<PAGE> 1
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As filed with the Securities and Exchange Commission on September 6, 1995
Registration No.
--------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALPHA MICROSYSTEMS
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 95-3108178
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2722 SOUTH FAIRVIEW STREET, SANTA ANA, CALIFORNIA 92704
(Address of principal executive offices) (Zip Code)
ALPHA MICROSYSTEMS
1993 EMPLOYEE STOCK OPTION PLAN
AND
1993 DIRECTORS' STOCK OPTION PLAN
(Full Title of the Plan)
(714) 957-8500
(Telephone Number, Including Area Code, of Agent for Service)
DOUGLAS J. TULLIO, PRESIDENT AND CHIEF EXECUTIVE OFFICER
ALPHA MICROSYSTEMS
2722 SOUTH FAIRVIEW STREET
SANTA ANA, CALIFORNIA 92704
(Name and Address of Agent For Service)
Copy to :
DEBRA DISON HALL, ESQ.
ALLEN, MATKINS, LECK, GAMBLE & MALLORY
515 SOUTH FIGUEROA STREET, 7TH FLOOR
LOS ANGELES, CALIFORNIA 90071-3398
(213) 622-5555
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Title of Securities to be Proposed Maximum Proposed Maximum Amount of Registration
Registered Amount to be Registered Offering Price Per Share* Aggregate Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock 650,000 Shares $1.00 $650,000 $224.14
(No par value)
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</TABLE>
* Based on the market price of Common Stock on August 31, 1995 in accordance
with Rule 457(c) promulgated under the Securities Act of 1933, as amended.
The Exhibit Index to this Registration Statement is located on pages 7 and 8 of
this filing.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Alpha
Microsystems, a California corporation (the "Corporation"), with the Securities
and Exchange Commission ("Commission") are incorporated herein by this reference
and made a part hereof:
1. Annual Report on Form 10-K for the fiscal year ended February
26, 1995.
2. Quarterly Report on Form 10-Q for the quarterly period ended
May 28, 1995.
3. Description of the Corporation's Common Stock, contained in
its Registration Statement on Form 8-A, dated June 24, 1982 filed under Section
12(b) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Corporation with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock of
the Corporation subject to issuance pursuant to the Corporation's 1993 Employee
Stock Option Plan and 1993 Directors' Stock Option Plan have been passed upon by
Allen, Matkins, Leck, Gamble & Mallory, 515 S. Figueroa Street, Seventh Floor,
Los Angeles, California 90071.
Marvin E. Garrett, a partner in the law firm of Allen, Matkins,
Leck, Gamble & Mallory, beneficially owns 53,800 shares of the Corporation's
Common Stock.
Brian C. Leck, a partner in the law firm of Allen, Matkins,
Leck, Gamble & Mallory, beneficially owns 1,000 shares of the Corporation's
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the General Corporation Law of the State of
California authorizes indemnification of directors, officers, employees and
other agents of California corporations. Pursuant to the Corporation's Articles
of Incorporation, Bylaws and indemnification agreements
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with various officers and directors, under certain circumstances, the
Corporation (i) will indemnify directors and officers (the "Indemnitees") to the
full extent authorized by the General Corporation Law of the State of
California, (ii) will advance expenses to the Indemnitees for defending certain
proceedings, and (iii) is authorized to maintain certain policies of insurance
to protect itself and any of its directors, officers or employees. The
Corporation currently maintains policies of insurance under which the directors
and officers of the Corporation are insured, within the limits and subject to
the limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, and certain liabilities which might be
imposed as a result of such actions, suits or proceedings, to which they are
parties by reason of being or having been such directors or officers. Insofar as
indemnification for liabilities arising under the Securities Act of 1933, as
amended ( the "Securities Act"), may be permitted of directors, officers or
persons controlling the Corporation pursuant to the foregoing provisions, the
Corporation has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is
incorporated herein by this reference.
ITEM 9. UNDERTAKINGS
(a) The Corporation hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8 and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Corporation pursuant to Section 13
or Section 15(d)
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of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The Corporation hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of
the Corporation's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The Corporation hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report, to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Exchange Act, and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth
in the prospectus, to deliver, or cause to be delivered to each person
to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to
provide such interim financial information.
(d) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling persons of the Corporation pursuant to the foregoing
provisions, or otherwise, the Corporation has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Corporation of
expenses incurred or paid by a director, officer or controlling person
of the Corporation in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Corporation
will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Ana, State of California, on this 5th day
of September, 1995.
ALPHA MICROSYSTEMS, a California
corporation
By: /s/DOUGLAS J. TULLIO
--------------------------------
Douglas J. Tullio, President and
Chief Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and
appoints Clark E. Reynolds, Douglas J. Tullio and Michael J. Lowell, and each of
them, such person's true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for such person and in such person's name,
place, and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same with all exhibits thereto, and all documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/CLARK E. REYNOLDS Chairman of the Board September 5, 1995
- --------------------
Clark E. Reynolds
/s/DOUGLAS J. TULLIO President, Chief Executive Officer September 5, 1995
- -------------------- and Director
Douglas J. Tullio
/s/JOHN F. GLADE Vice President, Engineering and September 5, 1995
- -------------------- Manufacturing, and Secretary
John F. Glade
/s/MICHAEL J. LOWELL Chief Financial Officer September 5, 1995
- --------------------
Michael J. Lowell
/s/ROCKELL N. HANKIN Director September 5, 1995
- --------------------
Rockell N. Hankin
/s/HARRY L. HATHAWAY Director September 5, 1995
- --------------------
Harry L. Hathaway
</TABLE>
-6-
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EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBER DESCRIPTION NUMBERED PAGE
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<S> <C> <C>
4.1 Amended Articles of Incorporation of Registrant dated as of
September 28, 1984 (incorporated herein by reference to
Exhibit 4.0 to the Quarterly Report on Form 10-Q of
Registrant for the Quarter Ended August 26, 1984)
4.2 Amendment and Restatement to Article IV of the Articles of
Incorporation of Registrant dated June 24, 1992
(incorporated herein by reference to Exhibit 10.71 to the
Quarterly Report on Form 10-Q of Registrant for the Quarter
Ended May 31, 1992)
4.3 Amended and Restated Bylaws, as amended, of Registrant
(incorporated herein by reference to Exhibit 3.2 to the
Annual Report on Form 10-K of Registrant for the Year Ended
February 28, 1988)
4.4 Amendment to Article III, Section 2 of the Amended and
Restated Bylaws of Registrant dated August 18, 1989
(incorporated herein by reference to Exhibit 3.3 to the
Quarterly Report on Form 10-Q of Registrant for the Quarter
Ended August 27, 1989)
4.5 Amendment to Article II of the Amended and Restated Bylaws
of Registrant dated August 21, 1991 (incorporated herein by
reference to Exhibit 3.7 to the Quarterly Report on Form
10-Q of Registrant for the Quarter Ended August 25, 1991)
4.6 Registration Rights Agreement between Registrant and CAIR
Systems Corporation dated May 1, 1991 (incorporated herein
by reference to Exhibit 4.1 to the Annual Report on Form
10-K of Registrant for the Year Ended February 23, 1992)
5 Opinion of Allen, Matkins, Leck, Gamble & Mallory 9
10 Alpha Microsystems 1993 Employee Stock Option Plan 11
10.1 Alpha Microsystems 1993 Directors' Stock Option Plan 23
</TABLE>
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<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBER DESCRIPTION NUMBERED PAGE
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<S> <C> <C>
21 Subsidiaries of Registrant (incorporated herein by reference
to Exhibit 21 to the Annual Report on Form 10-K of
Registrant for the Year Ended February 26, 1995)
23 Consent of Allen, Matkins, Leck, Gamble & Mallory (included 9
as part of Exhibit 5 hereto)
23.1 Consent of Ernst & Young LLP 32
24 Power of Attorney (included at page 5 of the Registration
Statement) 5
</TABLE>
-8-
<PAGE> 1
[ALLEN,MATKINS,LECK,GAMBLE & MALLORY LETTERHEAD]
September 5, 1995
Board of Directors
Alpha Microsystems
2722 South Fairview Street
Santa Ana, California 92704
Re: Registration Statement on Form S-8 of Alpha Microsystems With Respect
to 1993 Employee Stock Option Plan and 1993 Directors' Stock Option
Plan
Gentlemen:
We have acted as counsel in connection with the registration on Form S-8
under the Securities Act of 1933, as amended, of an aggregate of 650,000 shares
of Common Stock, no par value (the "Shares"), of Alpha Microsystems, a
California corporation (the "Company"). 550,000 of the Shares are issuable upon
the exercise of nonstatutory stock options and incentive stock options granted
under the Company's 1993 Employee Stock Option Plan (the "Employee Plan") and
100,000 of the Shares are issuable upon the exercise of stock options granted
under the Company's 1993 Directors' Stock Option Plan (the "Directors' Plan",
and collectively with the Employee Plan, the "Plans").
We have examined originals or copies certified or otherwise identified to
our satisfaction as being true copies of such corporate records of the Company
and other documents as we have deemed necessary for the purpose of this opinion.
On the basis of the foregoing, and in reliance thereon and based on our
consideration of such other matters of fact and questions of law as we have
deemed relevant in the circumstances, we are of the opinion that, subject to
compliance with applicable state
EXHIBIT 5
Page 1
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[ALLEN,MATKINS,LECK,GAMBLE & MALLORY LETTERHEAD]
Board of Directors
Alpha Microsystems
Page 2
securities and "Blue Sky" laws, the Shares will be, when issued in accordance
with the terms and conditions of the Plans, validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Company's
Registration Statement on Form S-8 covering the Shares.
Very truly yours,
/s/ALLEN, MATKINS, LECK, GAMBLE & MALLORY
Allen, Matkins, Leck, Gamble & Mallory
EXHIBIT 5
Page 2
<PAGE> 1
ALPHA MICROSYSTEMS
1993 EMPLOYEE STOCK OPTION PLAN
1. PURPOSE
The Plan is intended to provide incentive to key employees of the
Corporation and its Subsidiaries, to encourage proprietary interest in the
Corporation, to encourage such key employees to remain in the employ of the
Corporation and its Subsidiaries and to attract new employees with outstanding
qualifications.
2. DEFINITIONS
Unless otherwise defined herein or the context otherwise requires, the
capitalized terms used herein shall have the following meanings:
(a) "Administrator" shall mean the Board or the Committee, whichever
shall be administering the Plan from time to time in the discretion of
the Board, as described in Section 4 of the Plan.
(b) "Board" shall mean the Board of Directors of the Corporation.
(c) "Change in Control of the Corporation" shall mean a change in
control of a nature that would be required to be reported in response to
Item l of Form 8-K required to be filed pursuant to the Securities
Exchange Act of 1934, as amended ("1934 Act"); provided that, without
limitation, such a change in control shall be deemed to have occurred
if:
(i) the Corporation shall sell, transfer, or otherwise dispose
of fifty percent (50%) or more of its assets and properties
(calculated on the basis of book value); or
(ii) any "person" (as such term is used in Sections 13(d) and
14(d) of the 1934 Act), other than the Corporation, is or becomes the
"beneficial owner" (as defined in Rule l3d-3 under the 1934 Act),
directly or indirectly, of securities of the Corporation representing
thirty percent (30%) or more of the combined voting power of the
Corporation's then outstanding securities; or
(iii) during the period of two (2) consecutive years during the
term of this Plan, individuals who at the beginning of such period
constitute the Board cease for any reason to constitute at least a
majority thereof, unless the election of each director who was not a
director at the beginning of such period has been approved in advance
by directors representing at least two-thirds of the directors then
in office who were directors at the beginning of the period.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended.
EXHIBIT 10
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(e) "Committee" shall mean the committee appointed by the Board in
accordance with Section 4 of the Plan.
(f) "Common Stock" shall mean, unless otherwise specifically
provided, the common stock of the Corporation and any class of common
shares into which such common stock may hereafter be converted.
(g) "Corporation" shall mean Alpha Microsystems, a California
corporation.
(h) "Disability" shall mean such physical or mental condition
affecting an Optionee as determined by the Administrator in its sole
discretion.
(i) "Disinterested Person" shall mean a director of the Company (i)
who either (A) was not during one year prior to service as an
administrator of the Plan granted or awarded equity securities pursuant
to the Plan or any of the Company or any of its affiliates entitling the
participants therein to acquire equity securities of the Company or any
of its affiliates except as permitted by Rule 16b-3(c) (2) (i); or (B)
who is otherwise considered to be a "disinterested person" in accordance
with Rule 16b-3(c) (2) (i), or any other applicable rules, regulations
or interpretations of the Securities and Exchange Commission; and (ii)
who either (A) is not a current employee of the Company, is not a former
employee of the Company receiving compensation for prior services (other
than benefits under a tax qualified pension plan), was not an officer of
the Company or an affiliate at any time, and is not currently receiving
compensation for personal services in any capacity other than as a
director, or (B) is otherwise considered an outside director for
purposes of Section 162(m) of the I.R.C.
(j) "Employee" shall mean an individual who is employed (within the
meaning of Section 3401 of the Code and the regulations thereunder) by
the Corporation or a Subsidiary (i.e., an individual with respect to
whom income taxes must be withheld from compensation). Directors who are
employed by the Corporation or a Subsidiary are considered to be
"Employees" for purposes of this Plan.
(k) "Exercise Price" shall mean the price per Share of Common Stock,
determined by the Administrator, at which an Option may be exercised.
(l) "Fair Market Value" shall mean the value of one (1) Share of
Common Stock, determined as follows:
(1) If the Shares are traded on an exchange or the National
Market System ("NMS") of the NASDAQ System, (A) if listed on an
exchange, the closing price as reported or as composite transactioned
on the date of valuation or, if no sale occurred on that date, then
the mean between the closing bid and asked prices on such exchange on
such date, and (B) if traded on the NMS, the last sales price on the
date of valuation or, if no sale occurred on such date, the mean
between the highest bid and lowest asked prices as of the close of
business on the date of valuation, as reported in the NASDAQ System;
EXHIBIT 10
Page 2
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(2) If the Shares are traded over-the-counter on the NASDAQ
System, the mean between the bid and asked prices on the NASDAQ
System at the close of business on the date of valuation; and
(3) If neither (1) nor (2) applies, the Fair Market Value as
determined by the Administrator in good faith. Such determination
shall be conclusive and binding on all persons.
If the date of valuation is not a business day, the price on the last
business day preceding the date of valuation shall be utilized.
(m) "Incentive Stock Option" shall mean an option described in
Section 422(b) of the Code.
(n) "Nonstatutory Stock Option" shall mean an option not described in
Section 422(b), 423(b) or 424(b) of the Code.
(o) "Option" shall mean any stock option granted pursuant to the
Plan. All Options shall be granted on the date the Administrator takes
the necessary action to approve the grant. However, if the minutes or
appropriate resolution of the Administrator provide that an Option is to
be granted as of another date, the date of grant shall be that other
date.
(p) "Option Agreement" shall mean a written stock option agreement
evidencing a particular Option.
(q) "Optionee" shall mean an Employee who has received an Option.
(r) "Plan" shall mean this Alpha Microsystems 1993 Employee Stock
Option Plan, as it may be amended from time to time.
(s) "Purchase Price" shall mean the Exercise Price times the number
of Shares with respect to which an Option is exercised.
(t) "Retirement" shall mean the voluntary cessation of employment by
an Employee after qualifying for early or normal retirement under any
pension plan or profit sharing or stock bonus plan of the Corporation or
Subsidiary. If an Employee is not covered by any such plan, "Retirement"
shall mean voluntary termination of employment after the Employee has
attained age sixty-five (65) and after the employee has attained the
tenth (10th) anniversary of his or her last preceding date of hire.
(u) "Share" shall mean one (1) share of Common Stock, adjusted in
accordance with Section 10 of the Plan (if applicable).
(v) "Subsidiary" shall mean any corporation at least fifty percent
(50%) of the total combined voting power of which is owned by the
Corporation or by another Subsidiary.
EXHIBIT 10
Page 3
<PAGE> 4
3. EFFECTIVE DATE
The Plan was adopted by the Board effective August 27, 1993, subject to
the approval of the Corporation's stockholders pursuant to Section 15 hereof.
The Plan shall terminate as provided in Section 9 below.
4. ADMINISTRATION
The Plan shall be administered, by a Committee of Disinterested Persons
which shall be appointed by the Board. The Committee shall consist of not less
than two (2) members of the Board. The Board may from time to time remove
members from, or add members to, the Committee. Vacancies on the Committee,
however caused, shall be filled by the Board. The Board shall appoint one of the
members of the Committee as Chairman. The Administrator shall hold meetings at
such times and places as it may determine. Acts of a majority of the
Administrator at which a quorum is present, or acts reduced to or approved in
writing by the unanimous consent of the members of the Administrator, shall be
the valid acts of the Administrator.
The Administrator shall from time to time at its discretion select the
Employees who are to be granted Options, determine the number of Shares to be
optioned to each Optionee and designate such Options as Incentive Stock Options
or Nonstatutory Stock Options. The interpretation and construction by the
Administrator of any provisions of the Plan or of any Option granted thereunder
shall be final. No member of the Administrator shall be liable for any action or
determination made in good faith with respect to the Plan or any Option granted
thereunder.
5. PARTICIPATION
(a) Eligibility. The Optionees shall be those Employees of the
Corporation to whom Options may be granted from time to time by the
Administrator. The Administrator pursuant to this Plan may grant Incentive Stock
Options and Nonstatutory Stock Options to Employees.
(b) Ten-Percent Shareholders. An Employee who owns more than ten percent
(10%) of the total combined voting power of all classes of outstanding stock of
the Corporation, its parent or any of its Subsidiaries shall not be eligible to
receive an Incentive Stock Option unless (i) the Exercise Price of the Shares
subject to such Incentive Stock Option is at least one hundred ten percent
(110%) of the Fair Market Value of such Shares on the date of grant, and (ii)
such Incentive Stock Option by its terms shall not be exercisable more than five
(5) years from the date of grant.
(c) Stock Ownership. For purposes of Section 5(b) above, in determining
stock ownership, an Employee shall be considered as owning the stock owned,
directly or indirectly, by or for his or her brothers and sisters, spouse,
ancestors and lineal descendants. Stock owned, directly or indirectly, by or for
a corporation, partnership, estate or trust shall be considered as being owned
proportionately by or for its shareholders, partners or beneficiaries. Stock
with respect to which such Employee holds an Option shall not be counted.
EXHIBIT 10
Page 4
<PAGE> 5
(d) Outstanding Stock. For purposes of Section 5(b) above, "outstanding
stock" shall include all stock actually issued and outstanding immediately after
the grant of the Incentive Stock Option to the Optionee. "Outstanding stock"
shall not include shares authorized for issue under outstanding Options held by
the Optionee or by any other person.
(e) In no case shall any person be granted in any one-year period
Options to purchase in excess of 200,000 shares.
6. STOCK
The stock subject to Options granted under the Plan shall be Shares of
the Corporation's authorized but unissued or reacquired Common Stock. The
aggregate number of Shares which may be issued upon exercise of Options under
the Plan shall not exceed Five Hundred Fifty Thousand (550,000). The number of
Shares subject to Options outstanding at any time shall not exceed the number of
Shares remaining available for issuance under the Plan. Whenever an Optionee's
rights to exercise an Option as to any Shares shall cease for any reason before
he or she has exercised such Option as to such Shares, the Option shall be
deemed terminated to that extent and such Shares shall again be subject to
Option under the Plan. The limitations established by this Section 6 shall be
subject to adjustment in the manner provided in Section 10 hereof upon the
occurrence of an event specified therein.
7. TERMS AND CONDITIONS OF OPTIONS
(a) Stock Option Agreements. Options shall be evidenced by written
Option Agreements in such form as the Administrator shall from time to time
determine. Such Option Agreements shall comply with and be subject to the terms
and conditions set forth herein. Each Option shall state whether it is an
Incentive Stock Option or a Nonstatutory Stock Option
(b) Optionee's Undertaking. Each Optionee shall agree to remain in the
employ of the Corporation or a Subsidiary and to render services for a period as
shall be determined by the Administrator, from the date of the granting of the
Option, but such agreement shall not impose upon the Corporation or its
Subsidiaries any obligation to retain the Optionee for any period.
(c) Number of Shares. Each Option shall state the number of Shares to
which it pertains and shall provide for the adjustment thereof in accordance
with the provisions of Section 10 hereof.
(d) Exercise Price. Each Option shall state the Exercise Price. The
Exercise Price in the case of any Incentive Stock Option shall not be less than
the Fair Market Value on the date of grant and, in the case of an Incentive
Stock Option granted to an Optionee described in Section 5(b) hereof, shall not
be less than one hundred ten percent (110%) of the Fair Market Value on the date
of grant. The Exercise Price in the case of any Nonstatutory Stock Option shall
not be less than fifty percent (50%) nor greater than one hundred percent (100%)
of the Fair Market Value on the date of grant. The Exercise Price shall be
subject to adjustment as provided in Section 10 hereof.
EXHIBIT 10
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<PAGE> 6
(e) Medium and Time of Payment. The Purchase Price shall be payable in
full in United States dollars or by certified check upon the exercise of the
Option; provided, however, that if the applicable Option Agreement so provides,
or the Administrator, in its sole discretion otherwise approves thereof, the
Purchase Price may be paid (i) by the surrender of Shares in good form for
transfer, owned by the person exercising the Option and having a Fair Market
Value on the date of exercise equal to the Purchase Price, or (ii) in any
combination of cash and Shares, as long as the sum of the cash so paid and the
Fair Market Value of the Shares so surrendered equals the Purchase Price.
In the event the Corporation determines that it is required to withhold
state or Federal income tax as a result of the exercise of an Option, as a
condition to the exercise thereof, an Optionee must make arrangements
satisfactory to the Corporation to enable it to satisfy such withholding
requirements. Payment of such withholding requirements may be made, in the
discretion of the Administrator, (i) in cash, (ii) by delivery of Shares
registered in the name of Optionee, or by the Corporation not issuing such
number of Shares subject to the Option having a Fair Market Value at the time of
exercise equal to the amount to be withheld, or (iii) any combination of (i) and
(ii) above.
(f) Term and Non-transferability of Options. Each Option shall state the
time or times when all or part thereof becomes exercisable. No Option shall be
exercisable more than ten (10) years (or less, in the discretion of the
Administrator) from the date it was granted and no Incentive Stock Option
granted to an Optionee described in Section 5(b) hereof shall be exercisable
after the expiration of five (5) years (or less, in the discretion of the
Administrator) from the date it was granted. During the lifetime of the
Optionee, the Option shall be exercisable only by the Optionee and shall not be
assignable or transferable. In the event of the Optionee's death, the Option
shall not be transferable by the Optionee other than by will or the laws of
descent and distribution. Any other attempted alienation, assignment, pledge,
hypothecation, attachment, execution or similar process, whether voluntary or
involuntary, with respect to all or any part of any Option or right hereunder,
shall be null and void and, at the Corporation's option shall cause all of the
Optionee's rights under the Option to terminate.
(g) Cessation of Employment; etc. After an Optionee ceases to be an
Employee, his/her rights to exercise any unexercised Option then held by the
Optionee shall be determined as provided in this Section 7(g). No Option,
however, may be exercised after the Optionee ceases to be an Employee except to
the extent that the Option was exercisable at the time of such cessation. No
Option may be exercised after its term expires or is otherwise cancelled.
(i) Retirement. If an Optionee ceases to be an Employee because of
Retirement (and not on account of misconduct as determined below), such
Optionee may, subject to the restrictions referred to in Section 7(f)
above, exercise the Option at any time within ninety (90) days after
cessation of employment, but, except as provided in the applicable
Option Agreement, only to the extent that, at the date of cessation of
employment, the Optionee's right to exercise such Option had accrued
pursuant to the terms of the applicable Option Agreement and had not
previously been exercised.
EXHIBIT 10
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<PAGE> 7
(ii) Death. If an Optionee dies while he or she is an Employee or
having ceasing to be an Employee but during the period during which he
or she could have exercised the Option under this Section 7, and has not
fully exercised the Option, then the Option may be exercised in full,
subject to the restrictions referred to in Section 7(f) above, at any
time within twelve (12) months after the Optionee's death by the
executor or administrator of his or her estate or by any person or
persons who have acquired the Option directly from the Optionee by
bequest or inheritance, but, except as otherwise provided in the Option
Agreement, only to the extent that, at the date of death, the Optionee's
right to exercise such Option had accrued and had not been forfeited
pursuant to the terms of the applicable Option Agreement and had not
been previously exercised.
(iii) Disability. If an Optionee ceases active service as an Employee
by reason of Disability, such Optionee shall have the right, subject to
the restrictions referred to in Section 7(f) above, to exercise the
Option at any time within twelve (12) months after such cessation of
employment, but, except as provided in the applicable Option Agreement,
only to the extent that, at the date of such cessation of employment,
the Optionee's right to exercise such Option had accrued pursuant to the
terms of the applicable Option Agreement and had not previously been
exercised.
(iv) Misconduct. If an Optionee resigns or is discharged or
terminated on account of misconduct, his or her Option shall terminate
and shall no longer be exercisable upon notice of such resignation,
discharge or termination. An Optionee shall be considered to have been
discharged or terminated for misconduct if he or she resigns, is
discharged or is otherwise terminated on account of (a) conviction of a
felony, (b) misappropriation of the assets of the Corporation or any
Subsidiary or affiliate, (c) continued or repeated insobriety or illegal
drug use, (d) continued or repeated absence from service during usual
working hours of the Optionee's position for reasons other than
Disability or sickness, (e) refusal to carry out the reasonable
directions of the Board or the chief executive officer of the
Corporation or of any other person designated by such chief executive
officer, (f) the commission of an act of embezzlement, fraud, dishonesty
or deliberate disregard of the rules of the Corporation which resulted
in loss, damage or injury to the Corporation, (g) any unauthorized
disclosure of any of the trade secrets or confidential information of
the Corporation, (h) the engagement of any conduct which constitutes
unfair competition with the Corporation or a breach of the duty of
loyalty to the Corporation, (i) the inducement of any customer of the
Corporation to break any contract with the Corporation, or (j) the
inducement of any principal for whom the Corporation acts as agent to
terminate such agency relationship. If Optionee resigns or is discharged
or terminated on account of misconduct, neither the Optionee nor his/her
estate shall be entitled to exercise any Option hereunder with respect
to any Shares whatsoever after such resignation, discharge or
termination, whether or not after such resignation, discharge or
termination the Optionee may receive payment from the Corporation for
vacation pay, for services rendered prior to resignation, discharge or
termination, for services for the day on which resignation, discharge or
termination occurs, for salary in lieu of notice, or for other benefits.
Any determination made by the Administrator that the Optionee resigned
or was discharged or terminated for misconduct shall be binding on the
Optionee.
EXHIBIT 10
Page 7
<PAGE> 8
(v) Other Reasons. If an Optionee ceases to be an Employee for any
reason other than those mentioned above in subsections (i), (ii),
(iii) or (iv), the Optionee shall have the right, subject to the
restrictions referred to in Section 7 (f) above, to exercise the Option
at any time within thirty (30) days following such cessation, discharge
or termination, but, except as otherwise provided in the applicable
Option Agreement, only to the extent that, at the date of cessation,
discharge or termination, the Optionee's right to exercise such Option
had accrued pursuant to the terms of the applicable Option Agreement and
had not previously been exercised.
An Optionee's employment with the Corporation shall not be considered as having
been terminated while the Optionee is on military or sick leave or other bona
fide leave of absence (such as temporary employment by the Government) if the
period of such leave does not exceed ninety (90) days, or, if longer, so long as
the Optionee's right to reemployment with the Corporation is guaranteed either
by statute or by contract. Where the period of such leave exceeds ninety (90)
days and where the Optionee's rights to reemployment is not guaranteed either by
statute or by contract, the Optionee's employment will be deemed to have
terminated on the ninety-first (91st) day of such leave.
(h) Rights as a Shareholder. No one shall have rights as a shareholder
with respect to any Shares covered by his or her Option until the date of the
issuance of a stock certificate for such Shares. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cab, securities or other
property), distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except a provided in Section 10
hereof.
(i) Modification Extension and Renewal of Options. Within the
limitations of the Plan, the Administrator may modify, extend or renew
outstanding Options or accept the cancellation of outstanding Options (to the
extent not previously exercised) for the granting of new Options in substitution
therefor. The foregoing notwithstanding, no modification of an Option shall,
without the consent of the Optionee, alter or impair any rights or obligations
under any Option previously granted.
(j) Other Provisions. The Option Agreements authorized under the Plan
may contain such other provisions not inconsistent with the terms of the Plan as
the Administrator shall deem advisable (including, without limitation,
restrictions upon the exercise of the Option or subjecting the shares issued
pursuant to the exercise of an Option to rights of repurchase by the
Corporation).
(k) Substitution of Option. Notwithstanding any inconsistent provisions
or limits under the Plan, in the event the Corporation acquires (whether by
purchase, merger or otherwise) all or substantially all of the outstanding
common stock or assets of another corporation by any reorganization or other
transaction qualifying under Section 424 of the Code, the Administrator may, in
accordance with the provisions of that Section, substitute options under the
Plan for options under the Plan of the acquired company provided (i) the excess
of the aggregate Fair Market Value of the shares subject to an Option
immediately after the substitution over the aggregate option price of such
shares is not more than the similar excess immediately before such
EXHIBIT 10
Page 8
<PAGE> 9
substitution and (ii) the new option does not give persons additional benefits,
including any extension of the exercise period.
8. LIMITATION ON ANNUAL AWARDS
The aggregate Fair Market Value (determined as of the time the Option is
granted) of stock for which Incentive Stock Options exercisable for the first
time by an Optionee may be granted during any calendar year (under all incentive
stock options plans of the Corporation and its Subsidiaries) may not exceed
$100,000, but the value of stock for which Incentive Stock Options may be
granted to an Optionee in a given year may exceed $100,000. If the $100,000
limit is exceeded, only the portion of the Incentive Stock Option that exceeds
that limit shall constitute a Nonstatutory Stock Option but this shall not cause
the terms of the Option Agreement which created the Incentive Stock Option to
cease to apply or be modified.
9. TERM OF PLAN
Options may be granted pursuant to the Plan until the expiration of the
Plan on August 27, 2003.
10. RECAPITALIZATIONS
Subject to any required action by stockholders, the number of Shares
covered by the Plan as provided in Section 6 hereof, the number of Shares
covered by each outstanding Option and the Exercise Price thereof shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares resulting from a subdivision or consolidation of Shares or the payment of
a stock dividend (but only of Common Stock) or any other increase or decrease in
the number of issued Shares effected without receipt of consideration by the
Corporation.
Subject to any required action by stockholders, if the Corporation is
the surviving corporation in any merger or consolidation, each outstanding
Option shall pertain and apply to the securities to which a holder of the number
of Shares subject to the Option would have been entitled. If the Corporation is
not the surviving corporation in any merger or consolidation, then any
outstanding Options shall be fully vested and exercisable until five (5) days
prior to such merger or consolidation (but shall terminate thereafter) unless
provisions are made in connection with such transaction for the continuance of
the Plan or the assumption or the substitution for outstanding Options of new
options covering the stock of a successor employer corporation, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares and prices. A dissolution or liquidation of the Corporation shall cause
each outstanding Option to terminate.
To the extent that the foregoing adjustments relate to securities of the
Corporation, such adjustments shall be made by the Administrator, whose
determination shall be conclusive and binding on all persons.
Except as expressly provided in this Section 10, the Optionee shall have
no rights by reason of any subdivision or consolidation of shares of stock of
any class, the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or
EXHIBIT 10
Page 9
<PAGE> 10
by reason of any dissolution, liquidation, merger or consolidation or spin-off
of assets or stock of another corporation, and any issue by the Corporation of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or Exercise Price of Shares subject to an Option.
The grant of an Option pursuant to the Plan shall not affect in any way
the right or power of the Corporation to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
11. SECURITIES LAW REQUIREMENTS
(a) Securities Act Requirements. No Option granted pursuant to this Plan
shall be exercisable in whole or in part, and the Corporation shall not be
obligated to sell any Shares subject to any such Option, if such exercise and
sale would, in the opinion of counsel for the Corporation, violate the
Securities Act of 1933 (or other Federal or State statutes having similar
requirements) as it may be in effect at that time.
As a condition to the issuance of any Shares upon exercise of an Option
under this Plan, the Administrator may require the Optionee to furnish a written
representation that he is acquiring the shares for investment and not with a
view to distribution to the public. Such representations shall be required in
cases where, in the opinion of the Administrator, they are necessary to enable
the Corporation to comply with the provisions of the Securities Act of 1933, and
any shareholder who gives such representation shall be released from it at such
a time as the shares to which it applies are registered pursuant to the
Securities Act of 1933.
(b) Listing and Regulatory Requirements. Each Option shall be subject to
the further requirements that, if at any time the Administrator shall determine
in its discretion that the listing or qualification of the shares of stock
subject to such Option under any securities exchange requirements or under any
applicable law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition of, or in connection with, the granting
of such Option or the issue of Shares thereunder, such Option may not be
exercised in whole or in part unless and until such listing, qualification,
consent or approval shall have been effected or obtained free of any conditions
not acceptable to the Administrator.
(c) Section 16. With respect to persons subject to Section 16 of the
1934 Act, transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the 1934 Act. To the
extent any provision of the Plan or action by the Administrator fails to so
comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Administrator.
12. CHANGE IN CONTROL
In the event any Change in Control of the Corporation should occur, then
the exercise dates of all options granted pursuant to this Plan shall
automatically accelerate and all options
EXHIBIT 10
Page 10
<PAGE> 11
granted pursuant to this Plan shall become exercisable in full notwithstanding
any other provision of this Plan or of any outstanding options grated hereunder.
To the extent the Code would not permit the provisions of the foregoing
paragraph to apply to any Incentive Stock Option granted under this Plan, then
such Option, immediately upon the occurrence of the event described in the
foregoing paragraph, shall be treated for all purposes of the Plan as a
Nonstatutory Stock Option and shall be immediately exercisable as provided in
the foregoing paragraph. Notwithstanding the foregoing, in no event shall any
Option be exercisable after the date of termination of the exercise period of
such Option specified in Section 7(f) of this Plan.
13. AMENDMENT OF THE PLAN
The Board may from time to time, with respect to any Shares at the time
not subject to Options, suspend or discontinue the Plan or revise or amend it in
any respect whatsoever except that, without the approval of the Corporation's
shareholders, no such revision or amendment shall:
(a) Increase the number of Shares subject to the Plan;
(b) Change the designation in Section 5 hereof with respect to the
classes of persons eligible to receive Options; or
(c) Amend this Section 13 to defeat its purpose.
l4. APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of Common Stock
pursuant to the exercise of an Option will be used for general corporate
purposes.
15. APPROVAL OF SHAREHOLDERS
The Plan shall be subject to approval by the affirmative vote of the
holders of a majority of the outstanding shares present and entitled to vote at
the first annual meeting of shareholders of the Corporation following the
adoption of the Plan, and in no event later than August 27,1994. Prior to such
approval, Options may be granted but shall not be exercisable, not even in the
event of a Change in Control of the Corporation.
EXHIBIT 10
Page 11
<PAGE> 12
16. EXECUTION
To record the adoption of the Plan by the Board on August 27, 1993, and
the amendment of the Plan by the Board on April 14, 1994, the Corporation has
caused its authorized officers to affix the corporate name and seal hereto.
ALPHA MICROSYSTEMS, a California
corporation
By: /s/DOUGLAS J. TULLIO
Name: Douglas J. Tullio
Title: President and Chief
Executive Officer
By: /s/JOHN F. GLADE
Name: John F. Glade
Title: Vice President, Engineering
& Mfg. and Secretary
[Seal]
EXHIBIT 10
Page 12
<PAGE> 1
ALPHA MICROSYSTEMS
1993 DIRECTORS' STOCK OPTION PLAN
1. PURPOSE
The purpose of the Plan is to assist Alpha Microsystems in attracting
and retaining talented individuals to serve as Directors of the Corporation, to
provide additional compensation to non-employee directors for their services and
to unify the interests of Directors and shareholders through increased Director
share ownership.
2. DEFINITIONS
Unless otherwise defined herein or the context otherwise requires, the
capitalized terms used herein shall have the following meanings:
(a) "Additional Grant" shall mean any Option granted pursuant to
Section 4(b)(ii).
(b) "Automatic Grant Date" shall mean the date on which an Option is
granted hereunder pursuant to Section 4(b).
(c) "Board" shall mean the Board of Directors of the Corporation.
(d) "Change in Control of the Corporation" shall mean a change in
control of a nature that would be required to be reported in response to
Item I of Form 8-K required to be filed pursuant to the Securities
Exchange Act of 1934, as amended ("1934 Act"); provided that, without
limitation, such a change in control shall be deemed to have occurred
if:
(i) the Corporation shall sell, transfer, or otherwise dispose
of fifty percent (50%) or more of its assets and properties
(calculated on the basis of book value); or
(ii) any "person" (as such term is used in Sections 13(d) and
14(d) of the 1934 Act), other than the Corporation, is or becomes the
"beneficial owner"' (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, of securities of the Corporation representing
thirty percent (30%) or more of the combined voting power of the
Corporation's then outstanding securities; or
(iii) during the period of two (2) consecutive years during the
term of this Plan, individuals who at the beginning of such period
constitute the Board cease for any reason to constitute at least a
majority thereof, unless the election of each director who was not a
director at the beginning of such period has been approved in advance
by directors representing at least two-thirds of the directors then
in office who were directors at the beginning of the period.
EXHIBIT 10.1
Page 1
<PAGE> 2
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Common Stock" shall mean, unless otherwise specifically
provided, the common stock of the Corporation and any class of common
shares into which such common stock may hereafter be converted.
(g) "Corporation" shall mean Alpha Microsystems, a California
corporation.
(h) "Director" shall mean a person who is a member of the Board.
(i) Disability" shall mean such physical or mental condition
affecting an Optionee as determined by the Board in its sole discretion.
(j) "Exercise Price" shall mean the price per Share of Common Stock,
at which an Option may be exercised.
(k) "Fair Market Value" shall mean the value of one (l) Share of
Common Stock, determined as follows:
(l) If the Shares are traded on an exchange or the National
Market System ("NMS") of the NASDAQ System, (A) if listed on an
exchange, the closing price as reported or as composite transaction
on the date of valuation or, if no sale occurred on that date, then
the mean between the closing bid and asked prices on such exchange on
such date, and (B) if traded on the NMS, the last sales price on the
date of valuation or, if no sale occurred on such date, the mean
between the highest bid and lowest asked prices as of the close of
business on the date of valuation, as reported on the NASDAQ System;
and
(2) If the Shares are traded over-the-counter on the NASDAQ
System, the mean between the bid and asked prices on the NASDAQ
System at the close of business on the date of valuation. If the date
of valuation is not a business day, the price on the last business
day preceding the date of valuation shall be utilized.
(l) "Initial Grant" shall mean any Option granted pursuant to Section
4(b) (i).
(m) "Option" shall mean any stock option granted pursuant to the
Plan.
(n) "Option Agreement" shall mean a written stock option agreement
evidencing a particular Option.
(o) "Optionee" shall mean a Director who has received an Option.
(p) "Plan" shall mean this Alpha Microsystems 1993 Directors' Stock
Option Plan, as it may be amended from time to time.
(q) "Phase Price" shall mean the Exercise Price times the number of
Shares with respect to which an Option is exercised.
EXHIBIT 10.1
Page 2
<PAGE> 3
(r) "Share" shall mean one (l) share of Common Stock, adjusted in
accordance with Section 9 of the Plan (if applicable).
3. EFFECTIVE DATE
The Plan was adopted by the Board effective April 14,1994, subject to
the approval of the Corporation's shareholders pursuant to Section 15 hereof.
The Plan shall terminate as provided in Section 8 below.
4. PARTICIPATION
(a) Eligibility. All Directors who are not employees of the
Corporation or any subsidiary of the Corporation shall be eligible to
receive automatic grants of Option.
(b) Automatic Grants.
(i) Initial Grant. An Option to purchase 10,000 Shares will be
granted automatically to:
(A) each person who is a Director on the date the Plan is
approved by the shareholders of the Company, provided such
Director is not an employee of the Company and is elected to
serve as a Director for the following year;
(B) each person who thereafter becomes a Director, as of the
date he or she first becomes a director if such date is the date
of an annual meeting of shareholders, or otherwise on the date of
the next succeeding annual meeting of shareholders of the
Company, provided that the Director is not an employee of the
Company and is re-elected.
(ii) Additional Grants. Additional Options to purchase 2,500
Shares will be granted automatically to each non-employee Director
each year thereafter on the date of the Annual Meeting of
Shareholders, providing that the Director is reelected to serve as a
Director for the following year.
5. OPTION TERMS
(a) Option Price. The purchase price of each Share under each of the
Options shall be equal to one hundred percent (100%) of the Fair Market
Value of a Share on the Automatic Grant Date.
(b) Period of Exercise.
(i) Initial Grants. Options granted as of the date this Plan is
approved by the Shareholders to a Director who has been a Director of
the Company for at least three (3) years prior to the date such
shareholder approval is obtained shall be immediately exercisable.
Options granted as of the date this Plan is approved by the
Shareholders to a Director who has not been a Director of the Company
for at least three (3) years prior to
EXHIBIT 10.1
Page 3
<PAGE> 4
the date such shareholder approval is obtained, and Options granted
upon a Director's first election to the Board, shall become
exercisable a follows: (A) fifty percent (50%) on the day immediately
prior to the first annual meeting of shareholders after the date of
grant; (B) twenty-five percent (25%) on the day immediately prior to
the second annual meeting of shareholders after the date of grant;
and (C) twenty-five percent (25%) on the day immediately prior to the
third annual meeting of shareholders after the date of grant. Subject
to Section 5(e) each such Option shall continue to be exercisable for
a period of five (5) years after the date of grant
(ii) Additional Grants. Automatic Options granted to a Director
subsequent to Initial Grants shall become exercisable as follows: (A)
fifty percent (50%) on the day immediately prior to the first annual
meeting of shareholders after the date of grant; (B) twenty-five
percent (25%) on the day immediately prior to the second annual
meeting of shareholders after the date of grant; and (C) twenty-five
percent (25%) on the day immediately prior to the third annual
meeting of shareholders after the date of grant Subject to Section
5(e) each such Option shall continue to be exercisable for a period
of five (5) years after the date of grant.
(c) Medium and Time of Payment. The Purchase Price shall be payable
in full in United States dollars or by certified check upon the exercise
of the Option; or by (i) the surrender of Shares in good form for
transfer, owned by the person exercising the Option and having a Fair
Market Value on the date of exercise equal to the Purchase Price, or
(ii) in any combination of cash and Shares, as long as the sum of the
cash so paid and the Fair Market Value of the Shares so surrendered
equals the Purchase Price.
(d) Non-transferability of Options. During the lifetime of the
Optionee, the Option shall be exercisable only by the Optionee and shall
not be assignable or transferable. In the event of the Optionee's death,
the Option shall not be transferable by the Optionee other than by will
or the laws of descent and distribution. Any other attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar
process, whether voluntary or involuntary, with respect to all or any
part of any Option or right hereunder, shall be null and void and, at
the Corporation's option shall cause all of the Optionee's rights under
the Option to terminate.
(e) Cessation of Directorship. After a Optionee ceases to be a
Director, his or her rights to exercise any unexercised Option then held
by the Optionee shall be determined as provided in this Section 5(e). No
Option, however, may be exercised after the Optionee ceases to be a
Director except to the extent that the Option was exercisable at the
time of such cessation. No Option may be exercised after its term
expires or is otherwise cancelled.
(i) Death. If an Optionee dies while he or she is an Director
or having ceasing to be an Director but during the period during
which he or she could have exercised the Option under this Section 5,
and has not fully exercised the Option, then the Option may be
exercised in full, at any time within twelve (12) months after the
Optionee's death by the executor or administrator of his or her
estate or by any person or persons who have acquired the Option
directly from the Optionee by bequest or inheritance, but only to the
EXHIBIT 10.1
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<PAGE> 5
extent that, at the date of death, the Optionee's right to exercise
such Option had accrued and had not been previously exercised.
(ii) Disability. If an Optionee ceases active service as a
Director by reason of Disability, such Optionee shall have the right,
to exercise the Option at any time within twelve (12) months after
such cessation of employment, but only to the extent that, at the
date of such cessation of employment, the Optionee's right to
exercise such Option had accrued pursuant to the terms of the
applicable Option Agreement and had not previously been exercised.
(iii) Other Reasons. If an Optionee ceases to be a Director for
any reason other than those mentioned above in subsections (i), (ii)
or (iii), the Optionee shall have the right, subject to the
restrictions referred to in this Section 5(e) to exercise the Option
at any time within thirty (30) days following such cessation,
discharge or termination, but, only to the extent that, at the date
of cessation, discharge or termination, the Optionee's right to
exercise such Option had accrued pursuant to the terms of the
applicable Option Agreement and had not previously been exercised.
(f) Rights as a Shareholder. No one shall have rights as a
shareholder with respect to any Shares covered by his or her Option
until the date of the issuance of a stock certificate for such Shares.
No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property), distributions or other
rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 9 hereof.
(g) Six-Month Holding Period. No Option nor any share issuable upon
exercise of any Option, may be sold or otherwise disposed of prior to
the date that is six (6) months and one (1) day following the Automatic
Grant Date.
6. STOCK
The stock subject to Options granted under the Plan shall be Shares of
the Corporation's authorized but unissued or reacquired Common Stock. The
aggregate number of Shares which may be issued upon exercise of Options under
the Plan shall not exceed One Hundred Thousand (100,000). The number of Shares
subject to Options outstanding at any time shall not exceed the number of Shares
remaining available for issuance under the Plan. Whenever an Optionee's rights
to exercise an Option as to any Shares shall cease for any reason before he or
she has exercised such Option as to such Shares, the Option shall be deemed
terminated to that extent and such Shares shall again be subject to Option under
the Plan. The limitations established by this Section 6 shall be subject to
adjustment in the manner provided in Section 9 hereof upon the occurrence of an
event specified therein.
7. STOCK OPTION AGREEMENTS
Options shall be evidenced by written Option Agreements consistent with
the terms of the Plan.
EXHIBIT 10.1
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<PAGE> 6
8. TERM OF PLAN
Options may be granted pursuant to the Plan until the expiration of the
Plan on August 27, 2003.
9. RECAPITALIZATIONS
Subject to any required action by shareholders, the number of Shares
covered by the Plan as provided in Section 6 hereof, the number of Shares
covered by each outstanding Option and the Exercise Price thereof shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares resulting from a subdivision or consolidation of Shares or the payment of
a stock dividend (but only of Common Stock) or any other increase or decrease in
the number of issued Shares effected without receipt of consideration by the
Corporation.
Subject to any required action by shareholders, if the Corporation is
the surviving corporation in any merger or consolidation, each outstanding
Option shall pertain and apply to the securities to which a holder of the number
of Shares subject to the Option would have been entitled. If the Corporation is
not the surviving corporation in any merger or consolidation, then any
outstanding Options shall be fully vested and exercisable until five days prior
to such merger or consolidation (but shall terminate thereafter) unless
provisions are made in connection with such transaction for the continuance of
the Plan or the assumption or the substitution for outstanding Options of new
options covering the stock of a successor employer corporation, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and land of
shares and prices. A dissolution or liquidation of the Corporation shall cause
each outstanding Option to terminate.
Except as expressly provided in this Section 9, the Optionee shall have
no rights by reason of any subdivision or consolidation of shares of stock of
any class, the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation, and any issue by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option
The grant of an Option pursuant to the Plan shall not affect in any way
the right or power of the Corporation to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
10. SECURITIES LAW REQUIREMENTS
(a) Securities Act Requirements. No Option granted pursuant to this Plan
shall be exercisable in whole or in part, and the Corporation shall not be
obligated to sell any Shares subject to any such Option, if such exercise and
sale would, in the opinion of counsel for the Corporation, violate the
Securities Act of 1933 (or other Federal or State statutes having similar
requirements) as it may be in effect at that time.
EXHIBIT 10.1
Page 6
<PAGE> 7
As a condition to the issuance of any Shares upon exercise of an Option
under this Plan, the Company may require the Optionee to furnish written
representation that he or she is acquiring the shares for investment and not
with a view to distribution to the public. Such representations shall be
required in cases where, in the opinion of the Company, they are necessary to
enable the Corporation to comply with the provisions of the Securities Act of
1933, and any shareholder who gives such representation shall be released from
it at such a time as the shares to which it applies are registered pursuant to
the Securities Act of 1933.
(b) Listing and Regulatory Requirements. Each Option shall be subject to
the further requirements that, if at any time the Company shall determine in its
discretion that the listing or qualification of the shares of stock subject to
such Option under any securities exchange requirements or under any applicable
law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the granting of
such Option or the issue of Shares thereunder, such Option may not be exercised
in whole or in part unless and until such listing, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Company.
(c) Section 16. Transactions under this Plan are intended to comply with
all applicable conditions of Rule 16b-3 or its successors under the 1934 Act. To
the extent any provision of the Plan fails to so comply, it shall be deemed null
and void, to the extent permitted by law and deemed advisable by the Company.
11. CHANGE IN CONTROL
In the event any Change in Control of the Corporation should occur, then
the exercise dates of all Options granted pursuant to this Plan shall
automatically accelerate and all Options granted pursuant to this Plan shall
become exercisable in full, notwithstanding any other provision of this Plan or
of any outstanding Options granted hereunder.
Notwithstanding the foregoing, in no event shall any Option be
exercisable after the date of termination of the exercise period of such Option
specified in Sections 5(b) and 5(e) of this Plan.
12. APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of Common Stock
pursuant to the exercise of an Option will be used for general corporate
purposes.
13. APPROVAL OF SHAREHOLDERS
The Plan shall be subject to approval by the affirmative vote of the
holders of a majority of the outstanding shares present and entitled to vote at
the first annual meeting of shareholders of the Corporation following the
adoption of the Plan, and in no event later than August 27, 1994.
EXHIBIT 10.1
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<PAGE> 8
14. AMENDMENT
The Board may amend, suspend, alter or terminate this Plan at any time;
provided, however, as follows:
(a) Unless required by applicable law, rule or regulation, the Board
shall not amend the Plan in the following respects without approval of
the amendment by a majority of the vote cast at a duly held shareholders
meeting at which a quorum representing a majority of all outstanding
voting stock of the Company is, either in person or by proxy, present
and voting on the amendment
(i) to reduce the Exercise Price;
(ii) to increase the maximum number of shares subject to Options
(except pursuant to the provisions of the Plan providing for
adjustments upon the occurrence of certain events);
(iii) to change the persons who may receive the Options pursuant
to the Plan, the date on which such Options shall be granted, or the
number of shares which shall be subject to each Initial Grant or
Additional Grant; or
(iv) to extend the maximum period during which the Options may
be exercised or to extend the term of the Plan.
(b) Unless required by applicable law, rule or regulation, no
amendment of the Plan or any Option shall, without the consent of the
Optionee holding such affected Option, be permitted if such amendment
would affect in a material and adverse manner an Option granted prior to
the date of such amendment; and
(c) The provisions of this Plan may not be amended more than one time
during any six-month period except for any amendments to conform with
changes in the Internal Revenue Code, the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder.
15. EXECUTION
To record the adoption of the Plan by the Board on April 14, 1994,
the Corporation has caused its authorized officers to affix the
corporate name and seal hereto.
EXHIBIT 10.1
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ALPHA MICROSYSTEMS, a California
corporation
By: /s/DOUGLAS J. TULLIO
Name: Douglas J. Tullio
Title: President and Chief Executive Officer
By: /s/JOHN F. GLADE
Name: John F. Glade
Title: Vice President, Engineering
& Mfg. and Secretary
[Seal]
EXHIBIT 10.1
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<PAGE> 1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the 1993 Employee Stock Option Plan and 1993
Directors' Stock Option Plan of Alpha Microsystems of our report dated
April 25, 1995, with respect to the consolidated financial statements and
schedule of Alpha Microsystems included in its Annual Report on Form 10-K for
the year ended February 26, 1995, filed with the Securities and Exchange
Commission.
/s/ERNST & YOUNG LLP
Ernst & Young LLP
Orange County, California
September 5, 1995
EXHIBIT 23.1
