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EXHIBIT 10.49
** NOTE: PURSUANT TO INSTRUCTION 2 TO ITEM 601 OF REGULATION S-K, A SCHEDULE OF
MATERIAL DETAILS OF VARIOUS LOAN AGREEMENTS AND RELATED DOCUMENTS FOLLOWS THE
FORMS.**
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into this ___ day of _______, 2001, by
and between _____________________________ ("EMPLOYEE") and Colorado MEDtech,
Inc., a Colorado corporation (the "COMPANY").
WHEREAS, the Company has agreed to loan up to $____________ (the
"COMMITMENT AMOUNT") to Employee to enable Employee to purchase shares of Common
Stock of the Company; and
WHEREAS, the Company is willing to offer to such loan (the "LOAN") to
Employee and Employee desires to accept the loan on the terms and conditions
contained herein;
NOW, THEREFORE, in consideration of the above recitals, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto agree as follows:
1. Loan Commitment. The Company agrees to loan up to the Commitment
Amount to Employee during the period beginning with the date hereof and ending
June 30, 2001 under the terms of the Promissory Note of even date herewith,
provided, that Employee is employed by the Company at the time of advances
thereunder.
2. Repayment. Upon payment in full of the loan, the Company shall
deliver to Employee the Promissory Note marked "paid in full," together with a
termination of the Financing Statement filed on Form UCC-1, as hereinafter
identified and written authorization and instructions for release of escrowed
share certificates.
3. Use of Proceeds. Employee represents, warrants, and covenants to and
with the Company that the proceeds of the Loan shall be used by Employee solely
for purchase of common stock of the Company (the "SHARES") from persons other
than the Company and that loan proceeds not so used within thirty (30) days of
their advancement by the Company shall be immediately returned to the Company.
The Shares, together with duly executed Stock Powers, will be delivered to and
held by the Company's legal counsel, Chrisman, Bynum & Johnson, P.C. ("ESCROW
AGENT"), pursuant to a Master Escrow Agreement of even date herewith.
4. Form and Application of Payments. All payments (including
prepayments by Employee) on account of principal, interest, and other charges
shall be made to the Company without setoff or counterclaim, at the principal
office of the Company, in lawful money of the United States of America.
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5. Security Instruments. Contemporaneously with execution of this Loan
Agreement, Employee shall execute and acknowledge, as appropriate, and deliver
to the Company, the Promissory Note, a Security Agreement, a financing statement
on Form UCC-1 and a counterpart signature page to the Master Escrow Agreement,
which shall secure the repayment of the Loan. The security interest granted in
the Security Agreement shall be subordinate to no other liens or encumbrances
whatsoever, and Employee will deliver certificates for all Shares purchased with
proceeds of the Loan to the Escrow Agent as soon as possible after a purchase
transaction. This Agreement, the Promissory Note, the Security Agreement, the
Form UCC-1, and the Master Escrow Agreement are hereinafter collectively
referred to as the "LOAN DOCUMENTS").
6. Representations and Warranties. Employee represents and warrants
that the Loan Documents, when executed and delivered, will constitute valid and
legally binding obligations of Employee, enforceable against Employee in
accordance with their respective terms, and will not result in any violation of,
or conflict with, or constitute a default under, any mortgage, deed of trust,
pledge, loan or credit agreement or other agreement by which Employee is bound
or affected. All action required for the execution and performance of the Loan
Documents by Employee has been taken and all required consents and
authorizations have been obtained.
7. Covenants. As long as any portion of the Loan shall remain unpaid,
Employee covenants and agrees to perform and strictly comply with each of the
provisions of the Loan Documents.
8. Events of Default. The occurrence of any one or more of the
following events shall constitute an event of default ("EVENT OF DEFAULT")
hereunder: (a) failure to deliver the Shares to Escrow Agent within forty-five
(45) days of the date on which the Company makes an Advance under the Promissory
Note to Employee, (b) failure to pay any installment of principal or interest on
the Promissory Note or any portion thereof when due, or (c) breach of or failure
to perform any of the terms and conditions of any of the Loan Documents, if such
breach is not cured within ten (10) days of delivery of written notice by the
Company to Employee.
9. Rights and Remedies of the Company. On the occurrence of an Event of
Default or at any time thereafter, then the entire principal sum of the
Promissory Note and the accrued interest shall, at the option of the Company,
become at once due and payable without further notice, and the Company may, at
its option, enforce each and every right, power, and remedy provided for in the
Loan Documents and may pursue any other right, power, or remedy available to it,
whether at law, in equity, by statute, or otherwise, to enforce a collection of
all amounts and the performance of all other obligations due and owing to it
under or pursuant to the Loan Documents. Employee agrees to indemnify and hold
harmless the Company from and against any and all costs, expenses, claims,
losses, liabilities and damages (including reasonable fees and disbursements of
counsel) arising out of, based upon or relating to a violation by Employee of
any law or regulation, including without limitation a violation of Section 16 of
the Securities Exchange Act of 1934 resulting from remedies pursued by the
Company relating to an Event of Default.
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10. Severability of Provisions. If any provisions of any of the Loan
Documents shall be held, declared, or pronounced void, voidable, invalid,
unenforceable or inoperative for any reason by a court of competent
jurisdiction, government authority, or otherwise, such holding, declaration, or
pronouncement shall not adversely affect any other provision of such document,
which shall otherwise remain in full force and effect and be enforceable in
accordance with the terms of this Agreement.
11. Survival. All agreements, representations, warranties, terms and
conditions contained in the Loan Documents made by Employee and in connection
with the loan shall survive the closing and the execution and delivery of the
Loan Documents.
12. Time is of the Essence. Time is of the essence hereof and under all
of the Loan Documents.
13. Binding Effect. This Agreement shall be binding on the heirs,
successors and assigns of the parties hereto.
14. Colorado Law to Govern. This Agreement shall be construed in
accordance with the laws of the state of Colorado notwithstanding any Colorado
or other conflict of law provision to the contrary.
15. Notices. All notices, requests, demands, and other communications
pertaining to this Agreement shall be in writing and shall be deemed duly given
when delivered personally (which shall include delivery by facsimile and by
Federal Express or other nationally recognized, reputable overnight courier
service that issues a receipt or other confirmation of delivery) to the party
for whom such communication is intended, or three (3) business days after the
date mailed by certified or registered U.S. mail, return receipt requested,
postage prepaid, addressed as follows:
(a) If to Company:
Colorado MEDtech, Inc.
6175 Longbow Drive
Boulder, Colorado 80301
Attn: Peter J. Jensen, Vice President
with a copy (which shall not constitute notice) to:
Chrisman, Bynum & Johnson, P.C.
Attn: Christopher Hazlitt
1900 Fifteenth Street
Boulder, Colorado 80302
(b) If to Employee:
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to the Employee's address set forth on the counterpart
signature page attached to this Agreement or to such other
address as such party shall specify by written notice to the
other parties hereto.
IN WITNESS WHEREOF, this Loan Agreement is executed as of the day and
year first above written.
THE COMPANY:
COLORADO MEDTECH, INC.
By:
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Peter J. Jensen
Vice President
EMPLOYEE:
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Printed Name:
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MASTER PROMISSORY NOTE
Up to a maximum of $__________ ___________, 2001
Boulder, Colorado
FOR VALUE RECEIVED, the undersigned, ________________________
("MAKER"), promises to pay to the order of Colorado MEDtech, Inc., a Colorado
corporation ("HOLDER") at such place as shall be designated by Holder, the
unpaid principal amount of all Advances (as defined herein) made by Holder
hereunder, together with interest at the prime rate of interest as stated in the
Money Rates section of The Wall Street Journal (or, if such information is not
available, then the prevailing prime rate of interest in the United States, as
stated in a comparable authoritative financial publication) plus one-half of one
percent (1/2%) per annum. The foregoing prime rate of interest shall be updated
and adjusted according to such rate as applicable on January 2 (or, if such date
falls on a weekend or holiday, the first business day thereafter) of each
calendar year. Holder shall make advances to Maker in amounts up to a maximum of
$____________ (the "COMMITMENT AMOUNT"), as requested by Holder from time to
time pursuant to the terms of the second paragraph hereof and provided that no
Advances will be made after the earlier to occur of (a) the entire Commitment
Amount being advanced by Holder to Maker, (b) the termination of Maker's
employment with Holder for any reason or (c) June 30, 2001. Maker understands
that this is not a "revolving" note and that once principal payments are made on
this Promissory Note, Holder will not re-advance them after payments toward
principal have been made. Maker will pay accrued interest on the outstanding
balance of this Promissory Note on each anniversary of the date hereof and all
principal and accrued interest hereunder will be due and payable in full on the
date which is (5) years from the date of this Promissory Note. If any payment
due hereunder falls on a weekend or holiday, payment will be due on the first
business day thereafter.
Maker may request Advances in increments of at least $10,000
("ADVANCES"), in an aggregate amount not to exceed the Commitment Amount. Each
advance shall be listed on an attachment to this Promissory Note.
This Promissory Note is to be secured by shares of Common Stock of
Colorado MEDtech, Inc., pursuant to the terms of a Loan Agreement and a Security
Agreement, both of even date herewith. The security interest in the Shares
created by the Security Agreement shall in no way limit or restrict the Holder's
collection rights as against Maker, as this is a full recourse obligation of
Maker. Such shares ("SHARES"), together with duly executed Stock Powers, will be
delivered to and held by Holder's legal counsel, Chrisman, Bynum & Johnson,
P.C., pursuant to a Master Escrow Agreement, of even date herewith.
Maker may prepay the Advance, in whole or in part, at any time, without
penalty.
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Upon (i) failure to deliver the Shares to Chrisman, Bynum & Johnson,
P.C., within forty-five (45) days of the date on which Holder makes any Advance
to Maker, or (ii) failure to pay any installment of principal or interest on
this Promissory Note or any portion thereof when due, or (iii) to perform any of
the terms or conditions of this Note or the breach by Maker of any document or
agreement referenced herein, if such deficiency is not cured within ten (10)
business days of delivery of written notice by Holder hereof to the Maker, then
the entire principal sum and accrued interest shall, at the option of Holder
hereof, become at once due and payable without further notice.
If any principal or interest payment on this Promissory Note is not
paid within ten (10) days after such payment is due, whether maturing by lapse
of time or by reason of the failure of the Maker hereof to pay when due or
because of a default in the performance of any of the covenants contained in
this Promissory Note, such installment of principal and interest shall
thereafter bear interest at the rate of one and one-half (1-1/2) times the
interest rate provided hereinabove (or the highest rate allowable by law, if
less) until fully paid.
This Note shall become immediately due and payable (i) ninety (90) days
after Holder's employment with Colorado MEDtech, Inc., or any subsidiary
corporation, terminates for any reason, (ii) if Maker commences any proceedings
in bankruptcy or for dissolution, liquidation, winding-up, composition or other
relief under state or federal bankruptcy laws; (iii) if such proceedings are
commenced against Maker, or a receiver or trustee is appointed for Maker or a
substantial portion of its property, and such proceeding or appointment is not
dismissed or discharged within sixty (60) days after its commitment; or (iv) the
date which is (5) years from the date of this Promissory Note.
All makers and endorsers waive presentment, demand for payment, notice
of dishonor, notice of protest, protest and all other notices or demands in
connection with the delivery, acceptance, extension, performance, default,
endorsement or guarantee hereof.
In the event (a) this Promissory Note is placed in the hands of any
attorney for collection, or (b) any suit or proceeding is brought for the
recovery or protection of the indebtedness, then and in any such events, the
Maker hereof agrees to pay on demand all costs and expenses of such suit or
proceedings incurred by Holder hereof, including reasonable attorneys' fees.
This Note shall be interpreted in accordance with the laws of the State
of Colorado notwithstanding any Colorado or other conflict of law provision to
the contrary. Any failure of Holder hereof to exercise any right shall not be
construed as a waiver of the right to exercise the same or any other right at
any time and from time to time thereafter.
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Printed Name:
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ADVANCES
DATE AMOUNT
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MASTER ESCROW AGREEMENT
(WITH POWER OF ATTORNEY AND
WAIVER OF CONFLICTS OF INTEREST)
This Master Escrow Agreement ("AGREEMENT") is entered into this ____
day of January, 2001, by and among Colorado MEDtech, Inc., a Colorado
corporation ("CMED"), Chrisman, Bynum & Johnson, P.C., a Colorado professional
corporation ("ESCROW AGENT"), and the parties who become parties to this
Agreement by signing a counterpart signature page hereto (each of whom, for
purposes of this Agreement, is referred to as an "EMPLOYEE"). The terms of this
Agreement shall apply as to any Employee only as to that Employee's Escrow
Shares, as defined herein.
CMED and Employee have entered into a Loan Agreement ("LOAN AGREEMENT")
pursuant to which CMED will loan money to Employee to enable Employee to
purchase CMED common stock. CMED and Employee have agreed that the common stock
purchased, and other CMED securities thereafter acquired by Employee pursuant to
the terms of the Loan Agreement will be delivered to and held by Escrow Agent
under the terms of this Agreement. Employee and CMED desire that Escrow Agent
hold such securities as provided in this Agreement. It is the responsibility of
Employee to deliver such shares to Escrow Agent, together with Stock Powers in
the form attached hereto, duly executed in compliance with New York Stock
Exchange medallion signature requirements, in blank, to Escrow Agent within the
time provided in the Loan Agreement. For purposes of this Agreement, Employee
designates and appoints Escrow Agent as Employee's Attorney-in-Fact, with full
power of attorney, to sign all documents and instruments whatsoever on behalf of
and in the name of Employee including, but not limited to, Stock Powers to
effect transfers of Escrow Shares in accordance with this Agreement.
Accordingly, in consideration of the mutual covenants contained herein,
the parties, intending to be legally bound, hereby agree as follows:
1. Deposit of Escrow Shares. Employee has delivered or shall deliver
the CMED share certificates for common stock required to be deposited in escrow
(the "ESCROW SHARES") to Escrow Agent, and Escrow Agent shall hold and disburse
the Escrow Shares only in accordance with this Agreement. Such share
certificates shall be in the name of Employee only, and shall, for so long as
they are held in escrow, be deemed beneficially owned by Employee and may be
voted by Employee. Escrow Agent will not be asked to hold any property or funds
other than Escrow Shares, without a written agreement to do so.
2. Escrow Shares. Escrow Shares shall include any securities delivered
as the result of a stock dividend, stock split, stock distribution, or similar
event, and any such securities shall become part of the Escrow Shares to be held
by Escrow Agent hereunder.
3. Release of Escrow Shares.
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(a) Escrow Agent shall release the Escrow Shares only (i) upon
the receipt of written instructions as provided by the Escrow Terms attached
hereto on Exhibit A, or (ii) an order of a court, or an arbitrator pursuant to
Section 7 of this Agreement. Without the unanimous agreement in writing of CMED,
Employee and Escrow Agent, agreeing to a change in the Escrow Terms attached
hereto as Exhibit A, such parties agree to be bound by the terms of such Escrow
Terms. Upon final release of an Employee's Escrow Shares as provided for herein,
this Agreement shall terminate as to that Employee, and the Escrow Agent shall
be discharged of any further liability relating to that Employee's Escrow
Shares.
(b) Notwithstanding the Escrow Terms attached hereto as
Exhibit A, either party may notify the Escrow Agent and the other party in
writing of its claim that it is entitled to the Escrow Shares. Such claiming
party shall, in reasonable detail, cite the Section(s) of the Loan Agreement,
and/or this Agreement, and the facts and circumstances supporting its claim.
Unless the other party objects by written notice to the Escrow Agent and the
other party within thirty (30) days of its receipt of such notice, the Escrow
Agent may release the Escrow Shares to the claiming party. If the other party
does so object, then the Escrow Agent shall continue to hold the Escrow Shares
and shall release them only in accordance with joint written instructions
executed by Employee and CMED or with the order of a court, or an arbitrator
pursuant to Section 7 of this Agreement. Each party agrees that it will act only
in good faith in making any claim or any objection pursuant to this Section
3(b).
4. Duties of the Escrow Agent.
(a) Duties in General.
(i) The Escrow Agent undertakes to perform only such
duties as are expressly set forth herein (and required by applicable law), which
the parties agree are ministerial in nature. If in doubt as to its duties and
responsibilities hereunder, the Escrow Agent may consult with counsel of its
choice and shall be protected in any action taken or omitted in connection with
the advice or opinion of such counsel.
(ii) If the Escrow Agent becomes involved in
litigation with respect to this Escrow Agreement for any reason, it is hereby
authorized to deposit the Escrow Shares with the Clerk of such court in which
such litigation is pending, or to interplead all interested parties in any court
of competent jurisdiction and to deposit with the Clerk of such court the Escrow
Shares. Upon the happening of either of the above, the Escrow Agent shall stand
fully relieved and discharged of any further duties hereunder.
(iii) If the Escrow Agent should at any time be
confronted with inconsistent claims or demands by the parties hereto, the Escrow
Agent shall have the right to interplead such parties in any state or federal
court of competent jurisdiction, to deposit the Escrow Shares with the Clerk of
such court, and to request that such court determine the respective rights of
the parties with respect to this Escrow Agreement, and upon doing so, the Escrow
Agent automatically shall be released from any obligations or liability as a
consequence
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of any claims or demands hereunder; provided, however, that any party may
initiate arbitration proceedings pursuant to Section 7 hereunder.
(b) Exculpation. Except for the Escrow Agent's own willful
misconduct, bad faith or gross negligence; (i) the Escrow Agent shall have no
liability of any kind whatsoever for its performance of any duties imposed upon
the Escrow Agent under this Escrow Agreement or for any of its acts or omissions
hereunder; (ii) the Escrow Agent shall not be responsible for any of the acts or
omissions of the parties hereto; (iii) the Escrow Agent shall not be liable to
anyone for damages, losses or expenses arising out of this Escrow Agreement; and
(iv) the Escrow Agent may rely and/or act upon any written instrument, document
or request believed by the Escrow Agent in good faith to be genuine and to be
executed and delivered by the proper person, and may assume in good faith the
authenticity, validity and effectiveness thereof and shall not be obligated to
make any investigation or determination as to the truth and accuracy of any
information contained therein.
(c) No Additional Duties. The Escrow Agent shall have no
duties except those that are expressly set forth herein, and it shall not be
bound by any notice of a claim or demand hereunder, or any waiver, modification,
amendment, termination or rescission of this Escrow Agreement.
(d) Miscellaneous. The Escrow Agent may execute any of its
powers or responsibilities hereunder and exercise any rights hereunder either
directly or by or through its agents or attorneys. The Escrow Agent shall not be
responsible for and shall not be under a duty to examine or pass upon the
validity, binding effect, execution or sufficiency of the Escrow Agreement or of
any agreement amendatory or supplemental hereto.
5. Releases; Indemnification; Fees and Expenses; Distribution.
(a) CMED and Employee, jointly and severally, agree to
indemnify and hold harmless the Escrow Agent from and against any and all costs,
expenses, claims, losses, liabilities and damages (including reasonable fees and
disbursements of counsel) (collectively, "DAMAGES") arising out of, based upon
or relating to the Escrow Agent's actions as escrow agent hereunder, except to
the extent that a court of competent jurisdiction determines by final,
nonappealable order that such Damages arose directly from the Escrow Agent's
gross negligence or willful misconduct, such Damages to be shares equally,
one-half by CMED and one-half by Employee.
(b) The Escrow Agent shall be entitled to reimbursement for
all administrative fees and expenses incurred by the Escrow Agent (including
reasonable fees and expenses of counsel) in connection with its duties
hereunder. Such fees and expenses shall be paid by CMED.
6. Resignation of the Escrow Agent. The Escrow Agent, and any successor
Escrow Agent, may resign at any time as Escrow Agent hereunder by giving at
least fifteen (15) business
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days written notice to the parties. Upon such resignation and the appointment of
a successor Escrow Agent, the resigning Escrow Agent shall be absolved from any
and all liability in connection with the exercise of its powers and duties as
Escrow Agent hereunder. Upon their receipt of notice of resignation from the
Escrow Agent, CMED and Employee shall use their reasonable best efforts jointly
to designate a successor Escrow Agent. If the parties do not agree upon a
successor Escrow Agent within fifteen (15) business days after the receipt by
the parties of the Escrow Agent's resignation notice, the Escrow Agent may
petition any court of competent jurisdiction for the appointment of a successor
Escrow Agent or other appropriate relief and any such resulting appointment
shall be binding upon all parties hereto. By mutual agreement, the parties shall
have the right at any time upon not less than seven (7) business days written
notice to terminate their appointment of the Escrow Agent, or the successor
Escrow Agent, as Escrow Agent hereunder. Notwithstanding anything to the
contrary in the foregoing, the Escrow Agent or the successor Escrow Agent shall
continue to act as Escrow Agent until a successor is appointed and qualified to
act as Escrow Agent.
7. Dispute Resolution. Except as provided below, any and all disputes
arising under or related to this Agreement which cannot be resolved through
negotiations between the parties shall be submitted to binding arbitration. If
the parties fail to reach a settlement of their dispute within fifteen (15) days
after the earliest date upon which one of the parties notified the other(s) of
its desire to attempt to resolve the dispute, then the dispute shall be promptly
submitted to arbitration by a single arbitrator through the Judicial Arbiter
Group ("JAG"), any successor of the JAG, or any similar arbitration provider who
can provide a former judge to conduct such arbitration if JAG is no longer in
existence. The arbiter shall be selected by JAG on the basis, if possible, of
his or her expertise in the subject matter(s) of the dispute. The decision of
the arbitrator shall be final, nonappealable and binding upon the parties, and
it may be entered in any court of competent jurisdiction. The arbitration shall
take place in Boulder, Colorado. The arbitrator shall be bound by the laws of
the State of Colorado applicable to the issues involved in the arbitration and
all Colorado rules relating to the admissibility of evidence, including, without
limitation, all relevant privileges and the attorney work product doctrine. All
discovery shall be completed in accordance with the time limitations prescribed
in the Colorado rules of civil procedure, unless otherwise agreed by the parties
or ordered by the arbitrator on the basis of strict necessity adequately
demonstrated by the party requesting an extension of time. The arbitrator shall
have the power to grant equitable relief where applicable under Colorado law.
The arbitrator shall issue a written opinion setting forth his or her decision
and the reasons therefor within thirty (30) days after the arbitration
proceeding is concluded. The obligation of the parties to submit any dispute
arising under or related to this Agreement to arbitration as provided in this
Section shall survive the expiration or earlier termination of this Agreement.
Notwithstanding the foregoing, either party may seek and obtain an injunction or
other appropriate relief from a court to preserve or protect trademarks,
tradenames, copyrights, patents, trade secrets or other intellectual property or
proprietary information or to preserve the status quo with respect to any matter
pending conclusion of the arbitration proceeding, but no such application to a
court shall in any way be permitted to stay or otherwise impede the progress of
the arbitration proceeding.
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In the event of any arbitration or litigation being filed or instituted
between the parties concerning this Agreement, the prevailing party will be
entitled to receive from the other party or parties its attorneys' fees, witness
fees, costs and expenses, court costs and other reasonable expenses, whether or
not such controversy, claim or action is prosecuted to judgment or other form of
relief.
8. Notices. All notices, requests, demands, and other communications
pertaining to this Agreement shall be in writing and shall be deemed duly given
when delivered personally (which shall include delivery by facsimile and by
Federal Express or other nationally recognized, reputable overnight courier
service that issues a receipt or other confirmation of delivery) to the party
for whom such communication is intended, or three (3) business days after the
date mailed by certified or registered U.S. mail, return receipt requested,
postage prepaid, addressed as follows:
(a) If to CMED:
Colorado MEDtech, Inc.
6175 Longbow Drive
Boulder, Colorado 80301
Attn: Peter J. Jensen, Vice President
with a copy (which shall not constitute notice) to:
Chrisman, Bynum & Johnson, P.C.
Attn: Christopher Hazlitt
1900 Fifteenth Street
Boulder, Colorado 80302
(b) If to Escrow Agent:
Chrisman, Bynum & Johnson, P.C.
Attn: Christopher Hazlitt
1900 Fifteenth Street
Boulder, Colorado 80302
(c) If to an Employee:
to the Employee's address set forth on the counterpart
signature page attached to this Agreement
or to such other address as such party shall specify by written notice to the
other parties hereto. Any notice sent to Escrow Agent shall also be sent to the
other party to this Agreement.
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9. Assignment. CMED and Employee may assign their rights under this
Agreement to the same extent they are permitted to assign their rights and
obligations under the Loan Agreement.
10. Waiver of Conflicts of Interest. Employee acknowledges that Escrow
Agent serves as legal counsel to CMED, and waives any conflict of interest
arising out of that representation, and specifically consents to Escrow Agent's
representation of CMED in all matters in connection with this transaction and
any dispute that may arise between CMED and Employee.
11. Miscellaneous. This Agreement, and with respect to Employee and
CMED, the Loan Agreement and documents referred to therein, embody the entire
agreement and understanding of the parties concerning the Escrow Shares. This
Agreement may be amended only by a writing signed by the party against whom
enforcement is sought. The headings in this Agreement are intended solely for
convenience or reference and shall be given no effect in the construction or
interpretation of this Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, except the
choice of law rules utilized in that jurisdiction. This Agreement shall bind and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns. This Agreement may be
executed in any number of counterparts, which together shall constitute one and
the same instrument.
[The remainder of this page is intentionally blank.]
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To evidence their agreement, the parties have caused this Master Escrow
Agreement to be executed on the date first written above.
COLORADO MEDTECH, INC.
By:
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Peter J. Jensen
Vice President
ESCROW AGENT:
CHRISMAN, BYNUM & JOHNSON, P.C.
By:
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Christopher M. Hazlitt
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MASTER ESCROW AGREEMENT
COUNTERPART SIGNATURE PAGE
The undersigned employee of Colorado MEDtech, Inc., agrees to the terms
of, and hereby becomes a party to, the foregoing Master Escrow Agreement, as of
the date set forth below.
EMPLOYEE:
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Name:
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Date:
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ADDRESS FOR NOTICE PURPOSES:
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COLORADO MEDTECH, INC. APPROVAL:
By:
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Date:
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EXHIBIT A
ESCROW TERMS
1. Employee shall deposit Escrow Shares with Escrow Agent within
forty-five (45) days of a loan from CMED to facilitate the purchase of
such shares.
2. Employee may request that CMED authorize the release of some or all of
the Escrow Shares, from time to time, to pay the exercise price of CMED
stock options, in which case a number of shares underlying such options
equal to the number of shares released shall be deposited with Escrow
Agent when issued.
3. Escrow Agent shall release Escrow Shares to Employee upon written
authorization from CMED signed by an executive officer of CMED (other
than Employee).
4. Escrow Agent shall release Escrow Shares and shall complete the Stock
Power delivered by Employee and release such Stock Power with the
Escrow Shares to CMED or CMED's stock transfer agent, upon written
instructions from an executive officer of CMED stating that the loan is
in default, provided, that Escrow Agent shall give written notice to
Employee at least ten (10) days prior to the release of any shares to
CMED.
6. Upon receipt of instructions to release the Escrow Shares signed by an
executive officer of CMED (other than Employee) and Employee and in
substantially the form attached hereto, Escrow Agent shall release the
Escrow Shares and shall complete the Stock Power delivered by Employee
and release such Stock Power with the Escrow Shares to CMED's stock
transfer agent or the party indicated in such instructions.
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated _____________, 2001, is entered into by
and between _______________________ ("EMPLOYEE") and Colorado MEDtech, Inc., a
Colorado corporation (the "SECURED PARTY");
WITNESSETH:
WHEREAS, Employee has borrowed money from Secured Party pursuant to a
Loan Agreement (the "LOAN Agreement") and a Promissory Note (the "NOTE"), both
of even date herewith, and purchased shares of common stock of Secured Party, to
be evidenced by certificates to be delivered within forty-five (45) days of the
date hereof (the "SHARES"); and
WHEREAS, to induce the Secured Party to enter into the Loan Agreement,
Employee has agreed to execute and deliver this Security Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Pledge. Employee hereby pledges, assigns and transfers to the
Secured Party, and hereby grants to the Secured Party a security interest in the
Shares and the certificates representing the Shares, and any other shares or
securities of the Secured Party subsequently issued, and all cash, securities,
and other property at any time and from time to time receivable or otherwise
distributed in respect of or in exchange for any of or all of the Shares (all
such Shares, certificates, cash, securities and other property being herein
collectively called the "PLEDGED COLLATERAL"). The Shares shall be held by
Chrisman, Bynum & Johnson, P. C. ("ESCROW AGENT") and shall have attached
thereto a stock power, endorsed in blank by Employee, in the form attached to
the Master Escrow Agreement among the parties and of even date herewith. Unless
and until an Event of Default (as defined in Section 3 hereof) has occurred, the
Pledged Collateral shall be held by the Escrow Agent in accordance with the
terms of this Security Agreement and the Master Escrow Agreement.
2. Indebtedness Secured. The security interest in the Pledged
Collateral granted under Section 1 hereof is granted as security for the payment
by Employee of his or her obligations to the Secured Party which arise under the
terms of the Note and the Loan Agreement.
3. Events of Default. For purposes of this Security Agreement, an
"EVENT OF DEFAULT" shall be deemed to have occurred if (i) Employee shall fail
to deliver the Shares to the Escrow Agent within forty-five (45) days of his or
her receipt of the funds loaned pursuant to the Note, (ii) Employee shall fail
to pay any installment of principal or interest on the Note or any portion
thereof when due, or (iii) if there is a breach by Employee of any
representation,
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warranty, covenant or other agreement under this Security Agreement or the Loan
Agreement, and such event is not cured within ten (10) days of delivery of
written notice by the holder of the Note to Employee.
4. Remedies Upon Default. At any time after an Event of Default shall
have occurred, Employee shall, upon written notice by the Secured Party, (a)
register the Pledged Collateral in the Secured Party's name and the Secured
Party shall (to the extent permitted by law) have the right to vote the shares
which are part of the Pledged Collateral pending disposition thereof as required
by Section 4(c) hereof; (b) apply the cash (if any) then held as Pledged
Collateral hereunder to the payments due on the Note; and (c) if there shall be
no such cash or the cash so applied shall be insufficient to pay such Note in
full, sell the Pledged Collateral, or any part thereof, on an additional ten
(10) business days' written notice to Employee, at public or private sale for
cash, upon credit, or for future delivery, as the Secured Party shall deem
appropriate; provided, however, that if such sale is a private sale, Employee
shall receive written notice thereof at least five (5) business days prior to
the consummation of such sale, which notice shall describe the material terms
and conditions thereof, and Employee may, within such five-day period, tender
payment and consummate such purchase on the same terms and conditions. In lieu
of the foregoing, the Secured Party may cancel the Pledged Collateral and credit
the fair market value of the cancelled shares (at the closing price of the stock
on Nasdaq on the date of cancellation) as a payment toward the Note and in an
amount not to exceed the Loan balance. Employee acknowledges that the stock
value may decline between the date of the Event of Default and the liquidation
or cancellation, and hereby waives any and all claims in respect of such
decline.
5. Application of Proceeds of Sale. The proceeds of sale of Pledged
Collateral sold pursuant to Section 4 hereof shall be applied by the Secured
Party as follows:
First: To the payment of the reasonable costs and expenses of
such sale (including registration costs and expenses, if applicable),
including the out-of-pocket expenses of the Secured Party and the
reasonable fees and out-of-pocket expenses of counsel employed in
connection therewith, and to the payment of all advances made by the
Secured Party for the account of the Employee hereunder and the payment
of all costs and expenses incurred by the Secured Party in connection
with the administration and enforcement of this Security Agreement, to
the extent that such advances, costs and expenses shall not have been
reimbursed to the Secured Party;
Second: To the reduction of all amounts due and payable under
the Note; and
Third: In the case of any surplus remaining after the
application of the proceeds of the sale of Pledged Collateral as
aforesaid, to Employee, his or her successors or assigns, or as a court
of competent jurisdiction may direct.
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6. Amendment to Agreements, Etc. Employee agrees and consents that his
or her obligations and the rights of the Secured Party under this Security
Agreement shall not be impaired if, at any time and from time to time:
(a) The time of repayment of the Note shall be extended in whole
or in part and/or shall be renewed in whole or in part;
(b) The maturity of the Note shall be accelerated and any
collateral security therefor exchanged, surrendered or
otherwise dealt with in accordance with the terms of any
present or future agreement relating thereto, including this
Security Agreement;
(c) The time for the performance by Employee or of compliance with
any term, covenant or agreement on his or her part to be
performed under the Note and/or any present or future
agreement between Employee and the Secured Party shall be
extended or such performance or compliance waived;
(d) The liability of Employee to pay the Note or to perform his or
her obligations under any present or future agreement between
Employee and the Secured Party shall be settled or
compromised.
Any of the foregoing may occur from time to time without affecting this
Security Agreement or the obligations of Employee hereunder, which shall
continue in full force and effect until the Note secured hereby and all
obligations of Employee hereunder shall have been fully paid and performed.
7. No Waiver. No failure on the part of the Secured Party to exercise,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Secured Party preclude any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
8. Termination. This Security Agreement shall terminate upon the date
on which the Note has been fully paid. At the time this Security Agreement has
been terminated, the Secured Party shall reassign and redeliver to Employee, or
to such person or persons as Employee may designate, against receipt, such of
the Pledged Collateral (if any) as shall not have been sold or otherwise applied
by the Secured Party pursuant to the terms hereof and shall still be held by the
Escrow Agent hereunder, together with appropriate instruments of reassignment
and release.
9. Binding Agreement; Assignment. This Security Agreement and the
terms, covenants and conditions hereof shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns. The purchaser, assignee, transferee, or pledgee of the Note and the
Secured Party's security interest hereunder shall forthwith become vested with
and entitled to exercise all the powers and rights given by this Security
Agreement to the Secured Party.
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10. Governing Law; Amendments. This Agreement shall in all respects be
construed in accordance with and governed by the laws of the State of Colorado
notwithstanding any Colorado or other conflict of law provision to the contrary.
This Agreement may not be amended or modified, nor may any of the Pledged
Collateral be released from the security interest created hereby except in a
writing signed by Employee and the Secured Party.
[The remainder of this page is intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Security
Agreement as of the date first above written.
SECURED PARTY:
COLORADO MEDTECH, INC.
By:
-----------------------------------------
Peter J. Jensen
Vice President
EMPLOYEE:
By:
-----------------------------------------
Name
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SCHEDULE OF LOAN AGREEMENTS AND RELATED DOCUMENTS
The following schedule of details of various Loan Agreements and related
documents is provided in accordance with Instruction 2 to Item 601 of Regulation
S-K. One (1) set of Loan Agreement, Master Promissory Note, Master Escrow
Agreement and Security Agreement has been made for each person listed in the
table below, and each document is substantially identical in all material
respects to the form preceding this schedule except with respect to the details
provided in the table below.
<Table>
<Caption>
Name Amount of Loan Date of Loan
---- -------------- ------------
Stephen K. Onody $250,000 1/17/01
Gregory A. Gould $150,000 1/17/01
Charles R. Klasson, Jr. $150,000 1/25/01
Frank Maguire $149,998 1/31/01
Kenneth D. Taylor, Ph.D. $ 49,997 1/31/01
Bill Wood $ 24,998 1/31/01
Richard Schoen $ 24,998 1/31/01
Charles W. Philipp, Jr. $ 74,999 1/31/01
James C. Vetricek $124,806 3/30/01
</Table>