EXHIBIT 1.2
REPAYMENT AGREEMENT
AGREEMENT made as of the 23rd day of March, 1999, by and between Advanced
Deposition Technologies, Inc., a Delaware corporation (ADTECH) and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ("▇▇▇▇▇▇"), an individual residing in Madrid Spain.
WHEREAS, ADTECH owes a certain amount of money to ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Guembe ("Guembe") under the terms of a certain promissory note; and
WHEREAS, Boxall has agreed to guarantee the debt of ADTECH to Guembe, in
exchange for the right to convert whatever amount Boxall pays to Guembe, into
shares of the common stock, $.01 par value per share (the "Common Stock") of
ADTECH.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement Relating to Outstanding Debt to Guembe.
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(a) ADTECH hereby agrees to use its best efforts, consistent with prudent
cash management practices and ADTECH's plan for growth, to pay all amounts due
and owing to Guembe under that certain promissory note, dated December 20, 1997
(the "Guembe Note"), issued by ADTECH to Guembe in the original principal amount
of Nine Hundred Ninety Thousand Dollars ($990,000) on or before December 19,
1999 (the "Maturity Date").
(b) If ADTECH determines that it will be unable to repay the total amount
due under the Guembe Note on or prior to the Maturity Date, ADTECH shall give
written notice of such determination to Boxall at least thirty (30) days prior
to the Maturity Date and Boxall hereby agrees to pay to Guembe any remaining
amount outstanding under the Guembe Note (together with any accumulated
outstanding interest as provided in Section 1(c) below, the "Boxall Debt"), on
behalf of ADTECH, on or before the Maturity Date.
(c) If Boxall is required to make any payment to Guembe pursuant to Section
1(b), ADTECH hereby agrees to use its best efforts, consistent with prudent cash
management practices and ADTECH's plan for growth, to repay the Boxall Debt on
or before December 31, 2000. The Boxall Debt shall bear interest at the thirty
day London Interbank Offered Rate, plus 2%, compounded monthly, based on such
rate as of the last day of such month and shall be due and payable on March 1,
2001 ("Boxall Debt Maturity Date"). For purposes of this Section 1(c), interest
on the Boxall Debt shall begin to accrue on the date on which Boxall makes a
payment to Guembe pursuant to Section 1(b) and shall continue until the earlier
of (x) the Conversion Date (as defined below), if Boxall elects to convert such
Debt into shares of Common Stock, as
provided in Section 1(d), (y) the Redemption Date (as defined below), if ADTECH
elects to redeem all of the outstanding balance of the Boxall Debt or (z) the
Boxall Debt Maturity Date.
(d) If on January 1, 2001 (the "Conversion Date"), there exists any
outstanding balance of the Boxall Debt, Boxall shall have the right at any time
after the Conversion Date through March 1, 2001, to convert all or part of the
outstanding balance of such Debt into shares of the Common Stock at a purchase
price per share equal to the Fair Market Value of the Common Stock on the
Conversion Date, but in no event less than Three Dollars and Fifty cents ($3.50)
per share. For purposes of this Section 1(d), "Fair Market Value" shall mean a
value equal to the average of the last reported sale price per share of the
Common Stock on the NASDAQ electronic bulletin board (or other principal United
States market on which the Common Stock is then trading) for the twenty (20)
consecutive business days ending with the last business day prior to the
Conversion Date. The certificate evidencing shares of Common Stock shall bear a
legend substantially similar to that described below in Section 1(g).
(e) If Boxall does not exercise his conversion right as set forth in
Section 1(d), ADTECH shall have the right at any time after January 31, 2001
through March 1, 2001, to redeem all of the outstanding balance of the Boxall
Debt for shares of Common Stock based on a price per share equal to the Fair
Market Value of the Common Stock. For purposes of this Section 1(e),
"Redemption Date" shall mean the date when ADTECH redeems all of the outstanding
balance of the Boxall Debt and "Fair Market Value" shall mean a value equal to
the average of the last reported sale price per share of the Common Stock on the
NASDAQ electronic bulletin board (or other principal United States market on
which the Common Stock is then trading) for the twenty (20) consecutive business
days ending with the last business day prior to the Redemption Date. The
certificate evidencing shares of Common Stock shall bear a legend substantially
similar to that described below in Section 1(g).
(f) If ADTECH has not paid all amounts owing to Boxall pursuant to Section
1(c) on or prior to November 30, 2000, ADTECH and their respective affiliates
(as defined in the Securities Act of 1933, as amended) agree that they will not
buy, sell or in any way, directly or indirectly, trade shares of Common Stock at
any time during the period from December 1, 2000 to and including March 1, 2001.
(g) If ADTECH issues shares of Common Stock to Boxall pursuant to Section
1(d) or 1(e) above, Boxall understands that the certificate(s) or other
instrument(s) representing such shares of Common Stock shall bear a restrictive
legend in substantially the following form (and a stop-transfer order may be
placed against transfer of such stock certificates):
LEGEND
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS, THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION
OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM. THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS
SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
2. Representations and Warranties of ADTECH.
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As an inducement to Boxall to enter into this Agreement and to consummate
the transactions contemplated hereby, ADTECH hereby represents and warrants to
Boxall as follows:
(a) ADTECH is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly licensed or
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the ownership or leasing of its assets or
properties requires it to be so licensed or qualified, except where the failure
to be so licensed or qualified would not individually, or in the aggregate, have
a material adverse effect on the business or operations of ADTECH.
(b) All corporate action necessary for the execution, delivery and
performance by ADTECH of this Agreement and the consummation by ADTECH of the
transactions contemplated hereby has been duly taken. This Agreement
constitutes the legal, valid and binding obligation of ADTECH enforceable
against ADTECH in accordance with its terms.
(c) Neither the execution and delivery of this Agreement by ADTECH nor the
consummation of the transactions contemplated hereby will (i) violate, conflict
with or result in the breach or termination of, or constitute a default under
ADTECH's organizational documents or the terms of any material agreement or
instrument to which ADTECH is a party or by which ADTECH is bound or subject,
(ii) violate any judgment, order, injunction, decree or award against or binding
upon ADTECH, or (iii) constitute a violation of any applicable law or regulation
of any applicable jurisdiction.
(d) The representations and warranties of ADTECH shall survive the Closing.
3. Representations and Warranties of Boxall.
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(a) This Agreement constitutes the legal, valid and binding obligation of
Boxall enforceable against Boxall in accordance with its terms.
(b) The representations and warranties of Boxall shall survive the Closing.
4. Condition Precedent.
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The performance of the obligations undertaken by the parties herein are
subject to the closing and consummation of the transactions set forth in that
certain Exchange Agreement by and among ADTECH, Boxall and DNA Export S.A. dated
as of the date hereof.
5. Miscellaneous.
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(a) Entire Agreement. This Agreement constitutes the entire agreement of
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the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral.
(b) Assignment. This Agreement shall not be assigned by operation of law
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or otherwise without the prior written consent of the other parties hereto.
This Agreement shall be binding upon the heirs, legatees and devisees,
executors, administrators and legal representatives of the parties, and upon the
permitted assigns of the parties.
(c) Amendment; Waiver. This Agreement may not be amended or modified
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except by an instrument in writing signed by the parties.
(d) Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the law of The Commonwealth of Massachusetts, without giving
effect to the conflict of law principles thereof.
(e) Counterparts. This Agreement may be executed in one or more
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counterparts, and by the parties hereto in separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(f) Notices. All notices, consents, requests, instructions, approvals and
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other communications provided for herein shall be deemed validly given, made or
served if in writing and delivered personally or sent by certified mail, postage
prepaid, or by recognized overnight courier delivery service (delivery charges
prepaid), or by telecopier:
(i) if to Boxall, addressed to:
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇▇-▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇▇▇▇▇
with copies to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(ii) if to ADTECH, addressed to:
Advanced Deposition Technologies, Inc.
Miles ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Mintz, Levin, Cohn, Ferris, Glovsky and ▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or such other address as shall be furnished in writing by any party to the
other. Any notice (i) sent by telecopier shall be deemed delivered when
received as verified by electronic confirmation, (ii) sent by overnight courier
shall be deemed delivered when received, (iii) sent by certified mail shall be
deemed delivered on the tenth day after it is sent and (iv) given personally
shall be deemed given when received; provided, however, that any notice received
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after 5:00 p.m. or on a day that it not a business day in the place of receipt
shall be deemed delivered at the opening of business on the next business day in
the place of receipt.
(g) Arbitration. Any claim, dispute disagreement or controversy that
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arises between the Parties that relates to the performance of either Party's
duties under this Agreement for the breach of any of the terms or conditions set
forth herein, that is not solved by amicable agreement shall be resolved
exclusively by arbitration initiated in accordance with the procedures
hereinafter set forth in this Section 5(g). All arbitrations pursuant to this
Section 5(g) shall be conducted in accordance with the rules then obtaining of
the American Arbitration Association by a single arbitrator appointed by the
Parties if they shall agree upon an arbitrator within thirty (30) days of the
commencement of such arbitration or by the American Arbitration Association if
they shall fail so to agree. Unless otherwise agreed by the Parties within
thirty (30) days of the initiation of such arbitration, all arbitration
proceedings shall be held in English in the city of Boston, Massachusetts. Each
Party agrees to comply with any award made or order issued in such proceeding
that has become final and to the entry of a judgment in any jurisdiction upon
any award rendered or order issued in such proceeding that has become final.
The decision of the arbitrator shall be tendered within forth-five (45) days of
the final submission of the Parties in writing or in a hearing before the
arbitrator. Each such arbitration award that has become final shall be
conclusive and binding upon the Parties and shall not be appealable. Attorney's
fees, costs and other out-of-pocket expenses may be awarded by the arbitrator in
his discretion to the Party that prevails in any such arbitration, provided,
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that if there is no prevailing Party, the arbitrator may award such fees, costs
and expenses in any manner the arbitrator sees fit. Each Party shall pay its
own expenses pending the awarding thereof to the Party that prevails in any such
arbitration.
(h) Severability. In the event any provision, or portion thereof, of this
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Agreement is held by a court having proper jurisdiction to be unenforceable in
any jurisdiction, then such portion or provision shall be deemed to be severable
as to such jurisdiction (but, to the extent permitted by law, not elsewhere) and
shall not affect the remainder of this Agreement, which shall continue in full
force and effect to the extent that the material purposes of this Agreement can
still be implemented. If any provision of this Agreement is held to be so broad
as to be unenforceable, such provision shall be interpreted to be only so broad
as is necessary for it to be enforceable.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered under seal as of the date first written above.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ADVANCED DEPOSITION
TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its Chief
Executive Officer, President and
Treasurer
they shall fail so to agree. Unless otherwise agreed by the Parties within
thirty (30) days of the initiation of such arbitration, all arbitration
proceedings shall be held in English in the city of Boston, Massachusetts. Each
Party agrees to comply with any award made or order issued in such proceeding
that has become final and to the entry of a judgment in any jurisdiction upon
any award rendered or order issued in such proceeding that has become final.
The decision of the arbitrator shall be tendered within forth-five (45) days of
the final submission of the Parties in writing or in a hearing before the
arbitrator. Each such arbitration award that has become final shall be
conclusive and binding upon the Parties and shall not be appealable. Attorney's
fees, costs and other out-of-pocket expenses may be awarded by the arbitrator in
his discretion to the Party that prevails in any such arbitration, provided,
that if there is no prevailing Party, the arbitrator may award such fees, costs
and expenses in any manner the arbitrator sees fit. Each Party shall pay its
own expenses pending the awarding thereof to the Party that prevails in any such
arbitration.
(h) Severability. In the event any provision, or portion thereof, of this
Agreement is held by a court having proper jurisdiction to be unenforceable in
any jurisdiction, then such portion or provision shall be deemed to be severable
as to such jurisdiction (but, to the extent permitted by law, not elsewhere) and
shall not affect the remainder of this Agreement, which shall continue in full
force and effect to the extent that the material purposes of this Agreement can
still be implemented. If any provision of this Agreement is held to be so broad
as to be unenforceable, such provision shall be interpreted to be only so broad
as is necessary for it to be enforceable.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered under seal as of the date first written above.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ADVANCED DEPOSITION
TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its Chief
Executive Officer, President
and Treasurer