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Exhibit 10.146
ALPHA MICROSYSTEMS
AGREEMENT TO GRANT NONQUALIFIED STOCK OPTION
(AUTOMATIC ADDITIONAL OPTION GRANT PURSUANT TO DIRECTORS' STOCK OPTION PLAN)
THIS NONQUALIFIED STOCK OPTION AGREEMENT ("Agreement") is
entered into effective as of July 14, 1995 (the "Automatic Grant Date") by and
between ALPHA MICROSYSTEMS, a California corporation (the "Company"), and
Clarke E. Reynolds ("Director"). Unless otherwise defined herein, capitalized
words used in this Agreement shall have the same meaning as such terms are
defined in the Company's Directors' 1993 Stock Option Plan (the "Plan").
R E C I T A L S :
A. The Company has adopted and the shareholders of the
Company have approved the Plan.
B. Pursuant to the terms of the Plan, Directors of the
Company who satisfy certain conditions receive an automatic grant of Options to
purchase Common Stock of the Company.
C. The Company and Director execute this Agreement to
reflect the terms of an automatic grant.
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Automatic Grant. Pursuant to the terms of the Plan,
Director is granted as of the Automatic Grant Date an option to purchase Two
Thousand Five Hundred (2,500) Shares of the Company's Common Stock, at One
Dollar Twenty Five Cents ($1.25) per share, which is equal to one hundred
percent (100%) of the Fair Market Value of a share of the Company's Common
Stock on the Automatic Grant Date.
2. Exercise Period of Option. Subject to Section 4
below, the Options reflected herein shall become exercisable in cumulative
increments at the following times and in the following amounts:
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(a) With respect to 50% of the underlying shares
of Common Stock, as of the day immediately prior to the first annual
meeting of shareholders after the Automatic Grant Date;
(b) With respect to an additional 25% of the
underlying shares of Common Stock, as of the day immediately prior to
the second annual meeting of shareholders after the Automatic Grant
Date; and
(c) With respect to an additional 25% of the
underlying shares of Common Stock, on the day immediately prior to the
third annual meeting of shareholders after the Automatic Grant Date.
The options granted hereunder shall lapse and expire five (5)
years from the date of this Agreement.
Notwithstanding the foregoing but still subject to Section 4
below, this option shall automatically become fully exercisable upon a "change
in control" of the Company," as such term is defined in Section 2(d) of the
Company's Directors' Stock Option Plan.
3. Exercise. This option may be exercised on the terms
and conditions contained herein by giving ten (10) days' prior written notice
of exercise to the Company, specifying the number of shares to be purchased and
the price to be paid therefor and delivering a check in the amount of the
purchase price payable to the Company. The purchase price may also be paid, in
whole or in part, by delivery to the Company of outstanding shares of the
Company's Common Stock valued at Fair Market Value, as defined in the Company's
Directors' Stock Option Plan.
Director agrees, as a condition to the exercise of this
Option, to make appropriate arrangements with the Company for the satisfaction
of any Federal, state or local income tax withholding requirements and Federal
social security employment tax requirements applicable to the exercise of this
Option or the sale of Shares acquired under this Option.
4. Cessation of Directorship. No Option may be
exercised after Director ceases to be a director except to the extent that the
Option was exercisable at the time of such cessation. No Option may be
exercised after its term expires or is otherwise canceled.
(a) Death. If Director dies while he is a
director of the Company, or having ceased to be a director, but during
the period during which he could have exercised the Option under this
Agreement, and has not fully exercised this Option, then this Option
may be exercised in full, at any time within twelve (12) months after
the Director's death by the executor or administrator of his estate or
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by any person or persons who have acquired this option directly from
the Director by bequest or inheritance, but only to the extent that,
at the date of death, the Director's right to exercise this option had
accrued and had not been forfeited pursuant to the terms of this
Agreement and had not been previously exercised.
(b) Disability. If Director ceases active
service by reason of Disability, Director shall have the right to
exercise this Option at any time within twelve (12) months after such
cessation of directorship, but only to the extent that, at the date of
such cessation of directorship, Director's right to exercise this
Option had accrued pursuant to the terms of this Agreement and had not
previously been exercised.
(c) Other Reasons. If Director ceases to be a
Director for any reason other than those mentioned above in
subsections (a) or (b), Director shall have the right, subject to the
restrictions referred to in this Section 4 to exercise the Option at
any time within thirty (30) days following such cessation, discharge
or termination but, only to the extent that, at the date of cessation,
discharge or termination, the Optionee's right to exercise such Option
had accrued pursuant to the terms hereunder and had not previously
been exercised.
(d) Change in Control. If any Change in Control
of the Company should occur, then the exercise dates of the Options
granted pursuant to this Agreement shall automatically accelerate and
all Options granted under this Agreement shall become exercisable in
full. However, in no event shall any Option be exercisable after the
date of termination of this exercise period of such Option specified
in Sections 2(a), 2(b) or 2(c) above.
5. Transferability. During the lifetime of Director,
this Option shall be exercisable only by Director and shall not be assignable
or transferable. In the event of Director's death, this Option shall not be
transferable by Director other than by will or the laws of descent and
distribution. Any other attempted alienation, assignment, pledge,
hypothecation, attachment, execution or similar process, whether voluntary or
involuntary, with respect to all or any part of this Option or right hereunder,
shall be null and void and, at the Company's option, shall cause all of
Director's rights hereunder to terminate.
6. Securities Act and Other Regulatory Requirements.
This option is not exercisable, in whole or in part, and the Company is not
obligated to sell any share of the Company's Common Stock subject to this
Option, if such exercise or sale, in the opinion of counsel for the Company,
would violate the Securities Act of 1933 (or any other federal or state
statutes having similar requirements) as it may be in effect at that time.
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The Board of Directors of the Company may require as a
condition of issuance of any shares under this option that Director furnish a
written representation that he or she is acquiring the shares for investment
and not with a view to distribution to the public.
The Board of Directors of the Company may decide, in its sole
discretion, that the listing or qualification of the shares of stock subject to
the option under any securities exchange requirements or under any applicable
law is necessary or desirable. If such a decision is made, this Option shall
not be exercisable in whole or in part unless and until such listing,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Board of Directors of the Company.
7. Rights as a Shareholder. Director shall have no
rights as a shareholder with respect to any Shares covered by his Option
hereunder until the date of the issuance of a stock certificate for such
Shares. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property), distributions or other rights
for which the record date is prior to the date such stock certificate is
issued, except as provided in Section 9 hereof.
8. Six-Month Holding Period. Neither this Option nor
any Share issuable upon exercise of this Option, may be sold or otherwise
disposed of prior to the date that is six (6) months and one (1) day following
the Automatic Grant Date.
9. Recapitalizations. Subject to any required action by
shareholders, the number of Shares covered by this Option and the Exercise
Price thereof shall be proportionately adjusted for any increase or decrease in
the number of issued Shares resulting from a subdivision or consolidation of
Shares or the payment of a stock dividend (but only of Common Stock) or any
other increase or decrease in the number of issued Shares effected without
receipt of consideration by the Company.
Subject to any required action by shareholders, if the Company
is the surviving corporation in any merger or consolidation, this Option shall
pertain and apply to the securities to which a holder of the number of Shares
subject to this Option would have been entitled. If the Company is not the
surviving corporation in any merger or consolidation, then this Option shall be
fully vested and exercisable until five (5) days prior to such merger or
consolidation (but shall terminate thereafter) unless provisions are made in
connection with such transaction for the continuance of the Plan or the
assumption or the substitution for this Option of a new option covering the
stock of a successor employer corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices. A
dissolution or liquidation of the Company shall cause this Option to terminate.
Except as expressly provided in this Section 9, the Director
shall have no rights by reason of any subdivision or consolidation of shares of
stock of any class, the
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payment of any stock dividend or any other increase or decrease in the number
of shares of stock of any class or by reason of any dissolution, liquidation,
merger or consolidation or spin-off of assets or stock of another corporation,
and any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to this Option.
The grant of this Option shall not affect in any way the right
or power of the Company to make adjustments, reclassifications, reorganizations
or changes of its capital or business structure, to merge or consolidate or to
dissolve, liquidate, sell or transfer all or any part of its business or
assets.
10. Successors. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs, beneficiaries, executors and administrators.
11. Paragraph Headings. Paragraph headings are for
convenience only and are not part of the context.
12. Terms of Plan. This Agreement shall be subject to
all of the provisions of the Directors' Stock Option Plan of the Company, as
amended from time to time, and such provisions are incorporated herein by this
reference. In the event of any conflict between the terms and provisions of
this Agreement and the terms or provisions of the Plan, the provisions of the
Plan shall prevail.
13. Non-Qualified Stock Option. This option is not
intended to satisfy the requirements of Section 422 of the Internal Revenue
Code of 1986, as amended.
ALPHA MICROSYSTEMS
By: /s/ DOUGLAS J. TULLIO
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Name: Douglas J. Tullio
Title: President and Chief
Executive Officer
DIRECTOR:
/s/ CLARKE E. REYNOLDS
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Clarke E. Reynolds
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