Exhibit 10.1
INDEMNIFICATION AGREEMENT dated as
of __________________________, 2005 between
Adept Technology, Inc.
(the
"Company"), and _______________________________ ("Indemnitee")
WHEREAS, the Board of Directors has determined that the
inability to attract and retain qualified
persons as directors and officers is
detrimental to the best interests of the
Company's stockholders and that the
Company should act to assure such persons
that there will be adequate certainty
of protection through insurance and
indemnification against risks of claims and
actions against them arising out of their
service to and activities on behalf of
the Company; and
WHEREAS, the Company has adopted provisions in its By-laws
providing for indemnification of its
officers and directors to the fullest
extent permitted by applicable law, and the
Company wishes to clarify and
enhance the rights and obligations of the
Company and Indemnitee with respect to
indemnification; and
WHEREAS, in order to induce and encourage highly experienced
and capable persons such as Indemnitee to
serve and continue to serve as
directors and officers of the Company and
in any other capacity with respect to
the Company, and to otherwise promote the
desirable end that such persons will
resist what they consider unjustified
lawsuits and claims made against them in
connection with the good faith performance
of their duties to the Company, with
the knowledge that certain costs,
judgments, penalties, fines, liabilities and
expenses incurred by them in their defense
of such litigation are to be borne by
the Company and they will receive the
maximum protection against such risks and
liabilities as may be afforded by law, the
Board of Directors of the Company has
determined that the following Agreement is
reasonable and prudent to promote and
ensure the best interests of the Company
and its stockholders; and
WHEREAS, the Company desires to have Indemnitee continue to
serve as a director or officer of the
Company and in such other capacity with
respect to the Company as the Company may
request, as the case may be, free from
undue concern for unpredictable,
inappropriate or unreasonable legal risks and
personal liabilities by reason of
Indemnitee acting in good faith in the
performance of Indemnitee's duty to the
Company; and Indemnitee desires to
continue so to serve the Company, provided,
and on the express condition, that
he or she is furnished with the indemnity
set forth hereinafter;
Now, therefore, in consideration of Indemnitee's continued
service as a director or officer of the
Company, the parties hereto agree as
follows:
1. Service by Indemnitee. Indemnitee will serve and/or
continue to serve as a director or officer
of the Company faithfully and to the
best of Indemnitee's ability so long as
Indemnitee is duly elected or appointed
and until such time as Indemnitee is
removed as permitted by law or tenders a
resignation in writing. This Agreement
shall not impose any obligation on the
Company to continue Indemnitee's service to
the Company beyond any period
otherwise required by law or by other
agreements of the parties, if any.
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2. Indemnification. The Company shall indemnify Indemnitee to
the fullest extent permitted by the
Delaware General Corporation law in effect
on the date hereof or as such law may from
time to time be amended (but, in the
case of any such amendment, only to the
extent that such amendment permits the
Company to provide broader indemnification
rights than said law permitted the
Company to provide prior to such
amendment). Without diminishing the scope of
the indemnification provided by this
Section, the rights of indemnification of
Indemnitee provided hereunder shall include
but shall not be limited to those
rights hereinafter set forth, except that
no indemnification shall be paid to
Indemnitee:
(a) to the extent expressly prohibited by Delaware law or the
By-laws
of the Company;
(b) for which payment is actually made to Indemnitee under a valid
and
collectible insurance policy or under a valid and enforceable
indemnity
clause, by-law or agreement of the Company or any other company
or
organization on whose board Indemnitee serves at the request of
the
Company, except in respect of any indemnity exceeding the payment
under
such insurance, clause, by-law or agreement;
(c) in connection with an action, suit or proceeding, or part
thereof
(including claims and counterclaims) initiated by Indemnitee,
except a
judicial proceeding or arbitration pursuant to Section 10 to
enforce
rights under this Agreement, unless the action, suit or proceeding
(or
part thereof) was authorized by the Board of Directors of the
Company;
(d) with respect to any action, suit or proceeding brought by or
on
behalf of the Company against Indemnitee that is authorized by
the
Board of Directors of the Company, except as provided in Sections
4, 5
and 6 below.
3. Action or Proceedings Other than an Action by or in the
Right of the Company. Except as limited by
Section 2 above, Indemnitee shall be
entitled to the indemnification rights
provided in this Section if Indemnitee is
a party or is threatened to be made a party
to any Proceeding (other than an
action by or in the name of the Company) by
reason of the fact that Indemnitee
is or was a director, officer, employee or
agent of the Company, or is or was
serving at the request of the Company as a
director, officer, employee or agent
or fiduciary of any other entity
(including, but not limited to, another
corporation, partnership, joint venture or
trust); or by reason of anything done
or not done by Indemnitee in any such
capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all
costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by
or on behalf of Indemnitee, and
Expenses (defined below) actually and
reasonably incurred by Indemnitee in
connection with such Proceeding, if
Indemnitee acted in good faith and in a
manner he reasonably believed to be in or
not opposed to the best interests of
the Company, and with respect to any
criminal Proceeding, had no reasonable
cause to believe his or her conduct was
unlawful.
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4. Indemnity in Proceedings by or in the Name of the Company.
Except as limited by Section 2 above,
Indemnitee shall be entitled to the
indemnification rights provided in this
Section if Indemnitee was or is a party
or is threatened to be made a party to any
Proceeding brought by or in the name
of the Company to procure a judgment in its
favor by reason of the fact that
Indemnitee is or was a director, officer,
employee or agent or fiduciary of the
Company, or by reason of anything done or
not done by Indemnitee in any such
capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all
costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by
or on behalf of Indemnitee, and Expenses
actually and reasonably incurred by
Indemnitee in connection with such
Proceeding if Indemnitee acted in good faith
and in a manner Indemnitee reasonably
believed to be in or not opposed to the
best interests of the Company; provided,
however, that no such indemnification
shall be made in respect of any claim,
issue, or matter as to which Delaware law
expressly prohibits such indemnification by
reason of any adjudication of
liability of Indemnitee to the Company,
unless and only to the extent that the
Court of Chancery of the State of Delaware
or the court in which such action or
suit was brought shall determine upon
application that, despite the adjudication
of liability but in view of all the
circumstances of the case, Indemnitee is
entitled to indemnification for such costs,
judgments, penalties, fines,
liabilities and Expenses as such court
shall deem proper.
5. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the
limitations of Section 2(d), 3 and 4
above, to the extent that Indemnitee has
been successful, on the merits or
otherwise, in whole or in part, in defense
of any action, suit or proceeding
(including an action, suit or proceeding
brought by or on behalf of the Company)
or in defense of any claim, issue or matter
therein, including, without
limitation, the dismissal of any action
without prejudice, or if it is
ultimately determined that Indemnitee is
otherwise entitled to be indemnified
against Expenses, Indemnitee shall be
indemnified against all Expenses actually
and reasonably incurred in connection
therewith.
6. Partial Indemnification. If Indemnitee is entitled under
any provision of this Agreement to
indemnification by the Company for some or a
portion of the costs, judgments, penalties,
fines, liabilities or Expenses
actually and reasonably incurred in
connection with any action, suit or
proceeding (including an action, suit or
proceeding brought by or on behalf of
the Company), but not, however, for all of
the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for
the portion of such costs,
judgments, penalties, fines, liabilities
and Expenses actually and reasonably
incurred to which Indemnitee is
entitled.
7. Indemnification for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to
the maximum extent permitted by
applicable law, Indemnitee shall be
entitled to indemnification against all
Expenses actually and reasonably incurred
or suffered by Indemnitee or on
Indemnitee's behalf if Indemnitee appears
as a witness or otherwise incurs legal
expenses as a result of or related to
Indemnitee's service as a director or
officer of the Company, in any threatened,
pending or completed legal,
administrative, investigative or other
proceeding or matter to which Indemnitee
neither is, nor is threatened to be made, a
party.
8. Determination of Entitlement to Indemnification. Upon
written request by Indemnitee for
indemnification pursuant to Sections 3, 4, 5,
6 or 7 the entitlement of Indemnitee to
indemnification, to the extent not
provided pursuant to the terms of this
Agreement, shall be determined by the
following person or persons who shall be
empowered to make such determination:
(a) the Board of Directors of the Company
by a majority vote of Disinterested
Directors (defined below), whether or not
such majority constitutes a quorum;
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(b) a committee of Disinterested Directors
designated by a majority vote of such
directors, whether or not such majority
constitutes a quorum; (c) if there are
no Disinterested Directors, or if the
Disinterested Directors so direct, by
Independent Counsel (defined below) in a
written opinion to the Board of
Directors, a copy of which shall be
delivered to Indemnitee; or (d) the
stockholders of the Company. Such
Independent Counsel shall be selected by the
Board of Directors and approved by
Indemnitee. Notwithstanding the foregoing, if
a Change in Control has occurred since the
date of this Agreement and the
Indemnitee specifically requests in
Indemnitee's written request for
indemnification pursuant to Sections 3, 4,
5, 6 or 7, that such determination
not be made by the parties identified in
(a) or (b) above, such determination
shall be made by the party(ies) empowered
to make such determination as
identified in (c) or (d). Upon failure of
the Board so to select such
Independent Counsel or upon failure of
Indemnitee so to approve, such
Independent Counsel shall be selected upon
application to a court of competent
jurisdiction. Such determination of
entitlement to indemnification shall be made
not later than 30 calendar days after
receipt by the Company of a written
request for indemnification. Such request
shall include documentation or
information which is necessary for such
determination and which is reasonably
available to Indemnitee. Any Expenses
incurred by Indemnitee in connection with
a request for indemnification or payment of
Expenses hereunder, under any other
agreement, any provision of the Company's
By-laws or any directors' and
officers' liability insurance, shall be
borne by the Company. The Company hereby
indemnifies Indemnitee for any such Expense
and agrees to hold Indemnitee
harmless therefrom irrespective of the
outcome of the determination of
Indemnitee's entitlement to
indemnification. If the person making such
determination shall determine that
Indemnitee is entitled to indemnification as
to part (but not all) of the application
for indemnification, such person shall
reasonably prorate such partial
indemnification among the claims, issues or
matters at issue at the time of the
determination.
9. Presumptions and Effect of Certain Proceedings. The
Secretary of the Company shall, promptly
upon receipt of Indemnitee's request
for indemnification, advise in writing the
Board of Directors or such other
person or persons empowered to make the
determination as provided in Section 8
that Indemnitee has made such request for
indemnification. Upon making such
request for indemnification, Indemnitee
shall be presumed to be entitled to
indemnification hereunder and the Company
shall have the burden
