FORM OF CHANGE OF CONTROL
AGREEMENT
This CHANGE OF CONTROL AGREEMENT (this
"Agreement") is dated as of September __, 2008 and is entered into
by and between _______________ ("Executive") and Adept Technology,
Inc., a Delaware corporation (the "Company").
WHEREAS, Executive is presently an officer and
key employee of the Company;
WHEREAS, the Board of Directors (the
“Board”) of the Company has determined that it is in
the best interests of the Company and its stockholders to ensure
the Executive’s continued dedication and active participation
in the business of the Company; and
WHEREAS, in order to induce Executive to remain
in the employ of the Company and in consideration of
Executive’s agreeing to remain in the employ of the Company,
the parties desire to specify the equity vesting acceleration which
shall be due to Executive in the event that his employment with the
Company is terminated under specified circumstances; and
NOW, THEREFORE, in consideration of the
foregoing, and for other good and valuable consideration the
receipt of which is hereby acknowledged, it is hereby agreed as
follows:
1.
Term of Agreement . This Agreement shall be
effective from the date first written above and, subject to Section
4, shall extend to and automatically terminate one day after
Executive's termination of employment with the Company for any
reason (but shall not terminate any obligations then owed
hereunder). No termination of this Agreement shall
limit, alter or otherwise affect Executive's rights hereunder with
respect to a Change of Control which has occurred prior to such
termination, including without limitation Executive's right to
receive the various benefits hereunder.
2.
Purpose of Agreement . The purpose of this
Agreement is to provide that, in the event of a "Change of
Control," Executive may become entitled to receive certain
additional benefits, as described herein, in the event of his
termination under specified circumstances.
3.
Change of Control . As used in this Agreement,
the phrase "Change of Control" shall mean the consummation of any
of the following after the date of this Agreement:
(i) any
merger or consolidation in which the voting securities of the
Company owned by the shareholders of the Company immediately prior
to such merger or consolidation do not represent, after conversion
if applicable, more than fifty percent (50%) of the total voting
power of the surviving controlling entity outstanding immediately
after such merger or consolidation; provided that any person who
(1) was a
beneficial
owner (within the meaning of Rules 13d-3 and 13d-5 promulgated
under the Exchange Act) of the voting securities of the Company
immediately prior to such merger or consolidation, and (2) is a
beneficial owner (or is part of a group of related persons that is
a beneficial owner) of more than 20% of the voting securities of
the Company immediately after such merger or consolidation (other
than Special Situations Funds and its affiliates), shall be
excluded from the list of "shareholders of the Company" immediately
prior to such merger or consolidation" for purposes of the
preceding calculation)."
(ii) the
sale of all or substantially all of the Company's assets to any
other person or entity (other than a wholly-owned
subsidiary),
(iii) any
"person" (as such term is used in sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becomes the
"beneficial owner" (as defined in Rule 13d-3 of that Act), directly
or indirectly, of securities of the Company representing more than
forty percent (40%) of the total voting power represented by the
Company's then outstanding voting securities (other than Special
Situations Funds and its affiliates),
(iv) the
dissolution or liquidation of the Company,
(v) a
change in the composition of the Board occurring within a two-year
period, as a result of which fewer than a majority of the directors
are Incumbent Directors ("Incumbent Directors" means directors who
either (A) are directors of the Company as of the date of this
Agreement or (B) are elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination, but
will not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to
the election of directors to the Board), or
(vi) any
other event substantially similar in substance and result to an
event set forth in clauses (i) through (v) as determined by the
Compensation Committee of the Board of Directors of the
Company.
4.
Effect of a Change of Control . In the event of a Change of
Control, Sections 5 through 13 of this Agreement shall become
applicable to Executive. These Sections shall continue to remain
applicable until the second anniversary of the date upon which the
Change of Control occurs. On such second anniversary date, and
provided that the employment of Executive has not been terminated
on account of a Qualifying Termination (as defined in Section 5
below), this Agreement shall terminate and be of no further force
or effect.
5.
Qualifying Termination . If within two years following a
Change of Control Executive's employment with the Company is
terminated by the Company or Executive resigns for good reason such
termination shall be conclusively considered a "Qualifying
Termination" unless:
(a) Executive
voluntarily terminates his employment with the
Company. Executive, however, shall not be
considered to have voluntarily terminated his employment with the
Company if he elects to terminate his employment because his
overall compensation plan is not substantially similar and in all
events at least as favorable as his compensation prior to the
Change of Control or his authority or duties are not substantially
similar taking into consideration that the Executive is likely to
know longer be a senior executive officer of a public company and
may not be a senior executive officer of the surviving corporation
although remaining a leader of the acquired
business. For such purposes, Executive’s authority
or duties shall be considered to not be "substantially the same"
if, without Executive’s express and voluntary written
consent, (i) there is any substantial diminution or adverse
modification in Executive's overall position or responsibilities;
(ii) the Company fails to timely pay or provide to Executive
any portion of Executive’s compensation or benefits then due
to Executive, and such failure is not remedied by the Company
within ten business days after the Company's receipt of written
notice from Executive of such failure; and (iii) there is a
relocation of Executive’s principal place of employment that
will result in an increase of more than thirty miles in
Executive’s one-way commute as compared to Executive’s
one-way commute prior to the Change of Control.
(b) The
termination is on account of Executive's death or
Disability. For such purposes, "Disability" shall mean a
physical or mental incapacity as a result of which Executive
becomes unable to continue the performance of his responsibilities
for the Company for a period of three months.
(c) Executive
is involuntarily terminated for "Cause." For this purpose, "Cause"
shall mean: a good faith determination by the Board that Executive
(i) committed a felony or a crime involving fraud, dishonesty or
moral turpitude under the laws of the United States, any state
thereof, or any other jurisdiction where Executive may reside full-
or part-time; (ii) committed, or participated in, a fraud or act of
dishonesty against the Company; (iii) willfully and deliberately
refused to comply with a lawful instruction of the Board of
Directors, which refusal is not remedied by Executive within a
reasonable period of time after his receipt of written notice from
the Company identifying the refusal, so long as the instruction is
consistent with the scope and responsibilities of Executive's
position; or
