Exhibit 10.1
AMENDED AND RESTATED
ADEPT TECHNOLOGY, INC.
2004 DIRECTOR OPTION PLAN
1. Purposes of the Plan. The purposes of this 2004 Director Option Plan are
to attract and retain the best available individuals for service as Eligible
Directors of the Company, to provide additional incentive to the Eligible
Directors of the Company to serve as Directors, to encourage their continued
service on the Board, and to build a proprietary interest among the Eligible
Directors and thereby secure for the Company's shareholders the benefits
associated with common stock ownership by those who will oversee the Company's
future growth and success. The Plan permits the grant of stock options that are
not intended to qualify as "incentive stock options" under Section 422 of the
Code.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" means the common stock of the Company.
(d) "Company" means Adept Technology, Inc., a California corporation.
(e) "Director" means a member of the Board.
(f) "Eligible Director" means a Director who is not an employee of the
Company or any Parent or Subsidiary of the Company. For the purposes of this
Plan, the payment of a director's fee by the Company shall not be sufficient in
and of itself to constitute "employment" by the Company.
(g) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(h) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market of the National Association of Securities Dealers, Inc.
Automated Quotation ("Nasdaq") System, the Fair Market Value of a Share of
Common Stock shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such system or exchange (or the
exchange with the greatest volume of trading in Common Stock) on the date of
determination, as reported in The Wall Street Journal or such other source as
the Board deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq System (but not
on the National Market thereof) or regularly quoted by a recognized securities
dealer but selling prices are not reported, the Fair Market Value of a Share of
Common Stock shall be the mean between the high bid and low asked prices for the
Common Stock on the date of determination, as reported in The Wall Street
Journal or such other source as the Board deems reliable, or;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Board.
(i) "Option" means a stock option granted pursuant to the Plan.
(j) "Option Agreement" means the written agreement between the Company
and an Optionee evidencing the grant of an Option and setting forth the terms
and conditions thereof.
(k) "Optioned Stock" means the Common Stock subject to an Option.
(l) "Optionee" means a Director who holds an Option.
(m) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(n) "Plan" means this Adept Technology, Inc. 2004 Director Option
Plan.
(o) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 10 of the Plan.
(p) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan.
(a) General. Subject to the provisions of Section 10 of the Plan, the
maximum aggregate number of Shares which may be available grant and issuance
under the Plan is 60,000 Shares. The Shares may be authorized and unissued
shares or may be shares issued and thereafter acquired by the Company.
(b) Effect of Grant; Delivery of Shares as Payment. Upon the granting
of an Option, the number of Shares available under Section 3(a) for the granting
of further Options shall be reduced by the number of Shares in respect of which
the Option is granted; provided, however, that if any Option is exercised by
tendering Shares to the Company as full or partial payment of the exercise
price, the maximum number of Shares available under Section 3(a) shall be
increased by the number of Shares so tendered.
(c) Cancelled Options. Whenever any outstanding Option or portion
thereof expires, is canceled, forfeited or is otherwise terminated for any
reason without having been exercised or payment having been made in respect of
the entire Option, the Shares allocable to the expired, canceled, forfeited or
otherwise terminated portion of the Option may again be the subject of Options
granted under the Plan (unless the Plan has terminated).
4. Administration and Grants of Options under the Plan.
(a) Procedure for Grants. All grants of Options to Eligible Directors
under this Plan shall be automatic and nondiscretionary and shall be made
strictly in accordance with the provisions of this Section 4. No person shall
have any discretion to select which Eligible Directors shall be granted Options
or to determine the number of Shares to be covered by Options granted to
Eligible Directors.
(b) Initial Grant. Each Eligible Director who first becomes an
Eligible Director after the effective date of this Plan shall be automatically
granted an Option to purchase 10,000 Shares (the "First Option") on the date on
which such person first becomes an Eligible Director (whether through election
by the shareholders of the Company or appointment by the Board to fill a
vacancy); provided, however, that a Director who is not an Eligible Director,
who first becomes an Eligible Director by virtue of ceasing to be an employee of
the Company or any Parent or Subsidiary while remaining a Director, shall not
receive a First Option.
(c) Annual Grant. Each Eligible Director shall be automatically
granted an Option to purchase 2,000 Shares (a "Subsequent Option") at the next
meeting of the Board of Directors following the annual meeting of the
shareholders of the Company in each year that the Plan is in effect provided he
or she is then an Eligible Director and if as of such date, he or she has served
on the Board for at least the preceding six (6) months prior to such date.
Notwithstanding the foregoing, for the fiscal year ending June 30, 2005 only,
the Subsequent Option grant shall not be made at the next meeting of the Board
following the annual meeting of shareholders, but rather, shall be made at the
March 9, 2005 meeting of the Board of Directors.
(d) Shareholder Approval. Notwithstanding the provisions of Sections
4(b) and (c) hereof, any exercise of an Option made before the Company has
obtained shareholder approval of the Plan in accordance with Section 13 hereof
shall be conditioned upon obtaining such shareholder approval of the Plan in
accordance with Section 13 hereof.
(e) Option Agreement. Each Option shall be evidence by an Option
Agreement, in such form as the Board shall approve, containing such other terms
and conditions not inconsistent with the provisions of this Plan as determined
by the Board.
(f) Duration. The term of each Option shall be ten (10) years from the
date of grant, unless terminated earlier pursuant to Section 8 hereof.
(g) Exercise Price. The exercise price per Share of each Option shall
be 100% of the Fair Market Value of a Share on the date of grant of the Option.
In the event that the date of grant of the Option is not a trading day, the
exercise price per Share shall be the Fair Market Value of a Share on the next
trading day immediately following the date of grant of the Option.
Notwithstanding the foregoing, if the recipient of the Option, at the time of
the grant of such Option, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of grant of such Option.
(h) Vesting.
(i) Initial Grants. Subject to Section 10 hereof, each First
Option shall become exercisable as to twenty-five percent (25%) of the Shares
subject to the First Option one year after its date of grant and as to 1/48th of
the shares each month thereafter so that the First Option shall be fully
exercisable four (4) years after the date of grant, provided that the Optionee
continues to serve as a Director as of such dates.
(ii) Annual Grants. Subject to Section 10 hereof, each Subsequent
Option shall become exercisable as to 1/48th of the Shares subject to the
Subsequent Option on each monthly anniversary of its date of grant, provided
that the Optionee continues to serve as a Director on such dates.
5. Eligibility. Options may be granted only to Eligible Directors. All
Options shall be automatically granted in accordance with the terms set forth in
Section 4 hereof. The Plan shall not confer upon any Optionee any right with
respect to continuation of service as a Director or nomination to serve as a
Director, nor shall it interfere in any way with any rights which the Director
or the Company or the Company's shareholders may have to terminate the
Director's relationship with the Company at any time.
6. Term of Plan. The Plan shall become effective upon its adoption by the
Board, subject to its approval by the shareholders of the Company as described
in Section 13. It shall continue in effect for a term of ten (10) years from
adoption unless sooner terminated under Section 11.
7. Exercise of Option.
(a) Right to Exercise. Each Option shall be exercisable only while the
Eligible Director remains a Director of the Company, except as set forth in
Sections 8 and 10 hereof.
(b) Procedure for Exercise. Subject to the terms and conditions of the
Plan, an Option shall, to the extent then exercisable pursuant to Section 4, be
exercisable in whole or in part by a written notice delivered in person or by
mail to the Secretary of the Company at the Company's principal executive
office, specifying the number of Shares to be exercised and, to the extent
applicable, accompanied by payment therefor and otherwise in accordance with the
Option Agreement pursuant to which the Option was granted; provided, however,
that no Options shall be exercisable until shareholder approval of the Plan in
accordance with Section 13 hereof has been obtained. The exercise price for any
Shares purchased pursuant to the exercise of an Option shall be paid, in either
of the following forms: (a) cash or (b) the transfer, either actually or by
attestation, to the Company of Shares that have been held by the Optionee for at
least six (6) months (or such lesser period as may be permitted by the Board)
prior to the exercise of the Option, such transfer to be upon such terms and
conditions as determined by the Board or (c) a combination of cash and the
transfer of Shares. In addition, Options may be exercised through a registered
broker-dealer pursuant to such cashless exercise procedures which are, from time
to time, deemed acceptable by the Board. Any Shares transferred to the Company
as payment of the exercise price under an Option shall be valued at their Fair
Market Value on the day preceding the date of exercise of such Option. If
requested by the Company, the Optionee shall deliver the Option Agreement
evidencing the Option to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Option Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of Shares that may be purchased upon exercise shall be
rounded to the nearest number of whole Shares.
(c) Rights as a Shareholder Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
A share certificate for the number of Shares so acquired shall be issued to the
Optionee as soon as practicable after exercise of the Option. No adjustment
shall be made for a dividend or other right for which the record date is prior
to the date the stock certificate is issued, except as provided in Section 10 of
the Plan.
8. Termination of Continuous Status as a Director
(a) General. Subject to Section 10 hereof, in the event an Optionee's
status as a Director terminates (other than upon the Optionee's death or total
and permanent disability (as defined in Section 22(e)(3) of the Code)), the
Optionee may exercise his or her Options, but only within three (3) months
following the date of such termination, and only to the extent that the Optionee
was entitled to exercise it on the date of such termination (but in no event
later than the expiration of the option's ten (10) year term). To the extent
that the Optionee was not entitled to exercise an Option on the date of such
termination, and to the extent that the Optionee does not exercise such Option
(to the extent otherwise so entitled) within the time specified herein, the
Option shall terminate.
(b) Disability of Optionee. In the event Optionee's status as a
Director terminates as a result of total and permanent disability (as defined in
Section 22(e)(3) of the Code), the Optionee may exercise his or her Option, but
only within twelve (12) months following the date of such termination, and only
to the extent that the Optionee was entitled to exercise it on the date of such
termination (but in no event later than the expiration of the option's ten (10)
year term). To the extent that the Optionee was not entitled to exercise an
Option on the date of termination, or if he or she does not exercise such Option
(to the extent otherwise so entitled) within the time specified herein, the
Option shall terminate.
(c) Death of Optionee. In the event of an Optionee's death, the
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance may exercise the Option, but only within twelve (12)
months following the date of death, and only to the extent that the Optionee was
entitled to exercise it on the date of death (but in no event later than the
expiration of the option's ten (10) year term). To the extent that the Optionee
was not entitled to exercise an Option on the date of death, and to the extent
that the Optionee's estate or a person who acquired the right to exercise such
Option does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
9. Non-Transferability of Options. Unless determined otherwise by the
Board, an Option may not be sold, pledged, assigned, hypothecated, transferred,
or disposed of in any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the Optionee, only by
the Optionee.
10. Adjustments Upon Changes in Capitalization, Dissolution, Merger, Asset
Sale or Change of Control.
(a) Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the number of Shares covered by each outstanding
Option, the number of Shares which have been authorized for issuance under the
Plan but as to which no Options have yet been granted or which have been
returned to the Plan upon cancellation or expiration of an Option, as well as
the price per Share covered by each such outstanding Option, and the number of
Shares issuable pursuant to the automatic grant provisions of Section 4 hereof
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued Shares effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of Shares
subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised, it shall terminate immediately prior to the
consummation of such proposed action.
(c) Merger or Asset Sale.
(i) In the event of a merger or equivalent plan of reorganization
of the Company with or into another corporation, or the sale of substantially
all of the assets of the Company, each outstanding Option may be assumed or an
equivalent option may be substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. If such successor corporation assumes
or substitutes an equivalent option for the Option, the Option or equivalent
option shall continue to become exercisable as provided in Section 4 hereof for
so long as Optionee remains a Director or the Optionee serves as a director of
the successor corporation or a Parent or Subsidiary of the successor
corporation. Upon the Optionee's termination of status as a Director of the
Company or of the successor (or Parent or Subsidiary thereof), as applicable,
Optionee's outstanding Option(s) shall become fully exercisable, including as to
Shares as to which such Option(s) would not otherwise be exercisable, and shall
remain exercisable in accordance with Sections 8(c) through (e) above.
(ii) In the event that the successor corporation does not agree
to assume the Option or to substitute an equivalent option, each outstanding
Option shall become fully vested and exercisable, including as to Shares as to
which it would not otherwise be exercisable. If an Option becomes fully vested
and exercisable in the event of a merger or sale of assets, the Board shall
notify the Optionee that the Option shall be fully exercisable for a period of
thirty (30) days from the date of such notice, and the Option shall terminate
upon the expiration of such period. For the purposes of this paragraph, the
Option shall be considered assumed if, following the merger or sale of assets,
the Option confers the right to purchase, for each Share of Optioned Stock
subject to the Option immediately prior to the merger or sale of assets, the
consideration (whether stock, cash, or other securities or property) received in
the merger or sale of assets by holders of Common Stock for each Share held on
the effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares).
11. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend, alter,
suspend, or discontinue the Plan, but no amendment, alteration, suspension, or
discontinuation shall be made which would impair the rights of any Optionee
under any grant theretofore made, without his or her consent. In addition, to
the extent necessary and desirable to comply with any applicable law, regulation
or stock exchange or quotation system rule, the Company shall obtain shareholder
approval of any Plan amendment in such a manner and to such a degree as
required. Notwithstanding the foregoing, and subject to adjustment pursuant to
Section 10, the Plan may not be amended to materially increase the number of
shares of Common Stock authorized for issuance or reduce the exercise price of
outstanding Options, unless approved by the Company's shareholders.
(b) Effect of Amendment or Termination. Any amendment or termination
of the Plan shall not affect Options already granted and such Options shall
remain in full force and effect as if this Plan had not been amended or
terminated.
12. Conditions Upon Issuance of Shares.
(a) Shares shall not be issued pursuant to the exercise of an Option
unless the exercise of such Option and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the Exchange Act,
the rules and regulations promulgated thereunder, state securities laws, and the
requirements of any stock exchange upon which the Shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance.
(b) As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares, if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
(c) Inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful grant of an Option, or issuance and sale of any
Shares hereunder, shall relieve the Company of any liability in respect of the
failure to grant an Option or issue or sell such Shares as to which such
requisite authority shall not have been obtained.
13. Shareholder Approval. This Plan shall be effective on the date
determined by the Board, subject to the approval of the Plan by the Company's
shareholders. All Options granted under this Plan are subject to, and may not be
exercised before, the approval of this Plan by the Company's shareholders prior
to the first anniversary date of the effective date of the Plan; provided that
if such approval by the shareholders of the Company is not obtained, all Options
previously granted under this Plan shall be void. Shareholder approval of this
Plan shall be obtained in the degree and manner required under applicable state
and federal law.