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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
ADVANCED DEPOSITION TECHNOLOGIES, INC.
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(Name of Issuer)
Common Stock, $.01 par value per share
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(Title of Class of Securities)
007521107
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(CUSIP Number)
Alexander Peter Boxall
c/o Advanced Deposition Technologies, Inc.
580 Myles Standish Blvd.
Myles Standish Industrial Park
Taunton, Massachusetts 02780
(508) 823-0707
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
September 24, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
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=======================
CUSIP NO. 007521107
=======================
================================================================================
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alexander Peter Boxall
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (a) [_]
(b) [X]
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SEC USE ONLY
3
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SOURCE OF FUNDS
4
00
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) or 2(e) [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
United Kingdom
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SOLE VOTING POWER: 923,348
7
NUMBER OF
SHARES -----------------------------------------------------------
SHARED VOTING POWER: None
BENEFICIALLY 8
OWNED BY
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EACH SOLE DISPOSITIVE POWER: 923,348
9
REPORTING
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER: None
WITH 10
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
923,348. This consists of 280,000 shares of common stock held directly
by the reporting person and 643,348 shares of common stock held by DNA
Export, S.L., an entity owned and controlled by the reporting person.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 [_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
18.9%
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TYPE OF REPORTING PERSON
14
IN
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Item 1. Security and Issuer
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This statement on Schedule 13D relates to the common stock, $.01 par value per
share (the "Common Stock"), of Advanced Deposition Technologies, Inc., a
Delaware corporation ("ADT"), the principal executive offices of which are
located at 580 Myles Standish Blvd., Myles Standish Industrial Park, Taunton,
Massachusetts 02780.
Item 2. Identity and Background
-----------------------
Alexander Peter Boxall's business address is c/o Advanced Deposition
Technologies, Inc., 580 Myles Standish Blvd., Myles Standish Industrial Park,
Taunton, Massachusetts 02780. Mr. Boxall is the President and a director of ADT.
Mr. Boxall has not, during the last five years, been convicted in any criminal
proceeding (excluding traffic violations or similar misdemeanors) nor has he
been a party to any civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he was or is subject to any
judgment, decree or final order enjoining further violations of, or prohibiting
or mandating activities subject to federal or state securities laws or finding
any violations with respect to such laws. Mr. Boxall is a citizen of the United
Kingdom.
Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
In March 1999, ADT entered into an Exchange Agreement (the "Exchange
Agreement") with DNA Export, S.A., a corporation organized under the laws of
Spain and owned and controlled by the reporting person, to purchase certain
shares of capital stock of DNA-ADTECH, a majority-owned subsidiary of ADT, that
were held by DNA Export, S.A. As consideration for the shares, ADT agreed to
issue 598,198 shares of ADT common stock to DNA Export, S.A. This transaction
was conditioned upon ADT obtaining the approval of ADT's stockholders.
Stockholder approval was obtained on August 11, 1999 and the transactions
contemplated by the Exchange Agreement were consummated on September 24, 1999.
Mr. Boxall is the President and a director of ADT.
Item 4. Purpose of Transaction
----------------------
The shares, the ownership of which is reported hereby, were acquired by Mr.
Boxall for investment purposes. Mr. Boxall reserves the right from time to time
to acquire additional shares, or to dispose of some or all of his shares.
Except as set forth above, Mr. Boxall does not have any plan or proposal which
relates to, or would result in, any of the matters referred to in paragraphs (a)
through (j) of Item 4 of the General Instructions for Schedule 13D.
Item 5. Interest in Securities of the Issuer
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(a) Based upon the outstanding number of shares set forth in ADT's Form
10-QSB for the fiscal quarter ended June 30, 1999, as well as the additional
598,198 shares of common
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stock issued pursuant to the above Exchange Agreement, Mr. Boxall's beneficial
ownership of 923,348 shares of common stock constitutes beneficial ownership of
18.9% of the total number of shares of outstanding Common Stock.
(b) Mr. Boxall has the sole power to vote or to direct the vote of, and
sole power to dispose or direct the disposition of, 923,348 shares of Common
Stock.
(c) During the past sixty days, Mr. Boxall has not effected any
transactions in shares of common stock except pursuant to the Exchange
Agreement.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
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Respect to Securities of the Issuer
-----------------------------------
In March 1999, ADT entered into the Exchange Agreement with DNA Export,
S.A., a corporation organized under the laws of Spain and owned and controlled
by the reporting person, to purchase certain shares of capital stock of DNA-
ADTECH, a majority-owned subsidiary of ADT, that were held by DNA Export, S.A.
As consideration for the shares, ADT agreed to issue 598,198 shares of ADT
common stock to DNA Export, S.A. This transaction was conditioned upon ADT
obtaining the approval of ADT's stockholders. Stockholder approval was obtained
on August 11, 1999 and the transactions contemplated by the Exchange Agreement
were consummated on September 24, 1999. Mr. Boxall is the President and a
director of ADT.
Except as described in Items 3 and 4 above and in this Item 6, Mr. Boxall
does not have any contract, arrangement, understanding or relationship with any
person with respect to any security of ADT except for the following:
In March 1999, Mr. Boxall and ADT entered into a Repayment Agreement
pursuant to which the parties agreed that in the event that ADT is unable to pay
the amounts outstanding under an existing promissory note issued to Pedro Nunez
Barranco Guembe on or before maturity without compromising ADT's plan for
growth, Mr. Boxall will repay the entire balance and will give ADT an additional
period of one year to repay the balance. Mr. Boxall will have the right at any
time after January 1, 2001 through March 1, 2001, to convert all or part of the
outstanding balance into shares of common stock at a purchase price per share
equal to the average sales price of the common stock for the month of December
2000, subject to a $3.50 per share minimum. If Mr. Boxall does not elect to
convert the outstanding balance, ADT may elect after January 31, 2001 to redeem
such amount for shares of common stock at a redemption price equal to the
average sales price of the common stock for the twenty business days preceding
the date of redemption.
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Item 7. Material to be Filed as Exhibits
--------------------------------
Exhibit No. Description
1.1 Exchange Agreement, dated as of March 23 1999, by and
among ADT, DNA Export, S.A. and Mr. Boxall.
1.2 Repayment Agreement, dated as of March 23 1999, by and
between ADT and Mr. Boxall.
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Signature
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After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: September 28, 1999 By: /s/ Alexander Peter Boxall
---------------------------------
Alexander Peter Boxall
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EXHIBIT 1.1
EXCHANGE AGREEMENT
AGREEMENT made as of the 23rd day of March 1999, among Advanced Deposition
Technologies, Inc., a Delaware corporation ("ADTECH"), DNA Export, S.A., a
corporation organized under the laws of the Kingdom of Spain ("DNA") and
Alexander Boxall, an individual residing in Madrid, Spain. For convenience,
each of the parties may be referred to separately as a "Party" and collectively
as the "Parties".
WHEREAS, DNA owns Three Thousand Three Hundred and Sixty (3,360) shares of
the capital stock (the "ABSA Capital Stock") of DNA-ADTECH, S.A., a corporation
organized under the laws of the Kingdom of Spain (formerly known as Alexander
Boxall, S.A.); and
WHEREAS, DNA wishes to transfer Three Thousand Three Hundred and Sixty
(3,360) shares of ABSA Capital Stock (the "ABSA Shares") to ADTECH, such amount
representing sixteen percent (16%) of the outstanding capital stock of DNA-
ADTECH, S.A. on a fully-diluted basis, in exchange for Five Hundred Ninety-Eight
Thousand One Hundred Ninety-Eight (598,198) shares (the "ADTECH Shares") of the
common stock, par value $01 per share of ADTECH (the "Common Stock").
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:
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1. Exchange of ABSA Shares for ADTECH Shares. Upon the terms and
-----------------------------------------
conditions set forth herein and in reliance upon the representations and
warranties set forth below, DNA agrees to transfer to ADTECH the ABSA Shares and
ADTECH agrees to issue to DNA the ADTECH Shares in exchange therefor (the
"Exchange").
2. Closing. The Exchange shall take place at a closing (the "Closing")
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to be held at 11:00 a.m at the offices of Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., as soon as possible, but in no event later than September 30,
1999 (the "Closing Date"), or at such other place and time as the Parties shall
designate. At the Closing, DNA shall deliver to ADTECH a certificate(s)
representing the ABSA Shares, duly endorsed for transfer to ADTECH and ADTECH
will instruct American Securities Transfer & Trust Company to issue and to
deliver to DNA a certificate representing the ADTECH Shares.
3. Representations and Warranties of DNA. As an inducement to ADTECH to
--------------------------------------
enter into this Agreement and to consummate the transactions contemplated
hereby. DNA hereby represents and warrants to ADTECH as follows:
(a) DNA is a corporation duly incorporated, validly existing and in
good standing under the laws of the Kingdom of Spain.
(b) All corporate action necessary for the execution, delivery and
performance by DNA of this Agreement and the consummation by DNA of the
transactions contemplated hereby has been duly taken. This Agreement
constitutes the legal, valid and binding obligation of DNA enforceable against
DNA in accordance with its terms.
(c) Neither the execution and delivery of this Agreement by DNA 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 DNA's organizational documents or the terms of any material agreement or
instrument to which DNA is a party or by which DNA is bound or subject, (ii)
violate any judgment, order, injunction, decree or award against or binding upon
DNA, or (iii) constitute a violation of any applicable law or regulation of any
applicable jurisdiction.
(d) DNA is the record and beneficial owner of the ABSA Shares and has
good and marketable title thereto, free and clear of all liens, claims, pledges,
security interests, charges, options, restrictions or other encumbrances. DNA
has the right, power and authority to enter into this Agreement and to perform
its obligations hereunder.
(e) (i) DNA is acquiring the ADTECH Shares for its own account for
investment only and not with a view to the distribution or public offering
thereof within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
(ii) DNA is an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D of the Securities Act.
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(iii) DNA understands that the ADTECH Shares are being offered
and transferred to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities
laws and that ADTECH is relying in part upon the truth and accuracy of, and
DNA's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of DNA set forth herein in order to
determine the availability of such exemptions and the eligibility of DNA to
acquire the ADTECH Shares.
(iv) DNA understands that no governmental authority has passed
on or made any recommendation or endorsement of the ADTECH Shares or the
fairness or suitability of the investment in the ADTECH Shares nor has any
governmental authority passed upon or endorsed the merits of the sale of
the ADTECH Shares.
(v) DNA understands that (a) the ADTECH Shares have not been and
are not being registered under the Securities Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless
(1) subsequently registered thereunder, (2) DNA shall have delivered to
ADTECH an opinion of counsel, in a generally acceptable form, to the effect
that the ADTECH Shares to be sold, assigned or transferred may be sold,
assigned or transferred pursuant to an exemption from such registration, or
(3) the ADTECH Shares can be sold, assigned or transferred pursuant to Rule
144 promulgated under the Securities Act (or a successor rule thereto)
("Rule 144"); (b) any sale of the ADTECH Shares made in reliance on Rule
144 may be made only in accordance with the terms of Rule 144 and further,
if Rule 144 is not applicable, any resale of the ADTECH Shares under
circumstances in which the seller (or the person through whom the sale is
made) may be deemed to be an underwriter (as that term is defined in the
Securities Act) may require compliance with some other exemption under the
Securities Act or the rules and regulations of the Securities Exchange
Commission thereunder; and (c) neither ADTECH nor any other person is under
any obligation to register the ADTECH Shares under the Securities Act or
any state securities laws or to comply with the terms and conditions of any
exemption thereunder.
(vi) DNA understands that the certificate(s) or other
instrument(s) representing the ADTECH Shares 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
<PAGE>
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.
(c) The representations and warranties of DNA shall survive the
Closing.
4. Representations and Warranties of ADTECH. As an inducement to DNA to
----------------------------------------
enter into this Agreement and to consummate the transactions contemplated
hereby, ADTECH hereby represents and warrants to DNA 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) Except for the requisite approval by its stockholders, 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.
5. Conditions to Closing.
---------------------
(a) The obligation of ADTECH to deliver the ADTECH Shares to DNA and
to consummate the transactions contemplated hereby is subject to the
satisfaction of the following conditions:
<PAGE>
(i) All of the representations and warranties of DNA contained
in this Agreement shall be true, correct and complete in all material
respects on and as of the date hereof and on and as of the date of the
Closing, as if made on and as of the date of the Closing (except to the
extent any such representation or warranty speaks as of a different date,
in which case such representation or warranty shall still be true, correct
and complete as of such different date). On the date of the Closing, DNA
shall have executed and delivered to ADTECH a certificate, in form and
substance satisfactory to ADTECH and its counsel, to such effect.
(ii) ADTECH shall have obtained the necessary approval of the
Exchange by its stockholders.
(b) The obligation of DNA to deliver the ABSA Shares to ADTECH and to
consummate the transactions contemplated hereby is subject to the condition that
all of the representations and warranties of ADTECH contained in this Agreement
shall be true, correct and complete in all material respects on and as of the
date hereof and on and as of the date of the Closing, as if made on and as of
the date of the Closing (except to the extent any such representation or
warranty speaks as of a different date, in which case such representation or
warranty shall still be true, correct and complete as of such different date).
On the date of the Closing, ADTECH shall have executed and delivered to DNA a
certificate, in form and substance satisfactory to DNA and its counsel, to such
effect.
6. Termination.
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In the event that the conditions for Closing set forth in Section 5 of
this Agreement have not been satisfied on or before the Closing Date, either DNA
or ADTECH may terminate this Agreement, effective immediately, by written notice
to the other; provided, however, that (i) ADTECH shall not be entitled to elect
to terminate this Agreement if the Closing has not occurred due to a failure to
meet any of the conditions set forth in Section 5(a)(i) and (ii) DNA shall not
be entitled to elect to terminate this Agreement if the Closing has not occurred
due to a failure to meet any of the conditions set forth in Section 5(b).
7. Adjustments.
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In the event of any change in the common stock of either of DNA or
ADTECH, prior to the Closing by reason of stock dividends, split-ups,
recapitulations, combinations, exchanges of shares or the like, the number of
Shares which DNA or ADTECH, as the case may be, is obliged to transfer under
this Agreement shall be adjusted appropriately.
8. Indemnification.
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(a) ADTECH hereby agrees to indemnify, defend and hold DNA and his
successors and assigns harmless from any claim, liability, obligation, loss,
damage, assessment, judgment, cost and expense (including, without limitation,
reasonable attorneys' fees) of any kind
<PAGE>
or character resulting from claims, charges, liens, contracts, rights, options,
security interests, encumbrances and restrictions of every kind and nature
against DNA arising out of or in any manner relating or attributable to any
inaccuracy in any representation or any breach of any warranty of ADTECH
contained herein.
(b) DNA hereby agrees to indemnify, defend and hold ADTECH and its
officers, directors and shareholders harmless from any claim, liability,
obligation, loss, damage, assessment, judgment, cost and expense (including,
without limitation, reasonable attorneys' fees) of any kind or character
resulting from claims, charges, liens, contracts, rights, options, security
interests, encumbrances and restrictions of every kind and nature against ADTECH
arising out of or in any manner relating or attributable to any inaccuracy in
any representation or any breach of any warranty of DNA contained herein.
9. Expenses. Boxall hereby agrees to pay the legal and accounting fees
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and expenses of ADTECH incurred in connection with the preparation and execution
of this Agreement and in obtaining stockholder approval of the transactions
contemplated hereby; provided, however, that such amount shall not exceed
$100,000.
10. Miscellaneous.
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(a) Entire Agreement. This Agreement constitutes the entire agreement
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of 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
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law or otherwise without the prior written consent of the other parties hereto.
Notwithstanding the foregoing, DNA may assign its rights and/or obligations
under this Agreement to Boxall or any entity controlled by Boxall. 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 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
------------
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
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and other communications provided for herein shall be deemed validly given, made
or served if in writing
<PAGE>
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 DNA, addressed to:
Mr. Alexander Boxall
Calle Atalanta 31
Las Rozas
28230 Madrid
Spain
Telephone: 011-3491-6644060
Fax: 011-3491-6986293
with copies to:
Gibson, Dunn & Crutcher, LLP
200 Park Avenue
New York, New York 10166-0193
Attn: Ignacio Foncillas, Esq.
Telephone: 212-351-3971
Fax: 212-351-4035
(ii) if to ADTECH, addressed to:
Advanced Deposition Technologies, Inc.
Myles Standish Industrial Park
Taunton, MA 02780
Attn.: Mr. Glenn Walters
Telephone: 508-823-0707
Fax: 508-823-4434
with copies to:
Mintz, Levin, Cohn, Ferris, Glovsky and Pope, P.C.
One Financial Center
Boston, MA 02111
Attn: Doug Zingale, Esq.
Telephone: 617-348-1763
Fax: 617-542-2241
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
<PAGE>
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 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
-----------
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 10(g). All arbitrations pursuant to this
Section 10(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, 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.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered under seal as of the date first written above.
DNA EXPORT, S.A.
By: /s/ Alexander P. Boxall
-----------------------
Alexander P. Boxall, President
ADVANCED DEPOSITION TECHNOLOGIES, INC.
By: /s/ Glenn J. Walters
--------------------
Glenn J. Walters, its Chief Executive
Officer, President and Treasurer
/s/ Alexander Boxall
--------------------
Alexander Boxall
<PAGE>
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 Alexander
Boxall ("Boxall"), an individual residing in Madrid Spain.
WHEREAS, ADTECH owes a certain amount of money to Pedro Nunez Barranco
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.
------------------------------------------------
(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
<PAGE>
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
<PAGE>
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.
----------------------------------------
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.
-----------------------------------------
(a) This Agreement constitutes the legal, valid and binding obligation of
Boxall enforceable against Boxall in accordance with its terms.
<PAGE>
(b) The representations and warranties of Boxall shall survive the Closing.
4. Condition Precedent.
--------------------
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.
-------------
(a) Entire Agreement. This Agreement constitutes the entire agreement of
----------------
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
----------
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
-----------------
except by an instrument in writing signed by the parties.
(d) Governing Law. This Agreement shall be governed by, and construed in
-------------
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
------------
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
--------
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:
Mr. Alexander Boxall
Calle Atalanta 31
Las Rozas
28230 Madrid
Spain
Telephone: 011-3491-6644060
Fax: 011-3491-6986293
<PAGE>
with copies to:
Gibson, Dunn & Crutcher, LLP
200 Park Avenue
New York, New York 10166-0193
Attn: Ignacio Foncillas, Esq.
Telephone: 212-351-3971
Fax: 212-351-4035
(ii) if to ADTECH, addressed to:
Advanced Deposition Technologies, Inc.
Miles Standish Industrial Park
Taunton, MA 02780
Attn.: Mr. Glenn Walters
Telephone: 508-823-0707
Fax: 508-823-4434
with copies to:
Mintz, Levin, Cohn, Ferris, Glovsky and Pope, P.C.
One Financial Center
Boston, MA 02111
Attn: Doug Zingale, Esq.
Telephone: 617-348-1763
Fax: 617-542-2241
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
-------- -------
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
-----------
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
<PAGE>
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/ Alexander Boxall
--------------------
Alexander Boxall
ADVANCED DEPOSITION
TECHNOLOGIES, INC.
By: /s/ Glenn J. Walters
--------------------
Glenn J. Walters, its Chief
Executive Officer, President and
Treasurer
<PAGE>
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/ Alexander Boxall
--------------------
Alexander Boxall
ADVANCED DEPOSITION
TECHNOLOGIES, INC.
By: /s/ Glenn J. Walters
--------------------
Glenn J. Walters, its Chief
Executive Officer, President
and Treasurer
