<PAGE> 1
As filed with the Securities and Exchange Commission on January 31, 1997
Registration No. 333-___________
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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,
--------------------------------
1996 NONEMPLOYEE DIRECTOR STOCK COMPENSATION PLAN
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AND
---
EMPLOYEE STOCK PURCHASE PLAN,
-----------------------------
(Full Title of the Plans)
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)
(714) 957-8500
--------------
(Telephone number, including area code, of agent for service)
Copy to :
DEBRA DISON HALL, ESQ.
ALLEN, MATKINS, LECK, GAMBLE & MALLORY LLP
515 SOUTH FIGUEROA STREET, 7TH FLOOR
LOS ANGELES, CALIFORNIA 90071-3398
(213) 622-5555
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Proposed Maximum
Title of Securities to be Offering Price Per Proposed Maximum Amount of
Registered Amount to be Registered Share(1) Aggregate Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 825,000 Shares(2) $1-7/16 $1,185,938 $409
(No par value)
===================================================================================================================================
</TABLE>
(1) Based on the market price of Common Stock on January 28, 1997 in
accordance with Rule 457(c) and (h)(1) promulgated under the Securities
Act of 1933, as amended.
(2) The Alpha Microsystems 1993 Employee Stock Option Plan, as amended,
authorizes the issuance of a maximum of 925,000 shares. However, 550,000
of the shares which may ultimately be issued pursuant to such plan upon
exercise of options have already been registered pursuant to Form S-8
Registration Statement No. 33-62411. Thus, the additional 375,000 shares
authorized for issuance under such plan are being registered pursuant to
this Registration Statement, together with the 100,000 shares and 350,000
shares authorized for issuance under the 1996 Nonemployee Director Stock
Compensation Plan and the Employee Stock Purchase Plan, respectively.
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" or the "Registrant"),
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 25, 1996.
2. Quarterly Report on Form 10-Q for the quarterly
period ended November 24, 1996.
3. Current Report on Form 8-K dated August 10, 1996.
4. 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, 1996 Nonemployee Director Stock Compensation Plan and
Employee Stock Purchase Plan have been passed upon by Allen, Matkins, Leck,
Gamble & Mallory LLP, 18400 Von Karman, Fourth Floor Irvine, California 92612.
Marvin E. Garrett, a partner in the law firm of Allen,
Matkins, Leck, Gamble & Mallory LLP, beneficially owns 51,000 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.
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Pursuant to the Corporation's Articles of Incorporation, Bylaws and
indemnification agreements 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)
shall not apply to information required to be included in a
post-effective amendment by those paragraphs if such
information is contained in periodic reports filed with or
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<PAGE> 4
furnished to the Securities and Exchange Commission by the
Corporation pursuant to Section 13 or Section 15(d) 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) 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 30th
day of January, 1997.
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 James A. Sorensen, 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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/CLARK E. REYNOLDS Chairman of the Board January 30, 1997
- ----------------------------
Clark E. Reynolds
/s/DOUGLAS J. TULLIO President, Chief Executive January 30, 1997
- ---------------------------- Officer and Director
Douglas J. Tullio
/s/JOHN F. GLADE Vice President, Engineering January 30, 1997
- ---------------------------- and Manufacturing, Secretary
John F. Glade and Director
/s/JAMES A. SORENSEN Chief Financial Officer January 30, 1997
- ----------------------------
James A. Sorensen
/s/ROCKELL N. HANKIN Director January 30, 1997
- ----------------------------
Rockell N. Hankin
/S/RICHARD E. MAHMARIAN Director January 30, 1997
- ----------------------------
Richard E. Mahmarian
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
3.1 Restated Bylaws of Registrant
4.5 Alpha Microsystems 1993 Employee Stock Option Plan
(incorporated herein by reference to Exhibit 10 to the
Registration Statement on Form S-8 (Registration No.
33-62411) of Registrant)
4.6 First Amendment to Alpha Microsystems 1993 Employee
Stock Option Plan
4.7 Second Amendment to Alpha Microsystems 1993 Employee
Stock Option Plan
4.8 Alpha Microsystems 1996 Nonemployee Director Stock
Compensation Plan
4.9 First Amendment to Alpha Microsystems 1996 Nonemployee
Director Stock Compensation Plan
4.10 Alpha Microsystems Employee Stock Purchase Plan
5 Opinion of Allen, Matkins, Leck, Gamble & Mallory LLP
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EXHIBIT
NUMBER DESCRIPTION
23 Consent of Allen, Matkins, Leck, Gamble &
Mallory LLP (included as part of Exhibit 5
hereto)
23.1 Consent of Ernst & Young LLP
24 Power of Attorney (included at page 5 of the
Registration Statement)
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RESTATED
BYLAWS
OF
ALPHA MICROSYSTEMS,
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
Section l. PRINCIPAL OFFICES. The Board of Directors shall
fix the location of the principal executive office of the corporation at any
place within or outside the State of California. If the principal executive
office is located outside this state, and the corporation has one or more
business offices in this state, the board of directors shall fix and designate
a principal business office in the State of California.
Section 2. OTHER OFFICES. The Board of Directors or officers
of the corporation may at any time establish branch or subordinate offices at
any place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall
be held at any place within or outside the State of California designated by
the board of directors. In the absence of any such designation, shareholders'
meetings shall be held at the principal executive office of the corporation.
Section 2. ANNUAL MEETING. The annual meeting of
shareholders shall be held each year on a date and at a time designated by the
board of directors. At each annual meeting directors shall be elected, and any
other proper business may be transacted. The date so designated shall be
within six (6) months after the end of the fiscal year of the corporation, and
within fifteen (15) months after the last annual meeting.
Section 3. SPECIAL MEETING. A special meeting of the
shareholders may be called at any time by the board of directors, or by the
chairman of the board, or by the president, or by one or more shareholders
holding shares in the aggregate entitled to cast not less than ten percent
(10%) of the votes at that meeting.
If a special meeting is called by any person or persons other
than the board of directors, the request shall be in writing, specifying the
time of such meeting and the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by
EXHIBIT 3.1
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registered mail or by telegraphic or other facsimile transmission to the
chairman of the board, the president, any vice president, or the secretary of
the corporation. The officer receiving the request shall cause notice to be
promptly given to the shareholders entitled to vote, in accordance with the
provisions of Sections 4 and 5 of this Article II, that a meeting will be held
at the time requested by the person or persons calling the meeting, not less
than thirty-five (35) nor more than sixty (60) days after the receipt of the
request. If the notice is not given within twenty (20) days after receipt of
the request, the person or persons requesting the meeting may give the notice.
Nothing contained in this paragraph of this Section 3 shall be construed as
limiting, fixing or affecting the time when a meeting of shareholders called by
action of the board of directors may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of
meetings of shareholders shall be sent or otherwise given in accordance with
Section 5 of this Article II not less than ten (10) nor more than sixty (60)
days before the date of the meeting. The notice shall specify the place, date
and hour of the meeting and (i) in the case of a special meeting, the general
nature of the business to be transacted, or (ii) in the case of the annual
meeting, those matters which the board of directors, at the time of giving the
notice, intends to present for action by the shareholders. The notice of any
meeting at which directors are to be elected shall include the name of any
nominee or nominees whom, at the time of the notice, management intends to
present for election.
If action is proposed to be taken at any meeting for approval
of (i) a contract or transaction in which a director has a direct or indirect
financial interest, pursuant to Section 310 of the Corporations Code of
California, (ii) an amendment of the articles of incorporation, pursuant to
Section 902 of that Code, (iii) a reorganization of the corporation, pursuant
to Section 1201 of that Code, (iv) a voluntary dissolution of the corporation,
pursuant to Section 1900 of that Code, or (v) a distribution in dissolution
other than in accordance with the rights of outstanding preferred shares,
pursuant to Section 2007 of that Code, the notice shall also state the general
nature of that proposal.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of shareholders shall be given either personally or by
first-class mail or telegraphic or other written communication, charges
prepaid, addressed to the shareholder at the address of that shareholder
appearing on the books of the corporation or given by the shareholder to the
corporation for the purpose of notice. If no such address appears on the
Corporation's books or is given, notice shall be deemed to have been given if
sent to that shareholder by first- class mail or telegraphic or other written
communication to the Corporation's principal executive office, or if published
at least once in a newspaper of general circulation in the county where that
office is located. Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by telegram or other
means of written communication.
If any notice addressed to a shareholder at the address of
that shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at that address, all future notices or reports shall be deemed to have
EXHIBIT 3.1
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been duly given without further mailing if these shall be available to the
shareholder on written demand of the shareholder at the principal executive
office of the corporation for a period of one year from the date of the giving
of the notice.
An affidavit of the mailing or other means of giving any
notice of any shareholders' meeting shall be executed by the secretary,
assistant secretary, or any transfer agent of the corporation giving their
notice, and shall be filed and maintained in the minute book of the
corporation.
Section 6. QUORUM. The presence in person or by proxy of the
holders of a majority of the shares entitled to vote at any meeting of
shareholders shall constitute a quorum for the transaction of business. The
shareholders present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
Section 7. ADJOURNED MEETING; NOTICE. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by the vote of the majority of the shares
represented at that meeting, either in person or by proxy, but in the absence
of a quorum, no other business may be transacted at that meeting, except as
provided in Section 6 of this Article II.
When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at a meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more that forty-five (45) days from the
date set for the original meeting, in which case the board of directors shall
set a new record date. Notice of any such adjourned meeting shall be given to
each shareholder of record entitled to vote at the adjourned meeting in
accordance with the provisions of Sections 4 and 5 of this Article II. At any
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
Section 8. VOTING. The shareholders entitled to vote at any
meeting of shareholders shall be determined in accordance with the provisions
of Section 11 of this Article II, subject to the provisions of Section 702 to
704, inclusive, of the Corporations Code of California (relating to voting
shares held by a fiduciary, in the name of a corporation, or in joint
ownership). The shareholders' vote may be by voice vote or by ballot;
provided, however, that any election for directors must be by ballot if
demanded by any shareholder before the voting has begun. On any matter other
than elections of directors, any shareholder may vote part of the shares in
favor of the proposal and refrain from voting the remaining shares or vote them
against the proposal, but, if the shareholder fails to specify the number of
shares which the shareholder is voting affirmatively, it will be conclusively
presumed that the shareholder's approving vote is with respect to all shares
that the shareholder is entitled to vote. If a quorum is present, the
affirmative vote of the majority of the shares represented at the meeting and
entitled to vote on any matter (other than the election of directors) shall be
the act of the shareholders, unless the vote of a
EXHIBIT 3.1
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greater number of voting by classes is required by California General
Corporation Law or by the articles of incorporation.
At a shareholders' meeting at which directors are to be
elected, no shareholder shall be entitled to cumulate votes (i.e., cast for any
one or more candidates a number of votes greater than the number of the
shareholder's shares) unless the candidates' names have been placed in
nomination prior to commencement of the voting and a shareholder has given
notice prior to commencement of the voting of the shareholder's intention to
cumulate votes. If any shareholder has given such a notice, then every
shareholder entitled to vote may cumulate votes for candidates in nomination
and give one candidate a number of votes equal to the number of directors to be
elected multiplied by the number of votes to which that shareholder's shares
are entitled, or distribute the shareholder's votes on the same principle among
any or all of the candidates, as the shareholder thinks fit. The candidates
receiving the highest number of votes, up to the number of directors to be
elected, shall be elected.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT
SHAREHOLDERS. The transactions of any meeting of shareholders, either annual
or special, however called and noticed, and wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if a quorum be
present either in person or by proxy, and if, either before or after the
meeting, each person entitled to vote, who was not present in person or by
proxy, signs a written waiver of notice or a consent to a holding of the
meeting, or an approval of the minutes. The waiver of notice or consent need
not specify either the business to be transacted or the purpose of any annual
or special meeting of shareholders, except that if action is taken or proposed
to be taken for approval of any of those matters specified in the second
paragraph of Section 4 of this Article II, the waiver of notice or consent
shall state the general nature of the proposal. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Attendance by a person at a meeting shall also constitute a
waiver of notice of that meeting, except when the person objects, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened, and except that attendance at a
meeting is not a waiver of any right to object to the consideration of matters
not included in the notice of the meeting if that objection is expressly made
at the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING. Any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take that action at a meeting at which all
shares entitled to vote on that action were present and voted. In the case of
election of directors, such a consent shall be effective only if signed by the
holders of all outstanding shares entitled to vote for the election of
directors; provided, however, that a director may be elected at any time to
fill a vacancy on the board of directors that has not been filled by the
directors, by the written consent of the holders of a majority of the
outstanding shares entitled to vote for the election of directors. All such
consents shall be filed with the secretary of the corporation and shall be
EXHIBIT 3.1
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maintained in the corporate records. Any shareholder giving a written consent,
or the shareholder's proxy holders, or a transferee of the shares or a personal
representative of the shareholder or their respective proxy holders, may revoke
the consent by a writing received by the secretary of the corporation before
written consents of the number of shares required to authorize the proposed
action have been filed with the secretary.
If the consents of all shareholders entitled to vote have not
been solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting.
This notice shall be given in the manner specified in Section 5 of this Article
II. In the case of approval of (i) contracts or transactions in which a
director has a direct or indirect financial interest, pursuant to Section 310
of the Corporations Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of that Code, (iii) a reorganization of
the corporation, pursuant to Section 1201 of that Code, and (iv) a distribution
in dissolution other than in accordance with the rights of outstanding
preferred shares, pursuant to Section 2007 of that Code, the notice shall be
given at least ten (10) days before the consummation of any action authorized
by that approval.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND
GIVING CONSENTS. For purposes of determining the shareholders entitled to
notice of any meeting or to vote or entitled to give consent to corporate
action without a meeting, the board of directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days
before the date of any such meeting nor more than sixty (60) days before any
such action without a meeting, and in this event only shareholders of record on
the date so fixed are entitled to notice and to vote or to give consents, as
the case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the
California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the business day
next preceding the day on which the meeting is held.
(b) The record date for determining shareholders
entitled to give consent to corporate action in writing without a meeting, (i)
when no prior action by the board has been taken, shall be the day on which the
first written consent is given, or (ii) when prior action of the board has been
taken, shall be at the close of business on the day on which the board adopts
the resolution relating to that action, or the sixtieth (60th) day before the
date of such other action, whichever is later.
Section 12. PROXIES. Every person entitled to vote for
directors or on any other matter shall have the right to do so either in person
or by one or more agents authorized by a written proxy signed by the person and
filed with the secretary of the corporation. A proxy shall
EXHIBIT 3.1
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be deemed signed if the shareholder's name is placed on the proxy (whether by
manual signature, typewriting, telegraphic transmission, or otherwise) by the
shareholder or the shareholder's attorney-in-fact. A validly executed proxy
which does not state that it is irrevocable shall continue in full force and
effect unless (i) revoked by the person executing it, before the vote pursuant
to that proxy, by a writing delivered to the corporation stating that the proxy
is revoked, or by a subsequent proxy executed by, or attendance at the meeting
and voting in person by, the person executing the proxy; or (ii) written notice
of the death or incapacity of the maker of that proxy is received by the
corporation before the vote pursuant to that proxy is counted; provided,
however, that no proxy shall be valid after the expiration of eleven (11)
months from the date of the proxy, unless otherwise provided in the proxy. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Sections 705 (e) and 705 (f) of the Corporations
Code of California.
Section 13. INSPECTORS OF ELECTION. Before any meeting of
shareholders, the board of directors may appoint any persons other than
nominees for office to act as inspectors of election at the meeting or its
adjournment. If no inspectors of election are so appointed, the chairman of
the meeting may, and on the request of any shareholder or a shareholder's proxy
shall, appoint inspectors of election at the meeting. The number of inspectors
shall be either one (1) or three (3). If inspectors are appointed at a meeting
on the request of one or more shareholders or proxies, the holders of a
majority of shares or their proxies present at the meeting shall determine
whether one (1) or three (3) inspectors are to be appointed. If any person
appointed as inspector fails to appear or fails or refuses to act, the chairman
of the meeting may, and upon the request of any shareholder or a shareholder's
proxy shall, appoint a person to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and
questions in any way arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to
conduct the election or vote with fairness to all shareholders.
Section 14. REQUIREMENT FOR CERTAIN LITIGATION. This
Corporation is prohibited from instituting or joining any action, claim, or
proceeding against any party to that
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certain Transition and Settlement Agreement dated December 22, 1986, effective
as of January 5, 1987, by and between Robert B. Hitchcock, Richard C. Wilcox,
Richard A. Cortese, Neil L. Diver, Fred Krimm, Mary K. Carrington and Alpha
Microsystems unless (i) such institution or joinder is approved in advance by a
majority of the authorized number of directors of the Corporation, which
majority must include all of the disinterested directors of the Corporation,
(ii) the number of disinterested directors approving such institution or
joinder is at least three (3), and (iii) such action has been undertaken on the
advice of independent counsel of recognized good standing in corporate law
matters which is not the regular outside counsel to the Corporation and which,
after investigation of the legal and factual basis of such action, claim, or
proceeding, has advised the Board of Directors that in its opinion it is more
likely than not that a cause of action exists which, if not pursued, could
result in a material loss to this Corporation. A person shall be deemed not to
be a disinterested director if he or she is an employee, officer or greater
than five percent (5%) shareholder of the Corporation or any subsidiary of the
Corporation or is a person controlled by, or is an associate of, such employee,
officer or shareholder. The term "associate" means (1) any person who is an
officer or director or greater than five percent (5%) shareholder of any
corporation or organization of which such employee, officer, or shareholder is
an officer or director or is, directly or indirectly, the beneficial owner of
five percent (5%) or more of any class of equity securities, (2) any person who
is a partner of such employee, officer or shareholder, and (3) any person who
is a trustee or other fiduciary or beneficiary of a trust in which such
employee, officer or shareholder has a substantial beneficial interest or
serves as trustee or in a similar fiduciary capacity, and (4) any relative or
spouse of such employee, officer or shareholder, or any relative of such
spouse, who either is an ancestor or descendent of such person or spouse or who
has the same home as such person or spouse. Any defendant party in any action,
claim or proceeding prohibited by this Section 14 shall be automatically
entitled to have such action, claim, or proceeding dismissed with prejudice.
Section 15. ADVANCE NOTICE OF SHAREHOLDER PROPOSALS.
(a) At any meeting of the shareholders, only such
business shall be conducted as shall have been brought before the meeting (i)
by or at the direction of the board of directors or (ii) by any shareholder of
the corporation who complies with the notice procedures set forth in this
Section 15(a). For business to be properly brought before any meeting of the
shareholders by a shareholder, the shareholder must have given notice thereof
in writing to the Secretary of the corporation not less than 90 days in advance
of such meeting or, if later, the tenth day following the first public
announcement of the date of such meeting. A shareholder's notice to the
Secretary shall set forth as to each matter the shareholder proposes to bring
before the meeting (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting; (ii) the name and addresses, as they appear on the corporation's
books, of the shareholder proposing such business; (iii) the class and number
of shares of the corporation which are beneficially owned by the shareholder;
and (iv) any material interest of the shareholder in such business. In
addition, the shareholder making such proposal shall promptly provide any other
information reasonably requested by the corporation. Notwithstanding anything
in these Bylaws to the contrary, no business shall be conducted at any meeting
of the shareholders except in accordance with the procedures set forth in this
Section 15.
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The Chairman of any such meeting shall direct that any business not properly
brought before the meeting shall not be considered.
(b) Only persons who are nominated in accordance
with the procedures set forth in this Section 15(b) shall be eligible for
election as directors. Nominations for the election of directors may be made
by the board of directors (or by a committee established by the board of
directors) or by any shareholder entitled to vote in the election of directors.
A shareholder may nominate a person for election as a director at a
shareholder's meeting only if written notice of such shareholder's intent to
make such nomination has been given to the Secretary of the corporation not
later than 90 days in advance of such meeting or, if later, the tenth day
following the first public announcement of the date of such meeting. Each such
notice shall include: (i) the name and address of the shareholder who intends
to make the nomination and of the person or persons to be nominated; (ii) a
representation that the shareholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting and intends to appear in person or by proxy at the
meeting and nominate the person or persons specified in the notice; (iii) a
description of all arrangements or understandings between the shareholder and
each nominee and any other person or persons (naming such person or person)
pursuant to which the nomination or nominations are to be made by the
shareholder; (iv) such other information regarding each nominee proposed by
such shareholder as is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, had the
nominee been nominated, or intended to be nominated, by the board of directors
for election at a shareholders' meeting; and (v) the written consent of each
nominee to be named in the proxy statement and serve as a director of the
corporation if elected. In addition, the shareholder making such nomination
shall promptly provide any other information reasonably requested by the
corporation. No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in
this Section 15(b). The Chairman of any meeting of shareholders shall direct
that any nomination not be made in accordance with these procedures be
disregarded.
ARTICLE III
DIRECTORS
Section l. POWERS. Subject to the provisions of the
California General Corporation Law and any limitations in the articles of
incorporation and these bylaws relating to action required to be approved by
the shareholders or by the outstanding shares, the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised by or
under the direction of the board of directors.
Without prejudice to these general powers, and subject to the
same limitations, the directors shall have the power to:
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(a) Select and remove all officers, agents, and
employees of the corporation; prescribe any powers and duties for them that are
consistent with law, with the articles of incorporation, and with these bylaws;
fix their compensation; and require from them security for faithful service.
(b) Change the principal executive office or the
principal business office in the State of California from one location to
another; cause the corporation to be qualified to do business in any other
state, territory, dependency, or country and conduct business within or without
the State of California; and designate any place within or without the State of
California for the holding of any shareholders' meeting, or meetings, including
annual meetings.
(c) Adopt, make, and use a corporate seal;
prescribe the forms of certificates of stock; and alter the form of the seal
and certificates.
(d) Authorize the issuance of shares of stock of
the corporation on any lawful terms, in consideration of money paid, labor
done, services actually rendered, debts or securities canceled, or tangible or
intangible property actually received.
(e) Borrow money and incur indebtedness on behalf
of the corporation, and cause to be executed and delivered for the
Corporation's purposes, in the corporate name, promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations, and other
evidences of debt and securities.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The
authorized number of directors of the corporation shall be not less than five
(5) nor more than nine (9). The exact number of directors within these limits
shall be specified by approval of the Board of Directors or by approval of the
shareholders, as that term is defined in California Corporations Code Section
153; provided, however, that an amendment reducing the number of directors to a
number less than five (5) cannot be adopted if the votes cast against its
adoption at a meeting, or the shares not consenting in the case of action by
written consent, are equal to more than 16-2/3% of the outstanding shares
entitled to vote.
Section 3. ELECTION AND TERM OF OFFICE OR DIRECTORS.
Directors shall be elected at each annual meeting of the shareholders to hold
office until the next annual meeting. Each director, including a director
elected to fill a vacancy, shall hold office until the expiration of the term
for which elected and until a successor has been elected and qualified.
Section 4. VACANCIES. Vacancies in the board of directors
may be filled by a majority of the remaining directors, though less than a
quorum, or by a sole remaining director, except that a vacancy created by the
removal of a director by the vote or written consent of the shareholders or by
court order may be filled only by the vote of a majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is present, or by
the written consent of holders of a majority of the outstanding shares entitled
to vote. Each director so elected shall hold office until the next annual
meeting of the shareholders and until a successor has been elected and
qualified.
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A vacancy or vacancies in the Board of Directors shall be
deemed to exist in the event of the death, resignation, or removal of any
director, or if the board of directors by resolution declares vacant the office
of a director who has been declared of unsound mind by an order of court or
convicted of a felony, or if the authorized number of directors is increased,
or if the shareholders fail, at any meeting of shareholders at which any
director or directors are elected, to elect the number of directors to be voted
for at that meeting.
The shareholders may elect a director or directors at any time
to fill any vacancy or vacancies not filled by the directors, but any such
election by written consent shall require the consent of a majority of the
outstanding shares entitled to vote.
Any director may resign effective on giving written notice to
the chairman of the board, the president, the secretary, or the board of
directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
No reductions of the authorized number of directors shall have
the effect of removing any director before that director's term of office
expires.
Section 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE.
Regular meetings of the board of directors may be held at any place within or
outside the State of California that has been designated from time to time by
resolution of the board.
In the absence of such a designation, regular meetings shall
be held at the principal executive office of the corporation. Special meetings
of the board shall be held at any place within or outside the State of
California that has been designated in the notice of the meeting or, if not
stated in the notice or there is no notice, at the principal executive office
of the corporation. Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another, and all such directors shall
be deemed to be present in person at the meeting.
Section 6. ANNUAL MEETING. Immediately following each annual
meeting of shareholders, the board of directors shall hold a regular meeting
for the purpose of organization, any desired election of officers, and the
transaction of other business. Notice of this meeting shall not be required.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of
the board of directors shall be held without call at such time as shall from
time to time be fixed by the board of directors. Such regular meetings may be
held without notice.
Section 8. SPECIAL MEETINGS. Special meetings of the board
of directors for any purpose or purposes may be called at any time by the
chairman of the board or the president or any vice president or the secretary
or any two directors.
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Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by first-class
mail or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation. In case
the notice is mailed, it shall be deposited in the United States mail at least
four (4) days before the time of the holding of the meeting. In case the
notice is delivered personally, or by telephone or telegram, it shall be
delivered personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting. Any oral
notice given personally or by telephone may be communicated either to the
director or to a person at the office of the director who the person giving the
notice has reason to believe will promptly communicate it to the director. The
notice need not specify the purpose of the meeting nor the place if the meeting
is to be held at the principal executive office of the corporation.
Section 9. QUORUM. A majority of the authorized number of
directors shall constitute a quorum for the transaction of business, except to
adjourn as provided in Section 11 of this Article III. Every act or decision
done or made by a majority of the directors present at a meeting duly held at
which a quorum is present shall be regarded as the act of the board of
directors, subject to the provisions of Section 310 of the Corporations Code of
California (as to approval of contracts or transactions in which a director has
a direct or indirect material financial interest), Section 311 of that Code (as
to appointment of committees), and Section 317(e) of that Code (as to
indemnification of directors). A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the
required quorum for that meeting.
Section 10. WAIVER OF NOTICE. The transactions of any
meeting of the board of directors, however called and noticed or wherever held,
shall be as valid as though had at a meeting duly held after regular call and
notice if a quorum is present and if, either before or after the meeting, each
of the directors not present signs a written waiver of notice, a consent to
holding the meeting or an approval of the minutes. The waiver of notice or
consent need not specify the purpose of the meeting. All such waivers,
consents, and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting. Notice of a meeting shall also be deemed
given to any director who attends the meeting without protesting before or at
its commencement, the lack of notice to that director.
Section 11. ADJOURNMENT. A majority of the directors
present, whether or not constituting a quorum, may adjourn any meeting to
another time and place.
Section 12. NOTICE OF ADJOURNMENT. Notice of the time and
place of holding an adjourned meeting need not be given, unless the meeting is
adjourned for more than twenty-four (24) hours, in which case notice of the
time and place shall be given before the time of the adjourned meeting, in the
manner specified in Section 8 of this Article III, to the directors who were
not present at the time of the adjournment.
Section 13. ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the board of directors may be taken without a meeting,
if all members of the board shall individually or collectively consent in
writing to that action. Such action by written consent
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shall have the same force and effect as a unanimous vote of the board of
directors. Such written consent or consents shall be filed with the minutes of
the proceedings of the board.
Section 14. FEES AND COMPENSATION OF DIRECTORS. Directors
and members of committees may receive such compensation, if any, for their
services, and such reimbursement of expenses, as may be fixed or determined by
resolution of the board of directors. This Section 14 shall not be construed
to preclude any director from serving the corporation in any other capacity as
an officer, agent, employee, or otherwise, and receiving compensation for
those services.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF DIRECTORS. The board of directors
may, by resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors, to
serve at the pleasure of the board. The board may designate one or more
directors as alternate members of any committee, who may replace any absent
member at any meeting of the committee. Any committee, to the extent provided
in the resolution of the board, shall have all the authority of the board,
except with respect to:
(a) the approval of any action which, under the
General Corporation Law of California, also requires shareholders' approval or
approval of the outstanding shares;
(b) the filling of vacancies on the board of
directors or in any committee;
(c) the fixing of compensation of the directors
for serving on the board or on any committee;
(d) the amendment or repeal of bylaws or the
adoption of new bylaws;
(e) the amendment or repeal of any resolution of
the board of directors which by its express terms is not so amendable or
repealable;
(f) a distribution to the shareholders of the
Corporation, except at a rate or in a periodic amount or within a price range
determined by the board of directors; or
(g) the appointment of any other committees of
the board of directors or the members of these committees.
Section 2. MEETINGS AND ACTION OR COMMITTEES. Meetings and
action of committees shall be governed by, and held and taken in accordance
with, the provisions of Article III of these bylaws, Sections 5 (place of
meetings), 7 (regular meetings), 8 (special meetings and notice), 9 (quorum),
10 (waiver of notice), 11 (adjournment), 12 (notice of
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adjournment), and 13 (action without meeting), with such changes in the context
of those bylaws as are necessary to substitute the committee and its members
for the board of directors and its members, except that the time of regular
meetings of committees may be determined either by resolution of the board of
directors or by resolution of the committee; special meetings of the committees
may also be called by resolution of the board of directors; and notice of
special meetings of committees shall also be given to all alternate members,
who shall have the right to attend all meetings of the committee. The board of
directors may adopt rules for the government of any committee not inconsistent
with the provisions of these bylaws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall
be a president, a secretary, and a chief financial officer. The corporation
may also have, at the discretion of the board of directors, a chairman of the
board, one or more assistant secretaries, one or more assistant treasurers, and
such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article V. Any number of offices may be held by the same
person.
Section 2. ELECTION OF OFFICERS. The officers of the
corporation, except such officers as may be appointed in accordance with the
provisions of Section 3 or Section 5 of this Article V, shall be chosen by the
board of directors, and each shall serve at the pleasure of the board, subject
to the rights, if any, of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The board of directors may
appoint, and may empower the president to appoint, such other officers as the
business of the corporation may require, each of whom shall hold office for
such period, have such authority and perform such duties as are provided in the
bylaws or as the board of directors may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to
the rights, if any, of an officer under any contract of employment, any officer
may be removed, either with or without cause, by the board of directors, at any
regular or special meeting of the board, or, except in case of an officer
chosen by the board of directors, by any officer upon whom such power of
removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to
the corporation. Any resignation shall take effect at the date of the receipt
of that notice or at any later time specified in that notice; and, unless
otherwise specified in that notice, the acceptance of the resignation shall not
be necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
Section 5. VACANCIES IN OFFICES. A vacancy in any office
because of death, resignation, removal, disqualification or any other cause
shall be filled in the manner prescribed in these bylaws for regular
appointments to that office.
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Section 6. CHAIRMAN OF THE BOARD. The chairman of the board,
if such an officer be elected, shall, if present, preside at meetings of the
board of directors and exercise and perform such other powers and duties as may
be from time to time assigned to him by the board of directors or prescribed by
the bylaws. If there is no president, the chairman of the board shall in
addition be the chief executive officer of the corporation and shall have the
powers and duties prescribed in Section 7 of this Article V.
Section 7. PRESIDENT. Subject to such supervisory powers, if
any, as may be given by the board of directors to the chairman of the board, if
there be such an officer, the president shall be the chief executive officer of
the corporation and shall, subject to the control of the board of directors,
have general supervision, direction, and control of the business and the
officers of the corporation. He shall preside at all meetings of the
shareholders and, in the absence of the chairman of the board, or if there be
none, at all meetings of the board of directors. He shall have the general
powers and duties of management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may be prescribed
by the board of directors or the bylaws.
Section 8. VICE PRESIDENTS. In the absence or disability of
the president, the vice presidents, if any, in order of their rank as fixed by
the board of directors, or, if not ranked, a vice president designated by the
board of directors, shall perform all the duties of the president, and when so
acting shall have all the powers of, and be subject to all the restrictions
upon, the president. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for them
respectively by the board of directors or by the bylaws, and the president, or
the chairman of the board.
Section 9. SECRETARY. The secretary shall keep or cause to
be kept, at the principal executive office or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and shareholders, with the time and place
of holding, whether regular or special, and, if special, how authorized, the
notice given, the names of those present at directors' meetings or committee
meetings, the number of shares present or represented at shareholders'
meetings, and the proceedings.
The secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the Corporation's transfer agent
or registrar, as determined by resolution of the board of directors, a share
register, or a duplicate share register, showing the names of all shareholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the board of directors required by the
bylaws or by law to be given, and he shall keep the seal of the corporation if
one be adopted, in safe custody, and shall have such other powers and perform
such other duties as may be prescribed by the board of directors or by the
bylaws.
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Section 10. CHIEF FINANCIAL OFFICER. The chief financial
officer shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings, and shares.
The books of account shall at all reasonable times be open to inspection by any
director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated by the board of directors. He shall disburse
the funds of the corporation as may be ordered by the board of directors, shall
render to the president and directors, whenever they request it, an account of
all of his transactions as chief financial officer and of the financial
condition of the corporation, and shall have other powers and perform such
other duties as may be prescribed by the board of directors or the bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES, AND OTHER AGENTS
Section l. AGENTS, PROCEEDINGS, AND EXPENSES. For the
purposes of this Article, "agent" means any person who is or was a director,
officer, employee, or other agent of this corporation, or is or was serving at
the request of this corporation as a director, officer, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee, or agent of a foreign
or domestic corporation which was a predecessor corporation of this corporation
or of another enterprise at the request of such predecessor corporation;
"proceeding" means any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative, or investigative; and "expenses"
includes, without limitation, attorneys' fees and any expenses of establishing
a right to indemnification under Section 4 or Section 5(c) of this Article.
Section 2. ACTIONS OTHER THAN BY THE CORPORATION. Subject to
the provisions of Section 5, Section 8 and Section 9 of this Article, this
corporation shall indemnify any person who was or is a party, or is threatened
to be made a party, to any proceeding (other than an action by or in the right
of this corporation) by reason of the fact that such person is or was an agent
of this corporation, against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such proceeding if
that person acted in good faith and in a manner that person reasonably believed
to be in the best interests of this corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of that person was
unlawful. The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best interests of this
corporation or that the person had reasonable cause to believe that the
person's conduct was unlawful.
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Section 3. ACTIONS BY THE CORPORATION. Subject to the
provisions of Section 5, Section 8 and Section 9 of this Article, this
corporation shall indemnify any person who was or is a party, or is threatened
to be made a party, to any threatened, pending or completed action by or in the
right of this corporation to procure a judgment in its favor by reason of the
fact that that person is or was an agent of this corporation, against expenses
actually and reasonably incurred by that person in connection with the defense
or settlement of that action if that person acted in good faith, in a manner
that person believed to be in the best interests of this corporation and with
such care, including reasonable inquiry, as an ordinarily prudent person in a
like position would use under similar circumstances. No indemnification shall
be made under this Section 3:
(a) In respect of any claim, issue or matter as
to which that person shall have been adjudged to be liable to this corporation
in the performance of that person's duty to this corporation, unless and only
to the extent that the court in which that action was brought shall determine
upon application that, in view of all the circumstances of the case, that
person is fairly and reasonably entitled to indemnity for the expenses which
the court shall determine;
(b) Of amounts paid in settling or otherwise
disposing of a threatened or pending action, with or without court approval; or
(c) Of expenses incurred in defending a
threatened or pending action which is settled or otherwise disposed of without
court approval.
Section 4. SUCCESSFUL DEFENSE BY AGENT. To the extent that
an agent of this corporation has been successful on the merits in defense of
any proceeding referred to in Sections 2 or 3 of this Article, or in defense of
any claim, issue, or matter therein, the agent shall be indemnified against
expenses actually and reasonably incurred by the agent in connection therewith.
Section 5. REQUIRED APPROVAL. Except as provided in Section
4 of this Article, any indemnification under this Article shall be made by this
corporation only if authorized in the specific case on a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct set forth in Sections 2 or 3 of this
Article, by:
(a) A majority vote of a quorum consisting of
directors who are not parties to the proceeding;
(b) Approval by the affirmative vote of a
majority of the shares of this corporation entitled to vote represented at a
duly held meeting at which a quorum is present or by the written consent of
holders of a majority of the outstanding shares entitled to vote. For this
purpose, the shares owned by the person to be indemnified shall not be
considered outstanding or entitled to vote thereon; or
(c) The court in which the proceeding is or was
pending, on application made by this corporation or the agent or the attorney
or other person rendering services in
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connection with the defense, whether or not such application by the agent,
attorney, or other person is opposed by this corporation.
Section 6. ADVANCE OF EXPENSES. Expenses incurred in
defending any proceeding may be advanced by this corporation before the final
disposition of the proceeding on receipt of an undertaking by or on behalf of
the agent to repay the amount of the advance unless it shall be determined
ultimately that the agent is entitled to be indemnified as authorized in this
Article.
Section 7. OTHER CONTRACTUAL RIGHTS. Nothing contained in
this Article shall affect any right to indemnification to which persons other
than directors and officers of this corporation or any subsidiary hereof may be
entitled by contract or otherwise.
Section 8. LIMITATIONS. No indemnification or advance shall
be made under this Article, except as provided in Section 4 or Section 5 (c),
in any circumstance where it appears:
(a) That it would be inconsistent with a
provision of the articles, a resolution of the shareholders, or an agreement in
effect at the time of the accrual of the alleged cause of action asserted in
the proceeding in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any
condition expressly imposed by a court in approving a settlement.
Section 9. INSURANCE. Upon and in the event of a
determination by the board of directors of this corporation to purchase such
insurance, this corporation shall purchase and maintain insurance on behalf of
any agent of the corporation against any liability asserted against or incurred
by the agent in such capacity or arising out of the agent's status as such
whether or not this corporation would have the power to indemnify the agent
against that liability under the provisions of this section.
Section 10. FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT
PLAN. This Article does not apply to any proceeding against any trustee,
investment manager, or other fiduciary of an employee benefit plan in that
person's capacity as such, even though that person may also be an agent of the
corporation as defined in Section 1 of this Article. Nothing contained in this
Article shall limit any right to indemnification to which such a trustee,
investment manager, or other fiduciary may be entitled by contract or
otherwise, which shall be enforceable to the extent permitted by applicable law
other than this Article.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The
corporation shall keep at its principal executive office, or at the office of
its transfer agent or
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registrar, if either be appointed and as determined by resolution of the board
of directors, a record of its shareholders, giving the names and addresses of
all shareholders and the number and class of shares held by each shareholder.
A shareholder or shareholders of the corporation holding at
least five percent (5%) in the aggregate of the outstanding voting shares of
the corporation may (i) inspect and copy the records of shareholders' names and
addresses and shareholdings during usual business hours on five (5) days' prior
written demand on the corporation, and (ii) obtain from the transfer agent of
the corporation, on written demand and on the tender of such transfer agent's
usual charges for such list, a list of the shareholders' names and addresses,
who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that list has been
compiled or as of a date specified by the shareholder after the date of demand.
This list shall be made available to any such shareholder by the transfer agent
on or before the later of five (5) days after the demand is received or the
date specified in the demand as the date as of which the list is to be
compiled. The record of shareholders shall also be open to inspection on the
written demand of any shareholder or holder of a voting trust certificate, at
any time during usual business hours, for a purpose reasonably related to the
holder's interests as a shareholder or as the holder of a voting trust
certificate. Any inspection and copying under this Section l may be made in
person or by an agent or attorney of the shareholder or holder of a voting
trust certificate making the demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The
corporation shall keep at its principal executive office, or if its principal
executive office is not in the State of California, at its principal business
office in this state, the original or a copy of the bylaws as amended to date,
which shall be open to inspection by the shareholders at all reasonable times
during office hours. If the principal executive office of the corporation is
outside the State of California and the corporation has no principal business
office in this state, the secretary shall, upon the written request of any
shareholder, furnish to that shareholder a copy of the bylaws as amended to
date.
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE
RECORDS. The accounting books and records and minutes of proceedings of the
shareholders and the board of directors and any committee or committees of the
board of directors shall be kept at such place or places designated by the
board of directors, or, in the absence of such designation, at the principal
executive office of the corporation. The minutes shall be kept in written form
and the accounting books and records shall be kept either in written form or in
any other form capable of being converted into written form. The minutes and
accounting books and records shall be open to inspection upon the written
demand of any shareholder or holder of a voting trust certificate, at any
reasonable time during usual business hours, for a purpose reasonably related
to the holder's interests as a shareholder or as the holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney,
and shall include the right to copy and make extracts. These rights of
inspection shall extend to the records of each subsidiary corporation of the
corporation.
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Section 4. INSPECTION BY DIRECTORS. Every director shall
have the absolute right at any reasonable time to inspect all books, records,
and documents of every kind and the physical properties of the corporation and
each of its subsidiary corporations. This inspection by a director may be made
in person or by an agent or attorney and the right of inspection includes the
right to copy and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS. The annual report
to shareholders referred to in Section 1501 of the California General
Corporation Law is expressly dispensed with, but nothing herein shall be
interpreted as prohibiting the board of directors from issuing annual or other
periodic reports to the shareholders of the corporation as they consider
appropriate.
Section 6. FINANCIAL STATEMENTS. A copy of any annual
financial statement and any income statement of the corporation for each
quarterly period of each fiscal year, and any accompanying balance sheet of the
corporation as of the end of each such period, that has been prepared by the
corporation shall be kept on file in the principal executive office of the
corporation for twelve (12) months and each such statement shall be exhibited
at all reasonable times to any shareholder demanding an examination of any such
statement or a copy shall be mailed to any such shareholder.
If a shareholder or shareholders holding at least five percent
(5%) of the outstanding shares of any class of stock of the corporation makes a
written request to the corporation for an income statement of the corporation
for the three-month, six-month or nine-month period of the then current fiscal
year ended more than thirty (30) days before the date of the request, and a
balance sheet of the corporation as of the end of that period, the chief
financial officer shall cause that statement to be prepared, if not already
prepared, and shall deliver personally or mail that statement or statements to
the person making the request within thirty (30) days after the receipt of the
request. If the corporation has not sent to the shareholders its annual report
for the last fiscal year, this report shall likewise be delivered or mailed to
the shareholder or shareholders within thirty (30) days after the request.
The corporation shall also, on the written request of any
shareholder, mail to the shareholder a copy of the last annual, semi-annual, or
quarterly income statement which it has prepared, and a balance sheet as of the
end of that period.
The quarterly income statements and balance sheets referred to
in this section shall be accompanied by the report, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the financial statements were prepared without
audit from the books and records of the corporation.
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION. The
corporation shall, during the period specified below, file annually with the
Secretary of State of the State of California, on the prescribed form, a
statement setting forth the authorized number of directors, the names and
complete business or residence addresses of all incumbent directors, the names
and complete business or residence addresses of the chief executive officer,
secretary, and
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chief financial officer, the street address of its principal executive office
or principal business office in this state, and the general type of business
constituting the principal business activity of the corporation, together with
a designation of the agent of the corporation for the purpose of service of
process, all in compliance with Section 1502 of the Corporations Code of
California. Such filing shall be made within ninety (90) days after the filing
of its original articles and annually thereafter during the period ending on
the last day of the calendar month in which its original articles were filed
and commencing on the first day of the fifth calendar month next preceding the
calendar month of such filing.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND
VOTING. For purposes of determining the shareholders entitled to receive
payment of any divided or other distribution or allotment of any rights or
entitled to exercise any rights in respect of any other lawful action (other
than action by shareholders by written consent without a meeting), the board of
directors may fix, in advance, a record date, which shall not be more than
sixty (60) days before any such action, and in that case only shareholders of
record on the date so fixed are entitled to receive the dividend, distribution,
or allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation
after the record date so fixed, except as otherwise provided in the California
General Corporation Law.
If the board of directors does not so fix a record date, the
record date for determining shareholders for any such purpose shall be at the
close of business on the day on which the board adopts the applicable
resolution or the sixtieth (60th) day before the date of that action, whichever
is later.
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All
checks, drafts, or other orders for payment of money, notes, or other evidences
of indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time
to time, shall be determined by resolution of the board of directors.
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED.
The board of directors, except as otherwise provided in these bylaws, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation, and
this authority may be general or confined to specific instances; and, unless so
authorized or ratified by the board of directors or within the agency power of
an officer, no officer, agent, or employee shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or
to render it liable for any purpose or for any amount.
Section 4. CERTIFICATES FOR SHARES. A certificate or
certificates for shares of the capital stock of the corporation shall be issued
to each shareholder when any of
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these shares are fully paid, and the board of directors may authorize the
issuance of certificates or shares as partly paid provided that these
certificates shall state the amount of the consideration to be paid for them
and the amount paid. All certificates shall be signed in the name of the
corporation by the chairman of the board or vice chairman of the board or the
president or vice president and by the chief financial officer or an assistant
treasurer or the secretary of any assistant secretary, certifying the number of
shares and the class or series of shares owned by the shareholder. Any or all
of the signatures on the certificate may be facsimile. In case any officer,
transfer agent, or registrar who was signed or whose facsimile signature has
been placed on a certificate shall have ceased to be that officer, transfer
agent, or registrar before that certificate is issued, it may be issued by the
corporation with the same effect as if that person were an officer, transfer
agent, or registrar at the date of issue.
Section 5. LOST CERTIFICATES. Except as provided in this
Section 5, no new certificates for shares shall be issued to replace an old
certificate unless the latter is surrendered to the corporation and canceled at
the same time. The board of directors may, in case any share certificate or
certificate for any other security is lost, stolen, or destroyed, authorize the
issuance of a replacement certificate on such terms and conditions as the board
may require, including provision for indemnification of the corporation secured
by a bond or other adequate security sufficient to protect the corporation
against any claim that may be made against it, including any expense or
liability, on account of the alleged loss, theft, or destruction of the
certificate or the issuance of the replacement certificate.
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The chairman of the board, the president, or any vice president, or any other
person authorized by resolution of the board of directors or by any of the
foregoing designated officers, is authorized to vote on behalf of the
corporation any and all shares of any other corporation or corporations,
foreign or domestic, standing in the name of the corporation. The authority
granted to these officers to vote or represent on behalf of the corporation any
and all shares held by the corporation in any other corporation or corporations
may be exercised by any of these officers in person or by any person authorized
to do so by a proxy duly executed by these officers.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context
requires otherwise, the general provisions, rules of construction, and
definitions in the California General Corporation Law shall govern the
construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENT BY SHAREHOLDERS. New bylaws may be
adopted or these bylaws may be amended or repealed by the vote or written
consent of holders of a majority of the outstanding shares entitled to vote;
provided, however, that if the articles of incorporation of the corporation set
forth the number of authorized directors of the corporation,
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<PAGE> 22
the authorized number of directors may be changed only by an amendment of the
articles of incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to this rights of
the shareholders as provided in Section 1 of this Article IX, bylaws, other
than a bylaw or an amendment of a bylaw changing the authorized number of
directors, may be adopted, amended, or repealed by the Board of Directors;
provided, however, that Section 14 of Article II may not be amended, repealed,
modified, or altered in any way unless (i) such amendment, repeal,
modification, or alternation is approved in advance by a majority of the
authorized number of directors of the corporation which majority must include
all of the disinterested directors of the Corporation, and (ii) the number of
disinterested directors of the Corporation approving such amendment, repeal,
modification or alteration is at least three, and (iii) such amendment, repeal,
modification, or alternation is approved in advance by a majority of the
outstanding shares of the common stock of this Corporation. For these
purposes, the term "disinterested director" shall have the meaning set forth in
Section 14 of Article II of these Bylaws.
EXHIBIT 3.1
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<PAGE> 1
FIRST AMENDMENT TO ALPHA MICROSYSTEMS
1993 EMPLOYEE STOCK OPTION PLAN
THIS FIRST AMENDMENT TO ALPHA MICROSYSTEMS 1993 EMPLOYEE STOCK
OPTION PLAN (the "First Amendment") is hereby adopted by Alpha Microsystems, a
California corporation (the "Company"), effective as of August 13, 1996.
R E C I T A L S :
A. The Alpha Microsystems 1993 Employee Stock Option
Plan (the "Plan") was adopted by the Board of Directors of the Company (the
"Board") on August 27, 1993, and amended on April 14, 1994. The Plan was
approved by the shareholders of the Company on May 31, 1994.
B. Section 13 of the Plan provides that the Board may,
subject to approval of the shareholders of the Company, amend the Plan to
increase the number of shares of common stock of the Company subject to the
Plan as contemplated by this First Amendment.
C. On June 14, 1996, the Board approved a proposal to
increase the number of shares of the Company's common stock, no par value,
authorized for issuance under the Plan, from 550,000 shares to an aggregate of
925,000 shares, an increase of 375,000 shares (the "Proposal"). The Proposal
was approved by the Company's shareholders on August 13, 1996.
AMENDMENT
Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Plan.
The second sentence of Section 6 of the Plan is hereby amended
to read in its entirety as follows:
"The aggregate number of Shares which may be issued
upon exercise of Options under the Plan shall not exceed Nine
Hundred Twenty-Five Thousand (925,000)."
EXHIBIT 4.6
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<PAGE> 2
I hereby certify that the foregoing First Amendment was duly
adopted by the Board of Directors of the Company on June 14, 1996, and by the
shareholders of the Company on August 13, 1996.
Executed on this 13th day of August, 1996.
/s/JOHN F. GLADE
----------------------------
John F. Glade, Secretary
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<PAGE> 1
SECOND AMENDMENT TO ALPHA MICROSYSTEMS
1993 EMPLOYEE STOCK OPTION PLAN
THIS SECOND AMENDMENT TO ALPHA MICROSYSTEMS 1993 EMPLOYEE
STOCK OPTION PLAN (the "Second Amendment") is hereby adopted by Alpha
Microsystems, a California corporation (the "Company"), effective as of October
4, 1996.
R E C I T A L S :
A. The Alpha Microsystems 1993 Employee Stock Option
Plan (the "Plan") was adopted by the Board of Directors of the Company (the
"Board") on August 27, 1993, and amended on April 14, 1994. The Plan was
approved by the shareholders of the Company on May 31, 1994. The First
Amendment to Alpha Microsystems 1993 Employee Stock Option Plan (the "First
Amendment") was adopted by the Board on June 14, 1996 and was approved by the
Shareholders of the Company on August 13, 1996. The Plan and the First
Amendment are collectively referred to herein as the "Amended Plan."
B. Section 13 of the Amended Plan provides that the
Board may amend the Amended Plan in any respect whatsoever, subject to approval
of the shareholders of the Company in particular circumstances which are not
applicable in connection with this Second Amendment.
C. On October 4, 1996, the Board adopted resolutions (i)
providing for early compliance with the new Rule 16b-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934,
as amended, and (ii) approving the form of this Second Amendment which amends
the Amended Plan to comply with the new Rule 16b-3.
A M E N D M E N T :
Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Amended Plan.
1. Section 2(i) of the Amended Plan is hereby deleted in
its entirety.
2. A new Section (w) is hereby added to Section 2 of the
Amended Plan which shall read in its entirety as follows:
"(w) 'Nonemployee Director' shall mean a director of the
Company (i) who is considered a 'Nonemployee Director' in
accordance with Rule 16b-3(b)(3)(i) promulgated by the
Securities and Exchange Commission under the 1934 Act or any
successor provision thereto, as such rule or successor
provision may be amended from time to time, or any other
applicable rules, regulations or interpretations of the
Securities and Exchange
EXHIBIT 4.7
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<PAGE> 2
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 Code."
3. The first sentence of Section 4 of the Amended Plan
is hereby amended to read in its entirety as follows:
"The Plan shall be administered by a Committee of Nonemployee
Directors which shall be appointed by the Board."
I hereby certify that the foregoing Second Amendment was duly
adopted by the Board of Directors of the Company on October 4, 1996.
Executed on this 4th day of October, 1996.
/s/JOHN F. GLADE
----------------------------------
John F. Glade, Secretary
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<PAGE> 1
ALPHA MICROSYSTEMS
1996 NONEMPLOYEE DIRECTOR
STOCK COMPENSATION PLAN
4. ESTABLISHMENT AND PURPOSE.
(a) ALPHA MICROSYSTEMS, a California corporation (the "Company"),
hereby adopts this 1996 Nonemployee Director Stock Compensation Plan (the
"Plan"). The purposes of this Plan are to:
(i) Advance the interests of the Company and its
shareholders by improving the Company's ability to attract and retain
highly qualified persons to serve as Nonemployee Directors of the
Company;
(ii) Align Nonemployee Directors' personal interests more
closely with those of shareholders of the company;
(iii) Promote ownership by Nonemployee Directors of a
greater proprietary interest in the Company; and
(iv) Facilitate the management of the Company's cash flow.
(b) The Plan provides Nonemployee Directors the opportunity to
elect to receive shares of the Company's Common Stock, no par value ("Common
Stock"), in lieu of cash compensation paid for service on the Board of
Directors. Nonemployee Directors who elect to participate in this Plan will
receive shares of Common Stock in an amount equal to the value of cash
compensation otherwise paid for service as a Board member.
5. DEFINITIONS. Where the following terms are used in this Plan
they shall have the meaning specified below, unless the context clearly
indicates otherwise.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
References to any provision of the Code include regulations thereunder and
successor provisions and regulations thereto.
(c) "Committee" means the committee of the Board appointed by the
Board to administer the Plan. Unless otherwise determined by the Board, the
Committee shall be the Compensation Committee of the Board.
(d) "Common Stock" means the Common Stock of the Company, no par
value per share.
EXHIBIT 4.8
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(e) "Compensation" means any cash remuneration earned by a
Nonemployee Director including, but not limited to, annual retainer fees for
service on the Board or a Board committee, fees for attending a meeting of the
Board of a Board committee, and any other fees paid to Nonemployee Directors as
determined by the Board, but excluding any reimbursement of expenses incurred
in connection with meeting attendance and excluding any compensation earned by
a Nonemployee Director other than in his or her capacity as a Director.
(f) "Company" means Alpha Microsystems, a California corporation,
or any successor thereto.
(g) "Director" means a member of the Board.
(h) "Employee" means any officer or other regular full-time
employee (as defined in accordance with Section 3401(c) of the Code) of the
Company, or of any corporation which is a Subsidiary.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended. References to any provision of the Exchange Act include the rules and
regulations thereunder and successor provisions and rules and regulations
thereto.
(j) "Fair Market Value" of a share of the Common Stock means, as
of any given date, (i) the closing sale price of a share of Common Stock on the
principal exchange on which shares of Common Stock are then trading, or if the
Common Stock is not traded on an exchange, as reported on the National
Association of Securities Dealers, Inc. Automated Quotation ("Nasdaq") National
Market on such date, or if shares were not traded on such date, then on the
closest preceding date on which a trade occurred, or (ii) if the Common Stock
is not traded on an exchange or on the Nasdaq National Market, the mean between
the closing representative bid and asked prices for the Common Stock on such
date as reported on the over-the-counter market by Nasdaq or, if Nasdaq is not
then in existence, by a successor quotation system; or (iii) if the Common
Stock is not publicly traded, the fair market value of a share of Common Stock
as established by the Committee acting in good faith and considering all
relevant and available information and data.
(k) "Nonemployee Director" means any member of the Board who is
not an Employee of the Company or a Subsidiary.
(l) "Participant" means each Nonemployee Director who elects to
participate in the Plan in accordance with the terms of the Plan.
(m) "Plan" means this 1996 Nonemployee Director Stock Compensation
Plan.
(n) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange
Act, as such Rule may be amended or superseded from time to time.
(o) "Subsidiary" means any corporation, as defined in Section
424(f) of the Code, in an unbroken chain of corporations beginning with the
Company if each of the corporations other
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than the last corporation in the unbroken chain then owns stock possessing
fifty percent (50%) or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
(p) "Termination of Board Service" means the time when a Director
ceases to be a member of the Board for any reason, including, but not by way of
limitation, a termination by resignation, expiration of term, removal (with or
without cause), retirement or death.
6. SHARES AVAILABLE UNDER THE PLAN. Subject to adjustment as
provided in Section 7, the total number of shares of Common Stock reserved and
available for issuance under the Plan is one hundred thousand (100,000). Such
shares may be authorized but unissued shares, treasury shares, or shares
acquired in the market for the account of the Participant, or a combination
thereof.
7. ADMINISTRATION OF THE PLAN. The Plan will be administered by
the Committee. The Committee shall have the full power, discretion, and
authority to interpret and administer the Plan consistent with the Plan
provisions and to delegate to employees of the Company or any Subsidiary the
authority to perform administrative functions under the Plan; provided,
however, in no event shall the Committee have the power to determine the
persons eligible to participate in the Plan or the amount, price, or timing of
Common Stock to be issued under the Plan, all such determinations being
automatic pursuant to Plan provisions. The Committee shall serve at the
pleasure of the Board of Directors. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members of the Committee
present at any meeting at which a quorum is present, or acts approved in
writing by a majority of the members of the Committee, shall be deemed the acts
of the Committee. Any action taken by the Committee with respect to the
administration of the Plan which would result in any Nonemployee Director
ceasing to be a "disinterested person" for purposes of any other plan
maintained by the Company within the meaning of Rule 16b-3 of the Exchange Act
or which would result in a Nonemployee Director ceasing to be an "outside
director" within the meaning of Section 162(m) of the Code, shall be null and
void.
8. ELIGIBILITY. Each Director of the Company who, on any date on
which Compensation is to be paid, is not an Employee of the Company, will be
eligible, at such date, to be granted shares of Common Stock under Section 6.
A Nonemployee Director's eligibility under the Plan automatically terminates on
the date of Termination of Board Service. No person other than those specified
in this Section 5 will be eligible to participate in the Plan.
9. RECEIPT OF STOCK IN LIEU OF CASH COMPENSATION. Each
Nonemployee Director of the Company may, in lieu of receipt of Compensation in
his or her capacity as a Nonemployee Director in cash, receive such
Compensation in the form of Common Stock in accordance with this Section 6;
provided, however, that such Nonemployee Director is eligible to do so under
Section 5 at the date any such Compensation is otherwise payable.
(a) Election to Receive Stock. Each Nonemployee Director who
elects to receive Compensation for a given calendar year in the form of Common
Stock must file an irrevocable
EXHIBIT 4.8
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written election with the Secretary of the Company not later than December 31
of the year preceding such calendar year. Subject to compliance with Rule
16b-3 promulgated under the Exchange Act, elections to receive Compensation in
the form of Common Stock may also be made from time to time during any calendar
year. A Nonemployee Director may elect to receive the payment of all of the
Compensation payable for services as a Nonemployee Director in Common Stock by
completing and delivering to the Secretary of the Company a Stock Payment
Election Form in the form provided by the Company. Elections may only be made
with respect to all Compensation payable to a Nonemployee Director and may not
be made with respect to only a portion of Compensation.
An election to receive Common Stock shall remain in effect until
terminated or changed as provided herein. An election by a Nonemployee
Director shall be deemed to be continuing and therefore applicable to
subsequent Plan years unless the Nonemployee Director revokes or changes such
election by filing a new election form.
Notwithstanding the foregoing, with respect to the calendar year
commencing 1996, each Nonemployee Director shall be deemed to have elected to
receive either cash Compensation or Common Stock in lieu of receipt of cash
Compensation for calendar year 1996 in accordance with the election of such
Nonemployee Director made at the December 1, 1995 Board meeting, which election
must be confirmed in writing not later than ten (10) days following adoption of
this Plan by the Shareholder.
(b) Payment of Compensation in the Form of Stock. At any date on
which Compensation is payable to a Participant who has elected to receive such
Compensation in the form of Common Stock, the Company will issue to such
Participant, or to an account maintained by a third party and designated by
such Participant, a number of shares of Common Stock having an aggregate Fair
Market Value at that date equal to the compensation, or as nearly as possible
equal to the Compensation (but in no event greater than the Compensation), that
would have been payable at such date but for the Participant's election to
receive Common Stock in lieu thereof. Any fractional shares resulting from
this calculation will be payable in cash to the Participant. Notwithstanding
the foregoing, with respect to calendar year 1996, shares of Common Stock that
would have been issued to a Participant in accordance with this Section 6(b) on
the date on which such Compensation was payable to such Participant, shall be
issued to such Participant on the date that the Plan is first approved by the
Company's shareholders. The number of shares of Common Stock to be issued to
such Participants with respect to calendar year 1996, however, shall be based
upon the Fair Market Value of a share of Common Stock on the date the
Compensation would have been payable to the Participant but for the
Participant's election to receive Common Stock in lieu thereof.
(c) Restrictions on Stock Received in Lieu of Cash Compensation.
Common Stock received in lieu of Compensation may not be sold, transferred,
encumbered, or hypothecated for a period of six (6) months and one (1) day
following the date of receipt.
EXHIBIT 4.8
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10. ADJUSTMENT PROVISIONS
(a) Corporate Transactions and Events. In the event any
recapitalization, reorganization, merger, consolidation, spin-off, combination,
repurchase, exchange of shares or other securities of the Company, stock split
or reverse split, stock dividend, liquidation, dissolution, or other similar
corporate transaction or event affects the Common Stock such that the Committee
determines that an adjustment is appropriate in order to prevent dilution or
enlargement of each Participant's rights under the Plan, then the Committee may
make an adjustment in the number and/or kind of securities issuable under the
Plan in a manner that is proportionate to the change to the Common Stock and
otherwise equitable in the number and kind of shares of Common Stock remaining
available for issuance under the Plan.
(b) Insufficient Number of Shares. If at any date an insufficient
number of shares of Common Stock are available under the Plan for the receipt
of Compensation in the form of Common Stock, Compensation shall be paid in the
form of Common Stock proportionately among Nonemployee Directors who are
eligible to participate and who have elected to receive Common Stock in lieu of
Compensation to the extent shares are then available under the Plan. Shares of
Common Stock so issued to Participants shall be rounded down to the greatest
number of whole shares.
11. GENERAL PROVISIONS
(a) Amendment and Discontinuance. The Board may alter, amend,
suspend, discontinue or terminate the Plan, provided that no such action shall
deprive any Participant without such Participant's consent of any rights
theretofore granted pursuant hereto and provided further that the provisions
hereof with respect to the amount, price and timing of issuance of Common Stock
hereunder shall not be amended more than once every six (6) months other than
to comport with changes in the Code, the Employee Retirement Income Security
Act or the rules thereunder. The Board of Directors may, in its discretion,
submit any proposed amendment to the Plan to the shareholders of the Company
for approval and shall submit proposed amendments to the Plan to the
shareholders of the Company for approval if such approval is required in order
for the Plan to comply with Rule 16b-3 of the Exchange Act (or any successor
rule).
(b) Compliance with Governmental Regulations. Notwithstanding any
provision of the Plan or the terms of any agreement entered into pursuant to
the Plan, the Company shall not be required to issue any shares hereunder prior
to registration of the shares subject to the Plan under the Securities Act of
1933, as amended, or the Exchange Act, if such registration shall be necessary,
or before compliance by the Company or any Participant with any other
provisions of either of those acts or of regulations or rulings of the
Securities and Exchange Commission thereunder, or before compliance with other
federal and state laws and regulations and rulings thereunder, including the
rules of the National Association of Securities Dealers, Inc. The Company
shall use its best efforts to effect such registrations and to comply with such
laws, regulations and rulings forthwith upon advice by its counsel that any
such registration or compliance is necessary.
EXHIBIT 4.8
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(c) Compliance with Rule 16b-3. It is the intent of the Company
that this Plan and all transactions under this Plan comply in all respects with
applicable provisions of Rule 16b-3 under the Exchange Act (or any successor
rule). Accordingly, if any provision of this Plan, any agreement hereunder, or
any transaction pursuant to the Plan does not comply with the requirements of
Rule 16b-3 as then applicable to a Participant, such provisions will be
construed or deemed amended to the extent necessary to conform to the
applicable requirements with respect to such Participant. To the extent that
any provision of the Plan, any agreement hereunder, or any action by the Board
or the Committee fails to so comply, it shall be deemed null and void to the
extent permitted by law and to the extent deemed advisable by the Board or the
Committee.
(d) No Right to Continue as a Director. Nothing contained in the
Plan or any agreement hereunder will confer upon any Participant any right to
continue to serve as a Nonemployee Director of the Company.
(e) No Shareholder Rights Conferred. Nothing contained in the
Plan or any agreement hereunder will confer upon any Participant (or any person
or entity claiming rights by or through a Participant) any rights of a
shareholder of the Company unless and until shares of Common Stock are in fact
issued to such Participant (or person).
(f) Nonexclusivity of the Plan. Neither the adoption of the Plan
by the Board nor its submission to the shareholders of the Company for approval
shall be construed as creating any limitations on the power of the Board to
adopt such other compensatory arrangements for Nonemployee Directors as it may
deem desirable.
(g) Governing Law. To the extent not preempted by Federal law,
the Plan and any agreement pursuant to the Plan shall be construed in
accordance with and governed by the internal laws of the State of California.
(h) Severability. In the event any provision of the Plan or any
action taken pursuant to the Plan shall be held illegal or invalid for any
reason, the illegality or invalidity shall not affect the remaining parts of
the Plan, and the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included, and the illegal or invalid action
shall be deemed null and void.
(i) Withholding Taxes. To the extent required by applicable law
or regulation, each Nonemployee Director must arrange with the Company for the
payment of any federal, state or local income or other tax applicable to the
receipt of Common Stock under the Plan before the Company shall be required to
deliver to the Nonemployee Director a certificate for Common Stock.
(j) Availability of Plan. A copy of this Plan shall be delivered
to any Nonemployee Director making reasonable inquiry concerning the Plan.
(k) Notices. Any notice or other communication required or
permitted to be given pursuant to the Plan or under any agreement hereunder
must be in writing and may be given by registered or certified mail, and if
given by registered or certified mail, shall be determined to have
EXHIBIT 4.8
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been given and received on the date three (3) days after a registered or
certified letter containing such notice, properly addressed with postage
prepaid, is deposited in the United States mails; and if given other than by
registered or certified mail, it shall be deemed to have been given when
delivered to and received by the party to whom addressed. Notice shall be
given to Participants at their most recent addresses shown in the Company's
records. Notice to the Company shall be addressed to the Company at the
address of the Company's principal executive offices, to the attention of the
Secretary of the Company.
(l) Titles and Headings. Titles and headings of sections and
articles of this Plan are for convenience of reference only and shall not
affect the construction of any provision of this Plan.
12. EFFECTIVE DATE. The Plan will be effective if, and at such
time as, the shareholders of the Company have approved it by the affirmative
vote of the holders of a majority of the securities of the Company present, or
represented, and entitled to vote on the subject matter at a duly held meeting
of shareholders.
13. SHAREHOLDER APPROVAL. Shareholder approval of the Plan must
be obtained not later than the final adjournment of the first annual meeting of
shareholders of the Company held after the date the Board has adopted the Plan.
14. PLAN TERMINATION. Unless earlier terminated by action of the
Board, the Plan will remain in effect until such time as no shares of Common
Stock remain available for issuance under the Plan and the Company and
Participants have no further rights or obligations under the Plan.
I hereby certify that the foregoing Plan was duly adopted by the Board
of Directors of ALPHA MICROSYSTEMS on December 1, 1995 and by the shareholders
of ALPHA MICROSYSTEMS on August 13, 1996.
Executed on this 13th day of August, 1996.
/s/JOHN F. GLADE
------------------------------------
John F. Glade, Secretary
EXHIBIT 4.8
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<PAGE> 1
FIRST AMENDMENT TO ALPHA MICROSYSTEMS
1996 NONEMPLOYEE DIRECTOR STOCK COMPENSATION PLAN
THIS FIRST AMENDMENT TO ALPHA MICROSYSTEMS 1996 NONEMPLOYEE
DIRECTOR STOCK COMPENSATION PLAN (the "First Amendment") is hereby adopted by
Alpha Microsystems, a California corporation (the "Company"), effective as of
October 4, 1996.
R E C I T A L S :
A. The Alpha Microsystems 1996 Nonemployee Director
Stock Compensation Plan (the "Plan") was adopted by the Board of Directors of
the Company (the "Board") on December 1, 1995. The Plan was approved by the
shareholders of the Company on August 13, 1996.
B. Section 8(a) of the Plan provides that the Board may
alter or amend the Plan in the manner as contemplated by this First Amendment.
C. On October 4, 1996, the Board adopted resolutions (i)
providing for early compliance with new Rule 16b-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934,
as amended, and (ii) approving the form of this First Amendment which amends
the Plan to comply with the new Rule 16b-3.
A M E N D M E N T :
Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Plan.
The last sentence of Section 4 of the Plan is hereby amended
to read in its entirety as follows:
"Any action taken by the Committee with respect to the
administration of the Plan, which would result in a
Nonemployee Director ceasing to be an "outside director"
within the meaning of Section 162(m) of the Code, shall be
null and void."
I hereby certify that the foregoing First Amendment was duly
adopted by the Board of Directors of the Company on October 4, 1996.
Executed on this 4th day of October, 1996.
/s/JOHN F. GLADE
------------------------------------
John F. Glade, Secretary
EXHIBIT 4.9
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<PAGE> 1
ALPHA MICROSYSTEMS
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. This Alpha Microsystems Employee Stock
Purchase Plan (the "Plan") is intended to encourage and assist Employees (as
defined below) of Alpha Microsystems, a California corporation (the
"Corporation"), and the Employees of any present or future Parent (as defined
below) or Subsidiary (as defined below) of the Corporation in acquiring a stock
ownership interest in the Corporation (or such Parent or Subsidiary). The Plan
is intended to be an Employee Stock Purchase Plan under Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code"). The provisions of the
Plan shall be construed so as to extend and limit participation in a manner
consistent with the requirements of Section 423 of the Code.
2. Definitions. Where the following terms are used in
this Plan they shall have the meaning specified below, unless the context
clearly indicates otherwise.
(a) "Board" means the Board of Directors of the
Corporation.
(b) "Code" means the Internal Revenue Code of
1986, as amended. References to any provision of the Code include regulations
thereunder and successor provisions and regulations thereto.
(c) "Committee" means the committee of the Board
appointed by the Board to administer the Plan. Unless otherwise determined by
the Board, the Committee shall be the Compensation Committee of the Board.
(d) "Common Stock" means the Common Stock of the
Corporation, no par value per share.
(e) "Corporation" means Alpha Microsystems, a
California corporation, or any successor thereto.
(f) "Employee" means any officer or other regular
full-time or part-time employee of the Corporation, or of any corporation which
is a Parent or Subsidiary of the Corporation.
(g) "Exchange Act" means the Securities Exchange
Act of 1934, as amended. References to any provision of the Exchange Act
include the rules and regulations thereunder and successor provisions and rules
and regulations thereto.
(h) "Fair Market Value" of a share of the Common
Stock means, as of any given date, (i) the closing sale price of a share of
Common Stock on the principal exchange on which shares of Common Stock are then
trading, or if the Common Stock is not traded on an exchange, as reported on
the National Association of Securities Dealers, Inc. Automated Quotation
("Nasdaq") National Market on such date, or if shares were not traded on such
date,
EXHIBIT 4.10
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<PAGE> 2
then on the closest preceding date on which a trade occurred, or (ii) if the
Common Stock is not traded on an exchange or on the Nasdaq National Market, the
mean between the closing representative bid and asked prices for the Common
Stock on such date as reported on the over- the-counter market by Nasdaq or, if
Nasdaq is not then in existence, by a successor quotation system; or (iii) if
the Common Stock is not publicly traded, the fair market value of a share of
Common Stock as established by the Committee acting in good faith and
considering all relevant and available information and data.
(i) "Parent" means a parent corporation as that
term is defined in Section 424(e) of the Code.
(j) "Participant" means each Employee who is
eligible to, and elects to, participate in the Plan in accordance with the
terms of the Plan.
(k) "Plan" means this Alpha Microsystems Employee
Stock Purchase Plan.
(l) "Rule 16b-3" means Rule 16b-3 promulgated
under the Exchange Act, as such Rule may be amended or superseded from time to
time.
(m) "Semi-Annual Period" means the six (6) month
period ending on the last day of June and December of each year, with the first
Semi-Annual Period to commence on July 1, 1996.
(n) "Shares" means shares of Common Stock of the
Corporation reserved for sale under the Plan.
(o) "Subsidiary" means any corporation, as
defined in Section 424(f) of the Code, in an unbroken chain of corporations
beginning with the Corporation if each of the corporations other than the last
corporation in the unbroken chain then owns stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
3. Stock Subject to the Plan. Subject to adjustment
pursuant to Section 12 of the Plan, the aggregate number of Shares of the
Corporation which may be sold under the Plan is 350,000. The Shares may be
authorized but unissued shares, treasury shares, or shares acquired in the
market, or any combination thereof. During the term of the Plan, the
Corporation shall at all times reserve and keep available such number of shares
of its Common Stock as shall be sufficient to satisfy the requirements of the
Plan.
4. Eligibility. Anyone who becomes an Employee of the
Corporation or any Parent or Subsidiary of the Corporation (except (a) any
Employee who directly or by attribution owns stock, and/or holds options to
purchase stock, possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Corporation or any Parent
or Subsidiary of the Corporation either at the start of any Semi-Annual Period
or immediately after such participation in the Plan (for purposes of the
foregoing, the rules of Section 424(d) of the
EXHIBIT 4.10
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<PAGE> 3
Code shall apply in determining stock ownership of any Employee), (b) those
Employees whose customary employment is twenty (20) hours or less per week, and
(c) those Employees whose customary employment is for not more than five (5)
months in any calendar year) is eligible to become a member of the Plan on the
first day of the Semi-Annual Period following the second anniversary of the
Employee's commencement of employment with the Corporation. Notwithstanding
the foregoing, no Employee shall be entitled to purchase Shares under the Plan
and all other purchase plans of the Corporation and any Parent or Subsidiary of
the Corporation with an aggregate fair market value (determined at date of
grant) exceeding $25,000 per year for each calendar year in which such purchase
option is outstanding at any time.
5. Joining the Plan. Any eligible Employee's
participation in the Plan shall be effective as of the first day of the
Semi-Annual Period following the day on which the Employee completes, signs and
returns to the Corporation, or one of its present or future Parent or
Subsidiary corporations, a Stock Purchase Plan Application and Payroll
Deduction Authorization Form indicating his or her acceptance and agreement to
the Plan. Participation by any Employee in the Plan is entirely voluntary.
Except as provided in Section 4, all Employees who elect to participate in the
Plan shall have the same rights and privileges. Nothing in this Plan shall
confer upon any Employee any right to continue as an employee of the
Corporation or any Parent or Subsidiary of the Corporation, or shall interfere
with or restrict in any way the rights of the Corporation or any Parent or
Subsidiary of the Corporation, which are hereby expressly reserved, to
discharge the Employee at any time for any reason whatsoever, with or without
cause.
6. Participant's Contributions.
(a) Each Participant shall elect to make
contributions by payroll deduction of not less than one percent (1%) nor more
than ten percent (10%) of his or her gross compensation. All such payroll
deductions must be in increments of one percent (1%) of gross compensation.
(b) Subject to the maximum described above, a
Participant may, from time to time, elect in writing to increase or decrease
his or her rate of contribution; such change will become effective the first
day of the Semi-Annual Period following receipt by the Corporation of such
written election.
(c) The amount of each Participant's contribution
shall be held by the Corporation in an account maintained by the Corporation
and such contribution shall be credited, without interest, to such
Participant's individual account as of the last business day of the month
during which the compensation from which the contribution was deducted was
earned. A Participant may not make any separate cash payment into such
Participant's account. No interest will be paid on any money paid into the
Plan or credited to the account of any Participant. All payroll deductions
received or held by the Corporation under the Plan may be used by the
Corporation for any corporate purpose and the Corporation shall not be
obligated to segregate such payroll deductions.
EXHIBIT 4.10
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<PAGE> 4
(d) No Employee will be permitted to make
contributions for any period during which he or she is not receiving salary or
other compensation from the Corporation or one of its present or future Parent
or Subsidiary corporations.
7. Issuance of Shares.
(a) On the last trading of each Semi-Annul Period
during the term of the Plan, and provided the Participant has not before that
date advised the Corporation that he or she does not wish Shares purchased for
his or her account on that date, the Corporation shall apply the funds in the
Participant's account as of that date to the purchase of Shares of its Common
Stock in units of one (1) full Share or multiples thereof. No fractional
shares shall be purchased or issued.
(b) The per share cost to each Participant for
the Shares so purchased shall be eighty-five percent (85%) of the lower of (i)
the Fair Market Value of a share of the Common Stock on the first trading day
of the Semi-Annual Period (the "date of grant") or (ii) the Fair Market Value
of a share of the Common Stock on the last trading day of the Semi-Annual
Period (the "date of exercise").
(c) Any moneys remaining in such Participant's
account equaling less than the sum required to purchase one full Share, or
moneys remaining in such Participant's account by reason of application of the
provisions of Section 7(d) hereof, shall, unless otherwise requested by the
Participant, be held in the Participant's account for use during the next
Semi-Annual Period. Any moneys remaining in such Participant's account by
reason of his or her prior election not to purchase Shares in a given
Semi-Annual Period shall be disbursed to the Participant within thirty (30)
days of the end of such Semi-Annual Period. The Corporation shall as
expeditiously as possible after the last day of each Semi-Annual Period issue
to the Participant entitled thereto the certificate evidencing the Shares
issuable to him or her as provided herein.
(d) Notwithstanding anything above to the
contrary, (i) if the aggregate number of Shares that all Participants in the
Plan desire to purchase at the end of any Semi-Annual Period exceeds the number
of Shares then available under the Plan, the Shares available shall be
allocated among such Participants in proportion to their contributions during
the Semi-Annual Period (but no fractional Shares shall be purchased or issued)
and (ii) no funds in a Participant's account shall be applied to the purchase
of Shares and no Shares shall be issued hereunder, unless the issuance and sale
of such Shares are covered by an effective registration statement under the
Securities Act of 1933, as amended, or is exempt from such registration
requirements.
8. Termination of Participation. A Participant's
participation in the Plan will be terminated when the Participant (a)
voluntarily elects to withdraw his or her entire account, (b) resigns or is
discharged, with or without cause, from the Corporation or one of its present
or future Parent or Subsidiary corporations, (c) dies, or (d) does not receive
salary or other compensation from the Corporation or one of its present or
future Parent or Subsidiary corporations for twelve (12) consecutive months,
unless this period is due to illness, injury or for
EXHIBIT 4.10
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<PAGE> 5
other reasons approved by the Committee. Upon termination of participation,
the terminated Participant shall not be entitled to rejoin the Plan until the
first day of the Semi-Annual Period immediately following the Semi-Annual
Period in which the termination occurs. Except in the case of a voluntary
termination under Sections 7(c) and 8(a) hereof, if a termination of
participation occurs prior to the last trading of a Semi-Annual Period, (i)
Shares will be issued for the Semi-Annual Period in which the termination
occurred in accordance with the Plan based upon the balance in such
Participant's account on the date of termination of participation, (ii) no
further payroll deductions or contributions shall be permitted, and (iii) the
Participant shall be entitled to payment of the balance of the amount of his or
her individual account within thirty (30) days after the end of such
Semi-Annual Period.
9. Beneficiary.
(a) Each Participant may file a written
designation of a beneficiary who is to receive any Shares credited to such
Participant's account under the Plan in the event of the death of such
Participant prior to the last trading day of a Semi-Annual Period and/or prior
to delivery to such Participant of the certificates for such Shares. Such
designation may be changed by the Participant at any time by written notice
received by the Corporation.
(b) Upon the death of a Participant, promptly
following the end of the Semi-Annual Period during which the death occurred,
all Shares and amounts remaining in his or her account after the final purchase
of Shares in accordance with Section 7 hereof shall be paid or distributed to
the beneficiary or beneficiaries designated by such Participant, or in the
absence of such designation, to the executor or administrator of his or her
estate, and in either event the Corporation shall not be under any further
liability. If more than one (1) beneficiary is designated, then each
beneficiary shall receive the portion designated to be received by such
beneficiary by the Participant, or if no such designation is made, each
beneficiary shall receive an equal portion of the Shares and proceeds in the
account, provided that the Corporation may, in its sole discretion, make
adjustments in such distributions to avoid the issuance of fractional shares.
10. Administration of the Plan. The Plan will be
administered by the Committee. The Committee shall have the full power,
discretion, and authority to interpret and administer the Plan consistent with
the Plan provisions and to delegate to employees of the Corporation or any
Parent or Subsidiary the authority to perform administrative functions under
the Plan. The Committee shall serve at the pleasure of the Board of Directors.
A majority of the Committee shall constitute a quorum, and the acts of a
majority of the members of the Committee present at any meeting at which a
quorum is present, or acts approved in writing by a majority of the members of
the Committee, shall be deemed the acts of the Committee. All costs and
expenses incurred in administering the Plan shall be paid by the Corporation.
Any taxes applicable to a Participant's account shall be charged or credited to
the Participant's account by the Corporation.
11. Modification and Termination. Although the
Corporation expects to continue the Plan until such time as all of the Shares
reserved for issuance under the Plan have been sold, the Board and/or the
Committee reserve the right to amend, alter, suspend, discontinue
EXHIBIT 4.10
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<PAGE> 6
or terminate the Plan in its or their discretion; provided, however, that the
Board, shall not, without the approval of the shareholders of the Corporation
(i) increase the maximum number of Shares which may issued under the Plan
(except pursuant to Section 12 hereof) or (ii) amend the requirements as to the
class of employees eligible to purchase Shares under the Plan. The Board may,
in its discretion, submit any proposed amendment to the Plan to the
shareholders of the Corporation for approval and shall submit proposed
amendments to the Plan to the shareholders of the Corporation for approval if
such approval is required in order for the Plan to comply with Rule 16b-3 of
the Exchange Act (or any successor rule). In the event shareholder approval of
the Plan is not obtained prior to the date that is twelve (12) months after the
date this Plan is adopted by the Board, the Plan shall terminate. Upon such
termination, each Participant shall be entitled to payment of the amount of his
or her individual account within thirty (30) days after the date of termination
of the Plan and no Shares shall be issued to any Employee hereunder.
12. Adjustments Upon Changes in Capitalization.
Appropriate and proportionate adjustments shall be made in the number and class
of shares of stock subject to this Plan in the event of a stock dividend, stock
split, reverse stock split, recapitalization, reorganization, merger,
consolidation, acquisition, separation or like change in the capital structure
of the Corporation.
13. Transferability of Rights. No rights of any Employee
under this Plan shall be transferable by such Employee, by operation of law or
otherwise, except (a) to the extent that a Participant is permitted to
designate a beneficiary or beneficiaries as hereinabove provided, (b) to the
extent permitted by will or the laws of descent and distribution if no such
beneficiary has been designated and (c) pursuant to a qualified domestic
relations order as defined in Section 414(p) of the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended. Except as set
forth above, purchase options granted under this Plan are exercisable, during
an Employee's lifetime, only by the Employee.
14. Participation in Other Plans. Nothing herein
contained shall affect an Employee's right to participate in and receive
benefits under and in accordance with the then current provisions of any
pension, insurance or other employee welfare plan or program of the
Corporation.
15. Compliance with Governmental Regulations.
Notwithstanding any provision of the Plan or the terms of any agreement entered
into pursuant to the Plan, the Corporation shall not be required to issue any
shares hereunder prior to registration of the shares subject to the Plan under
the Securities Act of 1933, as amended, or the Exchange Act, if such
registration shall be necessary, or before compliance by the Corporation or any
Participant with any other provisions of either of those acts or of regulations
or rulings of the Securities and Exchange Commission thereunder, or before
compliance with other federal and state laws and regulations and rulings
thereunder, including the rules of the National Association of Securities
Dealers, Inc. The Corporation shall use its best efforts to effect such
registrations and to comply with such laws, regulations and rulings forthwith
upon advice by its counsel that any such registration or compliance is
necessary.
EXHIBIT 4.10
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16. Compliance with Rule 16b-3. It is the intent of the
Corporation that this Plan and all transactions under this Plan comply in all
respects with applicable provisions of Rule 16b-3 under the Exchange Act (or
any successor rule). Accordingly, if any provision of this Plan, any agreement
hereunder, or any transaction pursuant to the Plan does not comply with the
requirements of Rule 16b-3 as then applicable to a Participant, such provisions
will be construed or deemed amended to the extent necessary to conform to the
applicable requirements with respect to such Participant. To the extent that
any provision of the Plan, any agreement hereunder, or any action by the Board
or the Committee fails to so comply, it shall be deemed null and void to the
extent permitted by law and to the extent deemed advisable by the Board or the
Committee.
17. No Right to Continue as an Employee. Nothing
contained in the Plan or any agreement hereunder will confer upon any
Participant any right to continue to serve as an employee of the Corporation.
18. No Shareholder Rights Conferred. Nothing contained
in the Plan or any agreement hereunder will confer upon any Participant (or any
person or entity claiming rights by or through a Participant) any rights of a
shareholder of the Corporation unless and until shares of Common Stock are in
fact issued to such Participant (or person).
19. Governing Law. To the extent not preempted by
Federal law, the Plan and any agreement pursuant to the Plan shall be construed
in accordance with and governed by the internal laws of the State of
California.
20. Severability. In the event any provision of the Plan
or any action taken pursuant to the Plan shall be held illegal or invalid for
any reason, the illegality or invalidity shall not affect the remaining parts
of the Plan, and the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included, and the illegal or invalid action
shall be deemed null and void.
21. Withholding Taxes. To the extent required by
applicable law or regulation, each Employee must arrange with the Corporation
for the payment of any federal, state or local income or other tax applicable
to the receipt of Common Stock under the Plan before the Corporation shall be
required to deliver to the Employee a certificate for Shares of Common Stock.
22. Availability of Plan. A copy of this Plan shall be
delivered to any Employee making reasonable inquiry concerning the Plan.
23. Notices. Any notice or other communication required
or permitted to be given pursuant to the Plan or under any agreement hereunder
must be in writing and may be given by registered or certified mail, and if
given by registered or certified mail, shall be determined to have been given
and received on the date three (3) days after a registered or certified letter
containing such notice, properly addressed with postage prepaid, is deposited
in the United States mails; and if given other than by registered or certified
mail, it shall be deemed to have been given when delivered to and received by
the party to whom addressed. Notice shall be given to
EXHIBIT 4.10
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<PAGE> 8
Participants at their most recent addresses shown in the Corporation's records.
Notice to the Corporation shall be addressed to the Corporation at the address
of the Corporation's principal executive offices, to the attention of the
Secretary of the Corporation.
24. Titles and Headings. Titles and headings of sections
and articles of this Plan are for convenience of reference only and shall not
affect the construction of any provision of this Plan.
25. Effective Date of Plan; Shareholder Approval. The
Plan shall become effective on the date the Plan is adopted by the Board,
subject to approval by the affirmative votes of the holders of a majority of
the Common Stock present or represented at a duly held special or annual
meeting of the shareholders of the Corporation. The Plan shall be submitted to
the shareholders of the Corporation for their approval at the Annual Meeting of
Shareholders to be held in 1996. If the Plan is not approved at that meeting,
it shall not become effective, all amounts in each Participant's account shall
be promptly repaid to such Participant and no Shares shall be issued hereunder.
26. Plan Termination. Unless earlier terminated by
action of the Board or the Committee, the Plan will remain in effect until such
time as no Shares of Common Stock remain available for issuance under the Plan
and the Corporation and Participants have no further rights or obligations
under the Plan.
I hereby certify that the foregoing Plan was duly adopted by the Board
of Directors of ALPHA MICROSYSTEMS on June 14, 1996 and by the shareholders of
ALPHA MICROSYSTEMS on August 13, 1996.
Executed on this 13th day of August, 1996.
/s/JOHN F. GLADE
-----------------------------
John F. Glade, Secretary
EXHIBIT 4.10
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<PAGE> 1
______________, 1996
[LETTERHEAD]
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, 1996 Nonemployee
Director Stock Compensation Plan and Employee Stock Purchase 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
825,000 shares of Common Stock, no par value (the "Shares"), of Alpha
Microsystems, a California corporation (the "Company"). 375,000 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, as
amended (collectively, the "Stock Option Plan"), 100,000 of the Shares are
issuable to nonemployee directors who elect to receive shares of common stock
of the Company in lieu of cash compensation paid for service on the Board of
Directors in accordance with the terms of the Company's 1996 Nonemployee
Director Stock Compensation Plan (the "Compensation Plan"), and 350,000 of the
Shares are issuable to certain eligible employees who elect to purchase shares
of common stock of the Company through payroll deductions in accordance with
the Company's Employee Stock Purchase Plan (the "Purchase Plan", and
collectively with the Stock Option Plan and the Compensation Plan, the
"Plans").
EXHIBIT 5
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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 securities and "Blue Sky" laws, the
Shares will be, when issued in accordance with the terms and conditions of the
respective Plan, 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 LLP
ALLEN, MATKINS, LECK,
GAMBLE & MALLORY LLP
EXHIBIT 5
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<PAGE> 1
ALPHA MICROSYSTEMS
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Alpha Microsystems 1993 Employee Stock Option Plan,
as amended, 1996 Nonemployee Director Stock Compensation Plan and the Employee
Stock Purchase Plan of our report dated April 29, 1996, with respect to the
consolidated financial statements and schedule of Alpha Microsystems included
in the Annual Report (Form 10-K) for the year ended February 25, 1996 which was
filed with the Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
Orange County, California
January 30, 1997
EXHIBIT 23.1
