1
EXHIBIT 10.71
NONEMPLOYEE DIRECTOR
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is dated as of the ___ day of ____________, 1998
(the "Award Date"), and is between ALPHA MICROSYSTEMS, a California corporation
(the "Corporation"), and ____________ (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Optionee is a director of the Company; and
WHEREAS, as a director of the Company, Optionee is entitled
pursuant to Section 8(b)(i) of the Alpha Microsystems 1998 Stock Option and
Award Plan (the "Plan"), in lieu of cash compensation for service on the Board
of Directors, a non-qualified stock option to purchase all or any part of
_____________ authorized but unissued shares of Common Stock of the Corporation
upon the terms and conditions set forth herein and in the Plan.
NOW, THEREFORE, in consideration of the mutual promises and
covenants made herein and the mutual benefits to be derived herefrom, the
parties agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned to such terms in the Plan.
2. Grant of Option. This Agreement evidences the Corporation's
grant to the Optionee of the right and option to purchase, on the terms and
conditions set forth herein and in the Plan, all or any part of an aggregate of
______ shares of the Common Stock at the price of $_________ per share (the
"Option"), exercisable from time to time, subject to the provisions of this
Agreement and the Plan, prior to the close of business on the day before the
tenth anniversary of the Award Date (the "Expiration Date"). This Option is not
intended to constitute an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code").
3. Exercisability of Option. The Option may be exercised in
installments as to one-third of the aggregate number of shares set forth in
Section 2 hereof immediately, as to an additional one-third of such aggregate
number on and after the first anniversary of the Award Date and as to an
additional one third of such aggregate number of such shares on the second
anniversary of the Award Date, provided in each case that the Optionee continues
to serve as a Director of the Corporation.
2
To the extent the Optionee does not in any year purchase all or
any part of the shares to which the Optionee is entitled, the Optionee has the
right cumulatively thereafter to purchase any shares not so purchased and such
right shall continue until the Option terminates or expires. Fractional share
interests shall be disregarded, but may be cumulated.
4. Method of Exercise of Option.
(a) The Option shall be exercisable by the delivery to the
Corporation of a written notice stating the number of shares to be
purchased pursuant to the Option and accompanied by payment made in
accordance with and in a form permitted by Section 8(c)(i) of the Plan
for the full purchase price of the shares to be purchased, subject to
such further limitations and rules or procedures as the Administrator
may from time to time establish as to any non-cash payment. Shares
delivered in payment of the exercise price must have been owned by
Optionee for at least six months prior to the exercise. In addition, the
Optionee shall furnish any written statements required pursuant to
Section 12(a) of the Plan.
(b) The Corporation may require that the Optionee enter
into an arrangement providing for the payment by the Optionee to the
Corporation of any tax withholding obligation of the Corporation arising
by reason of (1) the exercise of the Option; or (2) the lapse of any
substantial risk of forfeiture to which the shares are subject at the
time of exercise.
5. Conditions to Exercise. Notwithstanding anything to the
contrary contained herein, the Option may not be exercised unless the shares
issuable upon exercise of the Option are then registered under the Securities
Act of 1933, as amended (the "Securities Act") or, if such shares are not then
so registered, the Corporation has determined that such exercise and issuance
would be exempt from the registration requirements of the Securities Act. If the
Corporation, in its sole discretion, shall determine that it is necessary to
comply with applicable securities laws, the certificate or certificates
representing the shares issuable upon exercise of the Option shall bear an
appropriate legend in form and substance, as determined by the Corporation,
giving notice of applicable restrictions on transfer under or in respect of such
laws.
6. Effect of Cessation of Optionee's Directorship. After the
Optionee ceases to be a Director of the Corporation, the Optionee's rights to
exercise any unexercised portion of this Option shall be as follows:
(a) If the Optionee ceases to be a Director by
reason of death, the portion of such Optionee's Option
exercisable at the time of such Optionee's death may thereafter
be immediately exercised by the legal representative of the
estate or by the legatee of the Optionee under the will of the
Optionee, for a period of one year from the date of such death or
until the expiration of the Option, whichever period is shorter.
-2-
3
(b) If the Optionee ceases to be a Director by
reason of Disability, that portion of the Option which was
exercisable at the time such Optionee ceased to be a Director may
thereafter be exercised for a period of one year from the date of
such cessation or until the expiration of the Option, whichever
period is shorter.
(c) If the Optionee ceases to be a Director for any
reason other than death or Disability, that portion of the Option
which was exercisable at the time such Optionee ceased to be a
Director may be exercised until the earlier to occur of (i) three
months from the date of such cessation, or three years if the
Optionee had served as a Director for ten years or more or had
reached the age of 70 at the date the Optionee ceased to be a
Director; or (ii) the expiration of the stated term of such
Non-Qualified Stock Option.
7. Investment Representation. The Optionee hereby covenants and
agrees with the Corporation that if, at the time of exercise of the Option,
there does not exist a Registration Statement on an appropriate form under the
Securities Act, which Registration Statement shall have become effective and
shall include a prospectus which is current with respect to the shares subject
to the Option, (i) that the Optionee is purchasing the shares for the Optionee's
own account and not with a view to the resale or distribution thereof, (ii) that
any subsequent offer for sale or sale of any such shares shall be made either
pursuant to (x) a Registration Statement on an appropriate form under the Act,
which Registration Statement shall have become effective and shall be current
with respect to the shares being offered and sold, or (y) a specific exemption
from the registration requirements of the Act, but in claiming such exemption,
the Optionee shall, prior to any offer for sale of sale of such shares, obtain a
favorable written opinion from counsel for or approved by the Corporation as to
the applicability of such exemption, and (iii) that the Optionee agrees that the
certificates evidencing such shares shall bear a legend to the effect of the
foregoing.
8. Non-Transferability of Option. The Option and any other rights
of the Optionee under this Agreement or the Plan are nontransferable except as
provided in Section 8(c)(4) of the Plan.
9. Notices. Any notice to be given under the terms of this
Agreement shall be in writing and addressed to the Corporation at its principal
office located at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, to
the attention of the Chief Financial Officer and to the Optionee at the address
given beneath the Optionee's signature hereto, or at such other address as
either party may hereafter designate in writing to the other.
10. Plan. The Option and all rights of Optionee thereunder are
subject to, and the Optionee agrees to be bound by, all of the terms and
conditions of the provisions of the Plan, incorporated herein by this reference,
to the extent such provisions are applicable to options granted to Optionee. The
Optionee acknowledges receipt of a copy of the Plan, which is made a part hereof
by this reference, and agrees to be bound by the terms thereof. Unless otherwise
expressly provided in other Sections of this Agreement, provisions of the Plan
that confer
-3-
4
discretionary authority on the Administrator do not (and shall not be deemed to)
create any rights in the Optionee unless such rights are expressly set forth
herein or are otherwise in the sole discretion of the Administrator so conferred
by appropriate action of the Administrator under the Plan after the date hereof.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to
be executed on its behalf by a duly authorized officer and the Optionee has
hereunto set his or her hand.
ALPHA MICROSYSTEMS,
a California corporation
By:___________________________________________
Name:______________________________________
Title:_____________________________________
OPTIONEE
______________________________________________
(Signature)
______________________________________________
(Print Name)
______________________________________________
(Address)
______________________________________________
(City, State, Zip Code)
-4-
