:
___________________________________________
Holders Name
___________________________________________
___________________________________________
(Address)
3. By its execution below and for the benefit of the
Company, Holder hereby restates each of the representations and
warranties in Article 4 of the Warrant as of the date hereof and
acknowledges that it has complied with all of its covenants contained
therein.
HOLDER:
____________________________
By: __________________________
Name: ________________________
Title: _______________________
(Date):_____________________
APPENDIX 2
ASSIGNMENT
For value received, Silicon Valley Bank hereby sells, assigns and
transfers unto
Name: Silicon Valley Bancshares
Address: 0000 Xxxxxx Xxxxx (XX-000)
Xxxxx Xxxxx, XX 00000
Tax ID: 00-0000000
that certain Warrant to Purchase Stock issued by Animas Corporation
(the "Company"), on October __, 2003 (the "Warrant") together with all
rights, title and interest therein.
SILICON VALLEY BANK
By: _____________________________________
Name:________________________________________________________________
Title:_______________________________________________________________
Date: October __, 2003
By its execution below, and for the benefit of the Company, Silicon
Valley Bancshares makes each of the representations and warranties set
forth in Article 4 of the Warrant as of the date hereof.
SILICON VALLEY BANCSHARES
By: _____________________________
Name: ___________________________
Title: __________________________
APPENDIX 3
JOINDER
TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
The undersigned, being the purchaser of the SVB Warrants as defined in
the Second Amendment to Amended and Restated Registration Rights Agreement dated
October 11, 2001, as previously amended (the "Registration Rights Agreement") is
hereby joined as a party to the Registration Rights Agreement, is deemed to be a
"Holder" for all purposes under such Registration Rights Agreement and hereby
adopts and agrees to be bound by all of the terms and provisions of, and shall
be entitled to all of the benefits and privileges of a Holder as defined in, the
Registration Rights Agreement, subject in all cases to the terms and conditions
thereof. The undersigned hereby acknowledges receipt of a copy of the
Registration Rights Agreement and certifies that it has read and fully
understands the terms and conditions thereof and its rights, responsibilities
and obligations thereunder.
SILICON VALLEY BANK
______________________________________
Signature of Authorized Person
______________________________________
Title of Authorized Person
Address:
One Newton Executive Park, Suite 200,
0000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel. Number:_________________________
Fax Number:__________________________
APPENDIX 4
JOINDER
TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
The undersigned, being the holder of the SVB Warrants as defined in the
Second Amendment to Amended and Restated Stockholders Agreement dated October
11, 2001, as previously amended (the "Stockholders Agreement") is hereby joined
as a party to the Stockholders Agreement, is deemed to be a "Stockholder" for
all purposes under such Stockholders Agreement and hereby adopts and agrees to
be bound by all of the terms and provisions of, and shall be entitled to all of
the benefits and privileges of a Stockholder as defined in, the Stockholders
Agreement, subject in all cases to the terms and conditions thereof. The
undersigned hereby acknowledges receipt of a copy of the Stockholders Agreement
and certifies that it has read and fully understands the terms and conditions
thereof and its rights, responsibilities and obligations thereunder.
SILICON VALLEY BANK
_____________________________________
Signature of Authorized Person
_____________________________________
Title of Authorized Person
Address:
One Newton Executive Park, Suite 200,
0000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel. Number:_________________________
Fax Number:__________________________
