Purchase Agreement, dated as of November 14, 2003



 EXHIBIT 10.28 
  
 PURCHASE AGREEMENT 
  
 THIS PURCHASE AGREEMENT (“Agreement”) is made as of the 14th day of November, 2003 by and among Adept Technology, Inc., a California corporation
(the “Company”), and the Investors set forth on the signature pages affixed hereto (each an “Investor” and collectively the “Investors”). 
  
 Recitals 
  
 A. The Company and the Investors are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the
provisions of Regulation D (“Regulation D”), as promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended; and 
  
 B. The Investors wish to purchase from the Company, and the Company wishes to
sell and issue to the Investors, upon the terms and conditions stated in this Agreement, (i) an aggregate of 8,888,900 shares of the Company’s Common Stock, no par value (the “Common Stock”), and (ii) warrants to purchase an aggregate
of 4,444,450 shares of Common Stock in the form attached hereto as Exhibit A (the “Warrants”); and 
  
 C. Contemporaneous with the sale of the Common Stock and Warrants, the parties hereto will execute and deliver a Registration Rights Agreement, in the
form attached hereto as Exhibit B (the “Registration Rights Agreement”), pursuant to which the Company will agree to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, and applicable state securities laws. 
  
 In consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 
  
 1. Definitions. In addition to those terms defined above and
elsewhere in this Agreement, for the purposes of this Agreement, the following terms shall have the meanings here set forth: 
  
 “Affiliate” means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries Controls,
is controlled by, or is under common control with, such Person. 
  
 “Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business. 
  
 “Common Stock” means the common stock, no par value, of the Company, and any securities into which the
Common Stock may be reclassified. 







 “Company’s Knowledge” means the actual knowledge of Robert Bucher, Michael Overby,
Brian Carlisle, and Bruce Shimano, after due inquiry; provided that the Company shall be deemed to have satisfied the foregoing requirement of the due inquiry by making appropriate inquiries such Persons. 
  
 “Confidential Information” means trade secrets, confidential
information and know-how (including but not limited to ideas, formulae, compositions, processes, procedures and techniques, research and development information, computer program code, performance specifications, support documentation, drawings,
specifications, designs, business and marketing plans, and customer and supplier lists and related information). 
  
 “Control” (including the terms “controlling”, “controlled by” or “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. 
  
 “Intellectual Property” means all of the following: (i)
patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice); (ii) trademarks, service marks, trade dress, trade names, corporate names, logos, slogans and Internet domain names,
together with all goodwill associated with each of the foregoing; (iii) copyrights and copyrightable works; (iv) registrations, applications and renewals for any of the foregoing; and (v) proprietary computer software (including but not limited to
data, data bases and documentation). 
  
 “Material Adverse
Effect” means a material adverse effect on (i) the assets, liabilities, results of operations, condition (financial or otherwise) or business of the Company and its Subsidiaries taken as a whole, other than changes which result from (i)
changes and conditions generally affecting the industries or segments in which the Company and its Subsidiaries operate which do not have a disproportionate effect on the Company and its Subsidiaries taken as a whole and (ii) changes in general
economic, market or political conditions which do not have a disproportionate effect on the Company and its Subsidiaries taken as a whole, or (iii) the ability of the Company to perform its obligations under the Transaction Documents. 
  
 “Person” means an individual, corporation, partnership,
limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein. 
  
 “Purchase Price” means Eight Million Ten Dollars
($8,000,010). 
  
 “SEC Filings” has the meaning
set forth in Section 4.6. 
  
 “Securities” means
the Shares, the Warrants and the Warrant Shares. 
  

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 “Shares” means the shares of Common Stock being purchased by the Investors hereunder.

  
 “Subsidiary” has the meaning set forth in
Section 4.1. 
  
 “Transaction Documents” means
this Agreement, the Warrants and the Registration Rights Agreement. 
  
 “Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants. 
  
 “1933 Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

  
 “1934 Act” means the Securities Exchange Act
of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder. 
  
 2. Purchase and Sale of the Shares and Warrants. Subject to the terms and conditions of this Agreement, on the Closing Date, each of the Investors
shall severally, and not jointly, purchase, and the Company shall sell and issue to the Investors, the Shares and Warrants in the respective amounts set forth opposite the Investors’ names on the signature pages attached hereto in exchange for
the Purchase Price as specified in Section 3 below. 
  
 3.
Closing. Upon confirmation that the other conditions to closing specified herein have been satisfied, the Company shall deliver to Lowenstein Sandler PC, in trust, a certificate or certificates, registered in the names of the Investors or
their nominees, representing the Shares and Warrants, with instructions that such certificates are to be held for release to the Investors only upon payment in full of the Purchase Price to the Company by all the Investors. Upon such receipt by
Lowenstein Sandler PC of the certificates, each Investor shall promptly, but no more than one Business Day thereafter, cause a wire transfer in same day funds to be sent to the account of the Company as instructed in writing by the Company, in an
amount representing such Investor’s pro rata portion of the Purchase Price as set forth on the signature pages to this Agreement. On the date (the “Closing Date”) the Company receives the Purchase Price, the certificates evidencing
the Shares and Warrants shall be released to the Investors (the “Closing”). The Closing of the purchase and sale of the Shares and Warrants shall take place at the offices of Lowenstein Sandler PC, 1330 Avenue of the Americas, 21st Floor,
New York, New York, or at such other location and on such other date as the Company and the Investors shall mutually agree. 
  
 4. Representations and Warranties of the Company. The Company hereby represents and warrants to the Investors that, except as set forth in the
schedules delivered herewith (collectively, the “Disclosure Schedules”): 
  
 4. 1 Organization, Good Standing and Qualification. Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and 

  

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authority to carry on its business as now conducted and to own its properties. Each of the Company and its Subsidiaries is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property makes such qualification or leasing necessary unless the failure to so qualify has not and could not
reasonably be expected to have a Material Adverse Effect. The Company’s subsidiaries are reflected on Schedule 4.1 hereto (the “Subsidiaries”). 
  
 4.2 Authorization. The Company has full power and authority and has taken all requisite action on the part of the
Company, its officers, directors and stockholders necessary for (i) the authorization, execution and delivery of the Transaction Documents, (ii) authorization of the performance of all obligations of the Company hereunder or thereunder, and (iii)
the authorization, issuance (or reservation for issuance) and delivery of the Securities. The Transaction Documents constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally. 
  
 4.3 Capitalization. Schedule 4.3 sets forth (a) the authorized capital stock of the Company on the date
hereof; (b) the number of shares of capital stock issued and outstanding; (c) the number of shares of capital stock issuable pursuant to the Company’s stock plans; and (d) the number of shares of capital stock issuable and reserved for issuance
pursuant to securities (other than the Shares and the Warrants) exercisable for, or convertible into or exchangeable for any shares of capital stock of the Company. All of the issued and outstanding shares of the Company’s capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights and were issued in full compliance with applicable state and federal securities law and any rights of third parties. Except as described on
Schedule 4.3, all of the issued and outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights, were issued in full compliance with
applicable state and federal securities law and any rights of third parties and are owned by the Company, beneficially and of record, subject to no lien, encumbrance or other adverse claim. Except as described on Schedule 4.3, no Person is
entitled to pre-emptive or similar statutory or contractual rights with respect to any securities of the Company. Except as described on Schedule 4.3, there are no outstanding warrants, options, convertible securities or other rights,
agreements or arrangements of any character under which the Company or any of its Subsidiaries is or may be obligated to issue any equity securities of any kind and except as contemplated by this Agreement, neither the Company nor any of its
Subsidiaries is currently in negotiations for the issuance of any equity securities of any kind. Except as described on Schedule 4.3 and except for the Registration Rights Agreement, there are no voting agreements, buy-sell agreements, option
or right of first purchase agreements or other agreements of any kind among the Company and any of the securityholders of the Company relating to the securities of the Company held by them. Except as described on Schedule 4.3, no Person has
the right to require the Company to register any securities of the Company under the 1933 Act, whether on a demand basis or in connection with the registration of securities of the Company for its own account or for the account of any other Person.

  

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 Except as described on Schedule 4.3, the issuance and sale of the Securities hereunder will not
obligate the Company to issue shares of Common Stock or other securities to any other Person (other than the Investors) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding security.

  
 Except as described on Schedule 4.3, the Company does
not have outstanding stockholder purchase rights or “poison pill” or any similar arrangement in effect giving any Person the right to purchase any equity interest in the Company upon the occurrence of certain events. 
  
 4.4 Valid Issuance. The Shares have been duly and validly authorized
and, when issued and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and shall be free and clear of all encumbrances and restrictions (other than encumbrances or restrictions imposed by creditors of the
Investors or in connection with any agreement or arrangement made by any Investor other than the Transactions Documents) (collectively, “Investor Encumbrances”), except for restrictions on transfer set forth in the Transaction Documents or
imposed by applicable securities laws. The Warrants have been duly and validly authorized. Upon the due exercise of the Warrants, the Warrant Shares will be validly issued, fully paid and non-assessable free and clear of all encumbrances and
restrictions, except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws and except for Investor Encumbrances. The Company has reserved a sufficient number of shares of Common Stock for
issuance upon the exercise of the Warrants, free and clear of all encumbrances and restrictions, except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws and except for Investor
Encumbrances. 
  
 4.5 Consents. The execution, delivery and
performance by the Company of the Transaction Documents and the offer, issuance and sale of the Securities require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official other than filings that
have been made pursuant to applicable state securities laws and post-sale filings pursuant to applicable state and federal securities laws which the Company undertakes to file within the applicable time periods. Assuming the accuracy of the
representations and warranties of each Investor set forth in Section 5 hereof, the Company has taken all action necessary to exempt (i) the issuance and sale of the Securities, (ii) the issuance of the Warrant Shares upon due exercise of the
Warrants, and (iii) the other transactions contemplated by the Transaction Documents from the provisions of any shareholder rights plan or other “poison pill” arrangement, any anti-takeover, business combination or control share law or
statute binding on the Company or to which the Company or any of its assets and properties may be subject and any provision of the Company’s Articles of Incorporation or By-laws that is or could reasonably be expected to become applicable to
the Investors as a result of the transactions contemplated hereby, including without limitation, the issuance of the Securities and the ownership, disposition or voting of the Securities by the Investors or the exercise of any right granted to the
Investors pursuant to this Agreement or the other Transaction Documents. 
  
 4.6 Delivery of SEC Filings; Business. Through the SEC’s EDGAR system, the Company has provided the Investors with copies of the Company’s most recent Annual 

  

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Report on Form 10-K for the fiscal year ended June 30, 2003 (as amended prior to the date hereof, the “10-K”), and all other reports filed by the
Company pursuant to the 1934 Act since the filing of the 10-K and prior to the date hereof (collectively, the “SEC Filings”). The SEC Filings are the only filings required of the Company pursuant to the 1934 Act for such period. The
Company and its Subsidiaries are engaged in all material respects only in the business described in the SEC Filings and the SEC Filings contain a complete and accurate description in all material respects of the business of the Company and its
Subsidiaries, taken as a whole. 
  
 4.7 Use of Proceeds.
The net proceeds of the sale of the Shares and the Warrants hereunder shall be used by the Company to repay certain indebtedness, to satisfy the obligations created as conditions precedent to the Closing and for working capital and general corporate
purposes. 
  
 4.8 No Material Adverse Change. Since
September 27, 2003, except as identified and described in the SEC Filings or as described on Schedule 4.8, there has not been: 
  
 (i) any change in the consolidated assets, liabilities, financial condition or operating results of the Company from that reflected in the financial
statements included in the Company’s Quarterly Report on Form 10-Q for the period ended September 27, 2003, except for changes in the ordinary course of business which have not and could not reasonably be expected to have a Material Adverse
Effect, individually or in the aggregate; 
  
 (ii) any
declaration or payment of any dividend, or any authorization or payment of any distribution, on any of the capital stock of the Company, or any redemption or repurchase of any securities of the Company; 
  
 (iii) any material damage, destruction or loss, whether or not covered by
insurance to any assets or properties of the Company or its Subsidiaries; 
  
 (iv) any waiver, not in the ordinary course of business, by the Company or any Subsidiary of a material right or of a material debt owed to it; 
  
 (v) any satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or a
Subsidiary, except in the ordinary course of business and which is not material to the assets, properties, financial condition, operating results or business of the Company and its Subsidiaries taken as a whole (as such business is presently
conducted and as it is proposed to be conducted); 
  
 (vi) any
change or amendment to the Company’s Articles of Incorporation or by-laws, or material change to any material contract or arrangement by which the Company or any Subsidiary is bound or to which any of their respective assets or properties is
subject; 
  
 (vii) any material labor difficulties or labor union
organizing activities with respect to employees of the Company or any Subsidiary; 
  

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 (viii) any transaction entered into by the Company or a Subsidiary other than in the ordinary course of
business; 
  
 (ix) the loss of the services of any key employee,
or material change in the composition or duties of the senior management of the Company or any Subsidiary; 
  
 (x) the loss or threatened loss of any customer which has had or could reasonably be expected to have a Material Adverse Effect; or 
  
 (xi) any other event or condition of any character that has had or could
reasonably be expected to have a Material Adverse Effect. 
  
 4.9
SEC Filings. 
  
 (a) At the time of filing thereof, the
SEC Filings complied as to form in all material respects with the requirements of the 1934 Act and did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not misleading. 
  
 (b) Each registration statement and any amendment thereto filed by the Company since January 1, 2002 pursuant to the 1933 Act and the rules and regulations thereunder, as of the date such statement or amendment became
effective, complied as to form in all material respects with the 1933 Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not misleading; and each prospectus filed pursuant to Rule 424(b) under the 1933 Act, as of its issue date and as of the closing of any sale of securities pursuant thereto did not
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

  
 4.10 No Conflict, Breach, Violation or Default. Except
as described in Schedule 4.10, the execution, delivery and performance of the Transaction Documents by the Company and the issuance and sale of the Securities will not conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under (i) the Company’s Articles of Incorporation or the Company’s Bylaws, both as in effect on the date hereof (copies of which have been provided to the Investors before the date hereof), or (ii)(a)
assuming the accuracy of each Investor’s representations and warranties as set forth in Section 5 hereof, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the
Company, any Subsidiary or any of their respective assets or properties, or (b) any agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or a Subsidiary is bound or to which any of their respective assets
or properties is subject, except, in the case of clause (b) only, for such conflicts, breaches, violations or defaults which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 
  

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 4.11 Tax Matters. The Company and each Subsidiary has timely prepared and filed or, if on
extension, will cause to be filed prior to the end of such extension, all material tax returns required to have been filed by the Company or such Subsidiary with all appropriate governmental agencies and timely paid all taxes shown thereon or
otherwise owed by it. The charges, accruals and reserves on the books of the Company in respect of taxes for all fiscal periods are adequate in all material respects, and there are no material unpaid assessments against the Company or any Subsidiary
nor, to the Company’s Knowledge, any basis for the assessment of any additional taxes, penalties or interest for any fiscal period or audits by any federal, state or local taxing authority except for any assessment which is not material to the
Company and its Subsidiaries, taken as a whole. All material taxes and other assessments and levies that the Company or any Subsidiary is required to withhold or to collect for payment have been duly withheld and collected and paid to the proper
governmental entity or third party when due. There are no tax liens or claims pending or, to the Company’s Knowledge, threatened against the Company or any Subsidiary or any of their respective assets or property, except for such claims which,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Except as described on Schedule 4.11, there are no outstanding tax sharing agreements or other such arrangements between the Company and any
Subsidiary or other corporation or entity. 
  
 4.12 Title to
Properties. Except as disclosed in the SEC Filings and except for the liens described on Schedule 4.12, the Company and each Subsidiary has good and marketable title to all real properties and all other properties and assets owned by it,
in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or currently planned to be made thereof by them; and except as disclosed in the SEC Filings or in
Schedule 4.12, the Company and each Subsidiary holds any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or currently planned to be made thereof by them.

  
 4.13 Certificates, Authorities and Permits. The Company
and each Subsidiary possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it, and neither the Company nor any Subsidiary has received any written
notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or such Subsidiary, could reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate. 
  
 4.14 No Labor
Disputes. No material labor dispute with the employees of the Company or any Subsidiary exists or, to the Company’s Knowledge, is imminent. 
  
 4.15 Intellectual Property. Except as set forth in the SEC Filings or as described on Schedule 4.15, 
  
 (a) No Intellectual Property of the Company or its Subsidiaries which is
necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted and the absence of which could 

  

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reasonably be expected to result in a Material Adverse Effect has been or is now involved in any cancellation, dispute or litigation, and, to the
Company’s Knowledge, no such action is threatened. No patent of the Company or its Subsidiaries has been or is now involved in any interference, reissue, re-examination or opposition proceeding. 
  
 (b) All of the licenses and sublicenses and consent, royalty or other
agreements concerning Intellectual Property which are necessary for the conduct of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted to which the Company or
any Subsidiary is a party or by which any of their assets are bound (other than generally commercially available, non-custom, off-the-shelf software application programs having a retail acquisition price of less than $10,000 per license)
(collectively, “License Agreements”) are valid and binding obligations of the Company or its Subsidiaries that are parties thereto and, to the Company’s Knowledge, the other parties thereto, enforceable in accordance with their terms,
except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally, and to the Company’s
Knowledge, there exists no event or condition which will result in a material violation or breach of or constitute (with or without due notice or lapse of time or both) a default by the Company or any of its Subsidiaries under any such License
Agreement. 
  
 (c) The Company and its Subsidiaries own or have
the valid right to use all of the Intellectual Property that is necessary for the conduct of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted and for the
ownership, maintenance and operation of the Company’s and its Subsidiaries’ properties and assets, free and clear of all liens, encumbrances, adverse claims or obligations to license all such owned Intellectual Property and Confidential
Information, other than licenses entered into in the ordinary course of the Company’s and its Subsidiaries’ businesses and other than where the failure to have such right could not reasonably be expected to result in a Material Adverse
Effect, individually or in the aggregate. The Company and its Subsidiaries have a valid and enforceable right to use all third party Intellectual Property and Confidential Information used or held for use in the respective businesses of the Company
and its Subsidiaries except where the failure to have such rights could not reasonably be expected to result in a Material Adverse Effect, individually or in the aggregate. 
  
 (d) To the Company’s Knowledge, the conduct of the Company’s and its Subsidiaries’ businesses as currently
conducted does not infringe or otherwise impair or conflict with (collectively, “Infringe”) any Intellectual Property rights of any third party or any confidentiality obligation owed to a third party, and, to the Company’s Knowledge,
the Intellectual Property and Confidential Information of the Company and its Subsidiaries which are necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed
to be conducted are not being Infringed by any third party. Except as disclosed in the SEC Filings, there is no litigation or order pending or outstanding or, to the Company’s Knowledge, threatened or imminent, that seeks to limit or challenge
or that concerns the ownership, use, validity or enforceability of any Intellectual Property or Confidential Information of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ use of any Intellectual Property or
Confidential Information owned by a third party, and, to the Company’s Knowledge, there is no valid basis for the same. 
  

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 (e) The consummation of the transactions contemplated hereby will not result in the alteration, loss,
impairment of or restriction on the Company’s or any of its Subsidiaries’ ownership or right to use any of the Intellectual Property or Confidential Information which is necessary for the conduct of Company’s and each of its
Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted. 
  
 (f) The Company and its Subsidiaries have, in their good faith business judgment, taken reasonable steps to protect the Company’s and its
Subsidiaries’ rights in their Intellectual Property and Confidential Information. Each employee, consultant and contractor who has had access to Confidential Information which is necessary for the conduct of Company’s and each of its
Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted has executed an agreement to maintain the confidentiality of such Confidential Information and has executed appropriate agreements that are
substantially consistent with the Company’s standard forms thereof. Except under confidentiality obligations, there has been no material disclosure of any of the Company’s or its Subsidiaries’ Confidential Information to any third
party. 
  
 4.16 Environmental Matters. Neither the Company
nor any Subsidiary is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), owns or operates any real property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, and is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim has had or could reasonably be expected
to have a Material Adverse Effect, individually or in the aggregate; and there is no pending or, to the Company’s Knowledge, threatened investigation that might lead to such a claim. 
  
 4.17 Litigation. Except as disclosed in the SEC Filings or as described on Schedule 4.17, there are no pending
actions, suits or proceedings against or affecting the Company, its Subsidiaries or any of its or their properties; and to the Company’s Knowledge, no such actions, suits or proceedings are threatened or contemplated. 
  
 4.18 Financial Statements. The financial statements included in each
SEC Filing present fairly, in all material respects, the consolidated financial position of the Company as of the dates shown and its consolidated results of operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with United States generally accepted accounting principles applied on a consistent basis (except as may be disclosed therein or in the notes thereto, and, in the case of quarterly financial statements, as permitted by Form
10-Q under the 1934 Act). 
  

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 4.19 Insurance Coverage. Schedule 4.19 describes the insurance coverage currently
maintained by the Company. 
  
 4.20 Brokers and Finders. No
Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant to any agreement,
arrangement or understanding entered into by or on behalf of the Company, other than as described in Schedule 4.20. 
  
 4.21 No Directed Selling Efforts or General Solicitation. Neither the Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D) in connection with the offer or sale of any of the Securities. 
  
 4.22 No Integrated Offering. Neither the Company nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by the Company on Section 4(2) for the exemption from registration for the
transactions contemplated hereby or would require registration of the Securities under the 1933 Act. 
  
 4.23 Private Placement. Assuming the accuracy of each Investor’s representations and warranties set forth in Section 5 hereof, the offer and
sale of the Securities to the Investors as contemplated hereby is exempt from the registration requirements of the 1933 Act. 
  
 4.24 Questionable Payments. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any of their respective current
or former stockholders, directors, officers, employees, agents or other Persons acting on behalf of the Company or any Subsidiary, has on behalf of the Company or any Subsidiary or in connection with their respective businesses: (a) used any
corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (b) made any direct or indirect unlawful payments to any governmental officials or employees from corporate funds; (c)
established or maintained any unlawful or unrecorded fund of corporate monies or other assets; (d) made any false or fictitious entries on the books and records of the Company or any Subsidiary; or (e) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment of any nature. 
  
 4.25 Transactions with Affiliates. Except as disclosed in SEC Filings made on or prior to the date hereof or as disclosed on Schedule 4.25, none of the officers or directors of the Company and, to the Knowledge of the Company,
none of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than as holders of stock options and/or warrants, and for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of
the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner. 
  

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 4.26 Internal Controls. The Company and the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in 1934 Act Rules 13a-14 and 15d-14)
for the Company and designed such disclosure controls and procedures to ensure that material information relating to the Company, including the Subsidiaries, is made known to the certifying officers by others within those entities, particularly
during the period in which the Company’s most recently filed period report under the 1934 Act, as the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and
procedures as of a date within 90 days prior to the filing date of the most recently filed periodic report under the 1934 Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the
1934 Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no significant changes in the
Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K) or, to the Company’s Knowledge, in other factors that could significantly affect the Company’s internal controls. The Company maintains and will
continue to maintain a standard system of accounting established and administered in accordance with GAAP and the applicable requirements of the 1934 Act. 
  
 4.28 Disclosures. Except for certain disclosures made to Robert Majteles, neither the Company nor any Person acting on its behalf has provided the
Investors or their agents or counsel with any information that constitutes or might constitute material, non-public information. The written materials delivered to the Investors in connection with the transactions contemplated by the Transaction
Documents do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. 
  
 5. Representations and Warranties of the Investors. Each of the
Investors hereby severally, and not jointly, represents and warrants to the Company that: 
  
 5.1 Organization and Existence. The Investor is a validly existing corporation, limited partnership or limited liability company and has all requisite corporate, partnership or limited liability company power
and authority to invest in the Securities pursuant to this Agreement. The Investor is controlled by one or more U.S. citizens and is not owned or controlled, directly or indirectly, by a person or entity listed on the List of Specially Designated
Nationals and Block Persons administered by the U.S. Department of Treasury Office of Foreign Assts Control. 
  

 -12- 








 5.2 Authorization. The execution, delivery and performance by the Investor of the Transaction
Documents to which such Investor is a party have been duly authorized and will each constitute the valid and legally binding obligation of the Investor, enforceable against the Investor in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally. 
  
 5.3 Purchase Entirely for Own Account. The Securities to be received by the Investor hereunder will be acquired for
the Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of applicable securities laws, and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same in violation of applicable securities laws. The Investor is not a registered broker dealer or an entity engaged in the business of being a broker dealer. 
  
 5.4 Investment Experience. The Investor acknowledges that it can bear
the economic risk and complete loss of its investment in the Securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby. 

 
 5.5 Disclosure of Information. The Investor has had an opportunity
to receive all additional information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Securities. The
Investor acknowledges receipt of copies of the SEC Filings. Neither such inquiries nor any other due diligence investigation conducted by the Investor shall modify, amend or affect the Investor’s right to rely on the Company’s
representations and warranties contained in this Agreement. 
  
 5.6 Restricted Securities. The Investor understands that the Securities are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances. 
  
 5.7 Legends. It is understood that, except as provided below,
certificates evidencing such Securities may bear the following or any similar legend: 
  
 (a) “The securities represented hereby may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant
to Rule 144(k), or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933 or qualification under applicable state securities
laws.” 
  

 -13- 








 (b) If required by the authorities of any state in connection with the issuance of sale of the
Securities, the legend required by such state authority. 
  
 Upon
the earlier of (i) registration for resale pursuant to the Registration Rights Agreement and receipt by the Company of the Investor’s written confirmation that such Securities will not be disposed of except in compliance with the prospectus
delivery requirements of the 1933 Act or (ii) Rule 144(k) becoming available the Company shall, upon an Investor’s written request, promptly cause certificates evidencing the Securities to be replaced with certificates which do not bear such
restrictive legends, and Warrant Shares subsequently issued upon due exercise of the Warrants shall not bear such restrictive legends provided the provisions of either clause (i) or clause (ii) above, as applicable, are satisfied with respect to
such Warrant Shares. When the Company is required to cause unlegended certificates to replace previously issued legended certificates, if unlegended certificates are not delivered to an Investor within five (5) Business Days of submission by that
Investor of legended certificate(s) to the Company’s transfer agent together with a representation letter in customary form, the Company shall be liable to the Investor for liquid damages in an amount equal to 1% of the aggregate purchase price
of the Securities evidenced by such certificate(s) for each thirty (30) day period (or portion thereof) beyond such five (5) Business Day that the unlegended certificates have not been so delivered. 
  
 5.8 Accredited Investor. The Investor is an accredited investor as
defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act. 
  
 5.9 No General Solicitation. The Investor did not learn of the investment in the Securities as a result of any public advertising or general solicitation. 
  
 5.10 Brokers and Finders. No Person will have, as a result of the transactions contemplated by this Agreement, any
valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Investors.

  
 5.11 Prohibited Transactions. During the last thirty
(30) days prior to the date hereof, no Investor has, directly or indirectly, effected or agreed to effect any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the 1934
Act) with respect to the Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any significant part of its
value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the earlier of (i) the termination of this Agreement, or (ii) the Closing Date, no Investor shall engage,
directly or indirectly, in a Prohibited Transaction. Each Investor acknowledges that the representations and warranties contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other
Investors shall have an independent the right to assert any claims against any Investor arising out of any breach or violation of the provisions of this Section 5.11. 
  

 -14- 








 6. Conditions to Closing. 
  
 6.1 Conditions to the Investors’ Obligations. The obligation of the Investors to purchase the Securities at the
Closing is subject to the fulfillment to the Investors’ satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by the Investors agreeing hereunder to purchase a majority of the Shares and Warrants
(the “Required Investors”): 
  
 (a) The
representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as
of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and
correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct
in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date. 
  
 (b) The Company shall have obtained any and all consents, permits,
approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Securities all of which shall be in full force and effect. 
  
 (c) The Company shall have executed and delivered the Registration Rights Agreement. 
  
 (d) [intentionally omitted] 
  
 (e) The Investors shall have received evidence reasonably satisfactory to
them that simultaneously with the Closing JDS Uniphase Corporation shall have converted the shares of Preferred Stock, Series A and Series B, into shares of Common Stock constituting not more than 20% of the outstanding Common Stock (calculated on a
primary basis immediately prior to such conversion and the issuance of the Securities contemplated hereby). 
  
 (f) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge,
or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby or in
the other Transaction Documents. 
  
 (g) The Company shall have
delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to the fulfilment of the conditions specified in subsections (a), (b), (f) and (j) of
this Section 6.1. 
  

 -15- 








 (h) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary,
dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, certifying
the current versions of the Articles of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company. 
  
 (i) The Investors shall have received an opinion from the Company’s
counsel, dated as of the Closing Date, in the form previously provided by the Investors. 
  
 (j) No stop order or suspension of trading shall have been imposed by the SEC or any other governmental regulatory body with respect to public trading in the Common Stock. 
  
 6.2 Conditions to Obligations of the Company. The Company’s
obligation to sell and issue the Securities at the Closing is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any of which may be waived by the Company: 
  
 (a) The representations and warranties made by the Investors in Section 5
hereof, other than the representations and warranties contained in Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 (the “Investment Representations”), shall be true and correct in all material respects when made, and shall be true and
correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investment Representations shall be true and correct in all respects when made, and shall be true and correct in
all respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investors shall have performed in all material respects all obligations and conditions herein required to be performed or observed
by them on or prior to the Closing Date. 
  
 (b) The Investors
shall have executed and delivered the Registration Rights Agreement. 
  
 (c) The Investors shall have delivered the Purchase Price to the Company. 
  
 (d) The Investors shall be purchasing Shares and Warrants for at least Eight Million Dollars ($8,000,000). 
  
 6.3 Termination of Obligations to Effect Closing; Effects. 
  
 (a) The obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall
terminate as follows: 
  

 -16- 








 (i) Upon the mutual written consent of the Company and the Required Investors; 
  
 (ii) By the Company if any of the conditions set forth in Section 6.2 shall
have become incapable of fulfillment, and shall not have been waived by the Company; 
  
 (iii) By the Required Investors if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived by the Required Investors; or 
  
 (iv) By either the Company or the Required Investors if the Closing has not
occurred on or prior to November 21, 2003; 
  
 provided, however, that, except in
the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction
Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing. 
  
 (b) In the event of termination by the Company or the Required Investors of their obligations to effect the Closing pursuant to this Section 6.3, written
notice thereof shall forthwith be given to the other parties hereto and the obligation of all parties to effect the Closing shall be terminated, without further action by any party. Nothing in this Section 6.3 shall be deemed to release any party
from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations under this
Agreement or the other Transaction Documents. 
  
 7. Covenants
and Agreements of the Company. 
  
 7.1 Reservation of
Common Stock. From and after the Closing Date, the Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of providing for the exercise of the Warrants, such number
of shares of Common Stock as shall from time to time equal the number of shares sufficient to permit the exercise of the Warrants issued pursuant to this Agreement in accordance with their respective terms. 
  
 7.2 Reports. The Company will furnish to such Investors and/or their
assignees such information relating to the Company and its Subsidiaries as from time to time may reasonably be requested by such Investors and/or their assignees; provided, however, that the Company shall not disclose material nonpublic information
to the Investors, or to advisors to or representatives of the Investors, unless prior to disclosure of such information the Company identifies such information as being material nonpublic information and provides the Investors, such advisors and
representatives with the opportunity to accept or refuse to accept such material nonpublic information for review and any Investor wishing to obtain such information enters into an appropriate confidentiality agreement with the Company with respect
thereto. 
  

 -17- 








 7.3 No Conflicting Agreements. The Company will not take any action, enter into any agreement or
make any commitment that would conflict or interfere in any material respect with the obligations to the Investors under the Transaction Documents. 
  
 7.4 Insurance. The Company shall not materially reduce the insurance coverages described in Section 4.19. 
  
 7.5 Compliance with Laws. The Company will comply in all material
respects with all applicable laws, rules, regulations, orders and decrees of all governmental authorities with respect to the conduct of its business and the ownership of its properties. 
  
 7.6 Listing of Underlying Shares. If the Company applies to have its Common Stock or other securities traded on any
other principal stock exchange or market, it shall include in such application the Shares and the Warrant Shares and will take such other action as is necessary to cause such Common Stock to be so listed. 
  
 7.7 Termination of Covenants. The provisions of Sections 7.2 through
7.5 shall terminate and be of no further force and effect upon the earlier of (i) the mutual consent of the Company and the Required Investors or (ii) the date on which the Company’s obligations under the Registration Rights Agreement to
register or maintain the effectiveness of any registration covering the Registrable Securities (as such term is defined in the Registration Rights Agreement) shall terminate. 
  
 7.8 Director Designees. So long as the Investors collectively are the beneficial owners of at least 5% of the
outstanding Common Stock (determined in accordance with Rule 13d-3 under the 1934 Act), the Investors shall collectively have the right to designate one person for election to the board of directors of the Company (the “Investor
Designee”). Each of the Investors acknowledges that so long as Special Situations Fund III, L.P. (“SSF”) and/or one of its Affiliates hold any of the Securities, SSF shall have the right to appoint the Investor Designee. The Company
shall use its commercially reasonable efforts to cause the Investor Designee to be elected to the Company’s board of directors. SSF and/or the Investors shall have the right to remove or replace any Investor Designee by giving notice to such
Investor Designee and the Company. The Company shall use its commercially reasonable efforts to effect the removal or replacement of any such Investor Designee. 
  

7.9 Other Investment. Promptly following the execution and delivery of this Agreement, the Company shall use its commercially reasonable efforts
to consummate as promptly as practicable and in no event more than five Business Days after the Closing the private placement of shares of its Common Stock and warrants to purchase shares of its Common Stock (the “Other Securities”) to one
or more accredited investors (the “Other Investors”) for aggregate gross proceeds of at least $2,000,000 (the “Other Investment”). The terms and conditions of the Other Investment (including, but not limited to, the terms of the
Other Securities) shall be substantially the same as those set forth in the Transaction Documents but in any event no more favorable to the Other Investors than the terms and conditions of the Transaction Documents. 
  

 -18- 








 8. Survival and Indemnification. 
  
 8.1 Survival. All representations, warranties, covenants and agreements contained in this Agreement shall be deemed
to be representations, warranties, covenants and agreements as of the date hereof and shall survive the execution and delivery of this Agreement for a period of eighteen months from the date of this Agreement; provided, however, that the provisions
contained in Section 7 hereof shall survive in accordance therewith. 
  
 8.2 Indemnification. The Company agrees to indemnify and hold harmless, on an after-tax and after insurance recovery basis, each Investor and its Affiliates and their respective directors, officers, employees and agents from and
against any and all losses, claims, damages, liabilities and expenses (including without limitation reasonable attorney fees and disbursements and other expenses incurred in connection with investigating, preparing or defending any action, claim or
proceeding, pending or threatened and the costs of enforcement hereof) (collectively, “Losses”) to which such Person may become subject as a result of any breach of representation, warranty, covenant or agreement made by or to be performed
on the part of the Company under the Transaction Documents, and will reimburse any such Person for all such amounts as they are incurred by such Person. 
  
 8.3 Conduct of Indemnification Proceedings. Promptly after receipt by any Person (the “Indemnified Person”) of notice of any
demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to Section 8.2, such Indemnified Person shall promptly
notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses; provided,
however, that the failure of any Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is materially prejudiced by such failure to notify. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person shall have mutually
agreed to the retention of such counsel; or (ii) in the reasonable judgment of counsel to such Indemnified Person representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.
The Company shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent, or if there be a final judgment for the plaintiff, the
Company shall indemnify and hold harmless such Indemnified Person from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Without the prior written consent of the Indemnified Person, which
consent shall not be unreasonably withheld, the Company shall not effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder
by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Person from all liability arising out of such proceeding. 
  

 -19- 








 9. Miscellaneous. 
  
 9.1 Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of
the Company or the Required Investors, as applicable, provided, however, that an Investor may assign its rights and delegate its duties hereunder in whole or in part to an Affiliate or to a third party acquiring some or all of its Securities in a
private transaction in compliance with applicable law without the prior written consent of the Company or the other Investors, after notice duly given by such Investor to the Company and the other Investors, provided, that no such assignment or
obligation shall affect the obligations of such Investor hereunder. The provisions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this
Agreement. 
  
 9.2 Counterparts; Faxes. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed via facsimile, which shall be deemed an original.

  
 9.3 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 
  
 9.4 Notices. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery, then such notice shall be deemed given upon such delivery, (ii) if given by telex or telecopier, then such notice shall be deemed given upon receipt of confirmation of
complete transmittal, (iii) if given by mail, then such notice shall be deemed given upon the earlier of (A) receipt of such notice by the recipient or (B) three days after such notice is deposited in first class mail, postage prepaid, and (iv) if
given by an internationally recognized overnight air courier, then such notice shall be deemed given one day after delivery to such carrier. All notices shall be addressed to the party to be notified at the address as follows, or at such other
address as such party may designate by ten days’ advance written notice to the other party: 
  
 If to the Company: 
  
 Adept Technology, Inc. 
 3011 Triad Drive

 Livermore, California 94550 
 Attention: Michael W. Overby 
 Fax: (925) 245-3510 
  

 -20- 








 With a copy to: 
  
 Gibson, Dunn & Crutcher LLP 
 One Montgomery Street, Montgomery Tower 
 San Francisco, California 94104 
 Attention: Lawrence Calof, Esq. and Lisa A. Fontenot, Esq. 
 Fax: (415) 374-8419 
  
 If to the
Investors: 
  
 to the addresses of the principal executive offices of such
Investors set forth on the signature pages hereto. 
  
 9.5
Expenses. The parties hereto shall pay their own costs and expenses in connection herewith, except that the Company shall pay the reasonable fees and expenses of counsel to the Investors, not to exceed an aggregate amount of $30,000. Such
expenses shall be paid not later than the Closing. In the event that legal proceedings are commenced by any party to this Agreement against another party to this Agreement in connection with this Agreement or the other Transaction Documents, the
party or parties which do not prevail in such proceedings shall severally, but not jointly, pay their pro rata share of the reasonable attorneys’ fees and other reasonable out-of-pocket costs and expenses incurred by the prevailing party in
such proceedings. 
  
 9.6 Amendments and Waivers. Any term
of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Required
Investors. Any amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of any Securities purchased under this Agreement at the time outstanding, each future holder of all such securities, and the Company.

  
 9.7 Publicity. No public release or announcement
concerning the transactions contemplated hereby shall be issued by the Company or the Investors without the prior consent of the Company (in the case of a release or announcement by the Investors) or SSF (in the case of a release or announcement by
the Company) (which consents shall not be unreasonably withheld), except as such release or announcement may be required by law or the applicable rules or regulations of any securities exchange or securities market, in which case the Company or the
Investors, as the case may be, shall allow SSF or the Company, as applicable, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or announcement in advance of such issuance. 
  
 9.8 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not 

  

 -21- 








 
invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any
provision of law which renders any provision hereof prohibited or unenforceable in any respect. 
  
 9.9 Entire Agreement. This Agreement, including the Exhibits and the Disclosure Schedules, and the other Transaction Documents constitute the
entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof.

  
 9.10 Further Assurances. The parties shall execute and
deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained. 
  
 9.11 Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of New York without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State
of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the
parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. 
  
 [signature page follows] 
  

 -22- 








 IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to
execute this Agreement as of the date first above written. 
  

									
	 The Company:
	 	 	 	 ADEPT TECHNOLOGY, INC.

					
	 	 	 	 	 	 	 By:
	  	 /s/ Michael W. Overby


	 	 	 	 	 	 	 Name:
	  	 Michael W. Overby

	 	 	 	 	 	 	 Title:
	  	 Vice President Finance and Chief Financial Officer


  

 -23- 









									
	 The Investors:
	 	 	 	 SPECIAL SITUATIONS FUND III, L.P.

					
	 	 	 	 	 	 	 By:
	  	 /s/ Steven Becker


	 	 	 	 	 	 	 Name:
	  	 Steven Becker

	 	 	 	 	 	 	 Title:
	  	 Managing Director


  
 Aggregate Purchase Price: $3,000,060 
 Number of Shares: 3,333,400 
 Number of Warrants: 1,666,700 
  
 Address for Notice: 
  

	
	 153 E. 53rd Street

	 55th
Floor

	 New York, NY 10022

	
	 with a copy to:

	
	 Lowenstein Sandler PC

	 65 Livingston Avenue

	 Roseland, NJ 07068

	 Attn: John D. Hogoboom, Esq.

	 Telephone:    973.597.2500

	 Facsimile:     973.597.2400



  

									
	 	 	 	 	 SPECIAL SITUATIONS CAYMAN FUND, L.P.

					
	 	 	 	 	 	 	 By:
	  	 /s/ Steven Becker


	 	 	 	 	 	 	 Name:
	  	 Steven Becker

	 	 	 	 	 	 	 Title:
	  	 Managing Director


  
 Aggregate Purchase Price: $999,990 
 Number of Shares: 1,111,100 
 Number of Warrants: 555,550 
  
 Address for Notice: 
  

	
	 153 E. 53rd Street

	 55th
Floor

	 New York, NY 10022



  

 -24- 









	
	 with a copy to:

	
	 Lowenstein Sandler PC

	 65 Livingston Avenue

	 Roseland, NJ 07068

	 Attn: John D. Hogoboom, Esq.

	 Telephone:     973.597.2500

	 Facsimile:       973.597.2400



  

									
	 	 	 	 	 SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.

					
	 	 	 	 	 	 	 By:
	  	 /s/ Steven Becker


	 	 	 	 	 	 	 Name:
	  	 Steven Becker

	 	 	 	 	 	 	 Title:
	  	 Managing Director


  
 Aggregate Purchase Price: $1,999,980 
 Number of Shares: 2,222,200 
 Number of Warrants: 1,111,100 
  


	
	 153 E. 53rd Street

	 55th
Floor

	 New York, NY 10022

	
	 with a copy to:

	
	 Lowenstein Sandler PC

	 65 Livingston Avenue

	 Roseland, NJ 07068

	 Attn: John D. Hogoboom, Esq.

	 Telephone:    973.597.2500

	 Facsimile:      973.597.2400



  

									
	 	 	 	 	 SPECIAL SITUATIONS TECHNOLOGY FUND, L.P.

					
	 	 	 	 	 	 	 By:
	  	 /s/ Steven Becker


	 	 	 	 	 	 	 Name:
	  	 Steven Becker

	 	 	 	 	 	 	 Title:
	  	 Managing Director


  
 Aggregate Purchase Price: $330,030 
 Number of Shares: 366,700 
  

 -25- 








 Number of Warrants: 183,350 
  
 Address for Notice: 
  

	
	 153 E. 53rd Street

	 55th
Floor

	 New York, NY 10022

	
	 with a copy to:

	
	 Lowenstein Sandler PC

	 65 Livingston Avenue

	 Roseland, NJ 07068

	 Attn: John D. Hogoboom, Esq.

	 Telephone:    973.597.2500

	 Facsimile:      973.597.2400



  

									
	 	 	 	 	 SPECIAL SITUATIONS TECHNOLOGY FUND II, L.P.

					
	 	 	 	 	 	 	 By:
	  	 /s/ Steven Becker


	 	 	 	 	 	 	 Name:
	  	 Steven Becker

	 	 	 	 	 	 	 Title:
	  	 Managing Director


  
 Aggregate Purchase Price: $1,669,950 
 Number of Shares: 1,855,500 
 Number of Warrants: 927,750 
  
 Address for Notice: 
  

	
	 153 E. 53rd Street

	 55th
Floor

	 New York, NY 10022

	
	 with a copy to:

	
	 Lowenstein Sandler PC

	 65 Livingston Avenue

	 Roseland, NJ 07068

	 Attn: John D. Hogoboom, Esq.

	 Telephone:    973.597.2500

	 Facsimile:      973.597.2400



  

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