EXHIBIT 10.40
ADEPT TECHNOLOGY,
INC.
AMENDED AND
RESTATED
2008 EMPLOYEE STOCK PURCHASE
PLAN
The following constitute the
provisions of the Amended and Restated 2008 Employee Stock Purchase
Plan of Adept Technology, Inc.
1. Purpose . The purpose of
the Plan is to provide employees of the Company and its Designated
Subsidiaries with an opportunity to purchase Common Stock of the
Company through accumulated payroll deductions. It is the intention
of the Company to have the Plan qualify as an “Employee Stock
Purchase Plan” under Section 423 of the Internal Revenue
Code of 1986, as amended. The provisions of the Plan, accordingly,
shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the
Code.
2. Definitions .
(a) “ Board ”
shall mean the Board of Directors of the Company.
(b) “ Code ”
shall mean the Internal Revenue Code of 1986, as
amended.
(c) “ Committee ”
shall mean a committee of members of the Board appointed by the
Board to administer the Plan.
(d) “ Common Stock
” shall mean the common stock of the Company, subject to
adjustment as provided in Section 19 hereof.
(e) “ Company ”
shall mean Adept Technology, Inc. and any Designated Subsidiary of
the Company.
(f) “ Compensation
” shall mean all base straight time gross earnings,
commissions, and payments for overtime.
(g) “ Designated
Subsidiaries ” shall mean the Subsidiaries which have
been designated by the Board from time to time in its sole
discretion as eligible to participate in the Plan.
(h) “ Employee ”
shall mean any individual who is an employee of the Company for tax
purposes whose customary employment with the Company is at least
twenty (20) hours per week and more than two (2) months
in any calendar year. Individuals classified as independent
contractors, consultants, or members of the Board or board of
directors of a Designated Subsidiary are not considered
“Employees” solely by virtue of such stations. For
purposes of the Plan, the employment relationship shall be treated
as continuing intact while the individual is on sick leave or other
leave of absence approved by the Company. Where the period of leave
exceeds 90 days and the individual’s right to reemployment is
not guaranteed either by statute or by contract, the employment
relationship will be deemed to have terminated on the 91st day of
such leave.
(i) “ Enrollment Date
” shall mean the first Trading Day of each Offering
Period.
(j) “ Exercise Date
” shall mean the last Trading Day of each Purchase
Period.
(k) “ Fair Market Value
” shall mean, as of any date, the value of Common Stock
determined as follows:
(1) If the Common Stock is listed on
any established stock exchange or a national market system,
including without limitation The Nasdaq Global Market or The Nasdaq
Capital Market, its Fair Market Value shall be the closing sale
price for the Common Stock (or the mean of the closing bid and
asked prices, if no sales were reported), as quoted on such
exchange or system for the last market trading day on the date of
such determination, as reported in The Wall Street Journal
or such other source as the Board deems reliable; or
(2) If the Common Stock is regularly
quoted by a recognized securities dealer but selling prices are not
reported, its Fair Market Value shall be the mean of the closing
bid and asked prices for the Common Stock on the date of such
determination, as reported in The Wall Street Journal or
such other source as the Board deems reliable; or
(3) 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.
(l) “ Offering Period
” shall mean, unless and until the Board or the Committee
determines otherwise, commencing September 1, 2008, the period
of approximately twenty-four (24) months during which an
option granted pursuant to the Plan may be exercised, commencing on
the first Trading Day on or after March 1 and September 1
of each year and terminating on the last Trading Day in the period
ending twenty-four (24) months later. Notwithstanding anything
to the contrary, beginning 2010, Offering Periods shall commence on
the first Trading Day on or after May 1 and November 1 of
each year. The duration and timing of Offering Periods may be
changed pursuant to Section 4 of this Plan.
(m) “ Plan ”
shall mean this 2008 Employee Stock Purchase Plan.
(n) “ Purchase Period
” shall mean, unless and until the Board or the Committee
determines otherwise, the approximately six month period commencing
after one Exercise Date and ending with the next Exercise Date,
except that the first Purchase Period of any Offering Period shall
commence on the Enrollment Date and end with the next Exercise
Date, and except that the Purchase Period commencing
September 1, 2009 shall be approximately eight
months.
(o) “ Purchase Price
” shall mean, unless and until the Board or the Committee
determines otherwise, 85% of the Fair Market Value of a share of
Common Stock on the Enrollment Date or on the Exercise Date,
whichever is lower; provided however, that the Purchase Price may
be adjusted by the Board pursuant to Section 20.
(p) “ Reserves ”
shall mean the number of shares of Common Stock covered by each
option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for
issuance under the Plan but not yet placed under option.
(q) “ Subsidiary
” shall mean any corporation having a relationship with the
Company described in Section 424(f) of the Code.
(r) “ Trading Day
” shall mean a day on which national stock exchanges and the
Nasdaq System are open for trading.
3. Eligibility .
(a) Any Employee (as defined in
Section 2(h)), who shall be employed by the Company on a given
Enrollment Date shall be eligible to participate in the
Plan.
(b) Any provisions of the Plan to
the contrary notwithstanding, no Employee shall be granted an
option under the Plan (i) to the extent that, immediately
after the grant, such Employee (or any other person whose stock
would be attributed to such Employee pursuant to
Section 424(d) of the Code) would own capital stock of the
Company and/or hold outstanding options to purchase such stock
possessing five percent (5%) or more of the total combined
voting power or value of all classes of the capital stock of the
Company or of any Subsidiary, or (ii) to the extent that his
or her rights to purchase stock under all employee stock purchase
plans of the Company and its subsidiaries accrues at a rate which
exceeds Twenty-Five Thousand Dollars ($25,000) worth of stock
(determined at the fair market value of the shares at the time such
option is granted) for each calendar year in which such option is
outstanding at any time.
4. Offering Periods . The
Plan shall be implemented by consecutive, overlapping Offering
Periods with a new Offering Period commencing on the first Trading
Day on or after March 1 and September 1 of each year, or
on such other date as the Board shall determine, and continuing
thereafter until terminated in accordance with Section 20
hereof. Notwithstanding anything to the contrary, beginning in
2010, Offering Periods shall commence on the first Trading Day on
or after May 1 and November 1 of each year. The Board
shall have the power to change the duration of Offering Periods
(including the commencement dates thereof) with respect to future
offerings without stockholder approval if such change is announced
prior to the scheduled beginning of the first Offering Period to be
affected thereafter.
5. Participation .
(a) An eligible Employee may become
a participant in the Plan by completing a subscription agreement
authorizing payroll deductions in the form of Exhibit A to
this Plan and filing it with the Company’s payroll office
prior to the applicable Enrollment Date.
(b) Payroll deductions for a
participant shall commence on the first payroll following the
Enrollment Date and shall end on the last payroll in the Offering
Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in Section 10
hereof.
6. Payroll Deductions
.
(a) At the time a participant files
his or her subscription agreement, he or she shall elect to have
payroll deductions made on each pay day during the Offering Period
in an amount not exceeding fifteen percent (15%) of the
Compensation which he or she receives on each pay day during the
Offering Period (unless and until the Board or the Committee
determines otherwise), provided, however, the aggregate of such
payroll deductions under two or more employee stock purchase plans
of the Company that are overlapping may not exceed fifteen percent
(15%) of the participant’s Compensation which he or she
receives on each pay day during the Offering Period.
(b) All payroll deductions made for
a participant shall be credited to his or her account under the
Plan and will be withheld in whole percentages only. A participant
may not make any additional payments into such account.
(c) A participant may discontinue
his or her participation in the Plan as provided in Section 10
hereof, or may increase or decrease the rate of his or her payroll
deductions during the Offering Period by completing or filing with
the Company a new subscription agreement authorizing a change in
payroll deduction rate. The Board may, in its discretion, limit the
number of participation rate changes during any Offering Period.
The change in rate shall be effective with the first full payroll
period following five (5) business days after the
Company’s receipt of the new subscription agreement unless
the Company elects to process a given change in participation more
quickly. A participant’s subscription agreement shall remain
in effect for successive Offering Periods unless terminated as
provided in Section 10 hereof.
(d) Notwithstanding the foregoing,
to the extent necessary to comply with Section 423(b)(8) of
the Code and Section 3(b) hereof, a participant’s
payroll deductions may be decreased to zero percent (0%) by the
participant at any time during a Purchase Period. Payroll
deductions shall recommence at the rate provided in such
participant’s subscription agreement at the beginning of the
first Purchase Period which is scheduled to end in the following
calendar year, unless terminated by the participant as provided in
Section 10 hereof.
7. Grant of Option . On the
Enrollment Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the
Company’s Common Stock determined by dividing such
Employee’s payroll deductions accumulated prior to such
Exercise Date and retained in the Participant’s account as of
the Exercise Date by the applicable Purchase Price; provided that
in no event shall an Employee be permitted to purchase during each
Purchase Period more than 1,200 shares of the Company’s
Common Stock (subject to any adjustment pursuant to
Section 19, and unless and until the Board or the Committee
determines otherwise), and provided further that such purchase
shall be subject to the limitations set forth in Sections 3(b)
and 12 hereof. The Board may, for future Offering Periods, increase
or decrease, in its absolute discretion, the maximum number of
shares of the Company’s Common Stock an Employee may purchase
during each Purchase Period of such Offering Period. Exercise of
the option shall occur as provided in Section 8 hereof, unless
the participant has withdrawn pursuant to Section 10 hereof,
and the option shall expire on the last day of the Offering
Period.
8. Exercise of Option
.
(a) Unless a participant withdraws
from the Plan as provided in Section 10 hereof, his or her
option for the purchase of shares will be exercised automatically
on the Exercise Date, and the maximum number of full shares subject
to option shall be purchased for such participant at the applicable
Purchase Price with the accumulated payroll deductions in his or
her account. No fractional shares will be purchased; any payroll
deductions accumulated in a participant’s account which are
not sufficient to purchase a full share shall be retained in the
participant’s account for the subsequent Purchase Period or
Offering Period, subject to earlier withdrawal by the participant
as provided in Section 10 hereof. Any other monies left over
in a participant’s account after the Exercise Date shall be
returned to the participant. The participant may elect to have
excess monies rolled-over to the next purchase period. To effect
such a request, an ESPP
