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EXHIBIT 10.156
ALPHA MICROSYSTEMS
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AGREEMENT TO GRANT INCENTIVE STOCK OPTION
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(pursuant to 1993 EMPLOYEE STOCK OPTION PLAN)
THIS AGREEMENT TO GRANT INCENTIVE STOCK OPTION ("Agreement")
is entered into effective as of May 5, 1995 between Alpha Microsystems (the
"Company") and Xxxx X. Xxxxx ("Employee"). Unless otherwise defined herein,
capitalized words used in this Agreement shall have the same meaning as such
terms are defined in the Company's 1993 Employee Stock Option Plan (the
"Plan").
R E C I T A L S
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A. The Company has adopted and the shareholders of the
Company have approved the Plan, which is intended to provide incentive to key
employees of the Company and its subsidiaries, to encourage proprietary
interest in the Company, to encourage employees to remain in the employee of
the Company and its subsidiaries, and to attract new employees with outstanding
qualifications.
B. Pursuant to the terms of the Plan, the Committee
appointed by the Board of the Company to administer the Plan (the "Committee")
has granted to Employee stock options as set forth herein.
C. Employee and the Company execute this Agreement to
reflect the terms of the options which have been granted to employee.
The parties hereto agree as follows:
1. Grant. Pursuant to action taken by the Committee on
May 5, 1995 (the "Effective Date"), the Company irrevocably granted to the
Employee as of the Effective Date the right and option to purchase all or any
part of an aggregate of Seven Thousand Five Hundred (7,500) shares of the
Common Stock of the Company, such number being subject to adjustment as set
forth in the Plan, on the terms and conditions set forth herein.
2. Purchase Price. The exercise price for which the
option may be exercised shall be equal to the last sales price of the Common
Stock on the NASDAQ National Market System on the Effective Date, or if no sale
occurs on such date, the mean between the highest bid and lower asked price as
of the close of business on the Effective Date, which the parties acknowledge
was $.78125 ($25/32).
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3. Exercisability. The option granted herein shall
become exercisable in cumulative increments at the following times and in the
following amounts:
(a) with respect to 50% of the underlying shares
of Common Stock commencing, on the first anniversary of the Effective
Date;
(b) with respect to an additional 25% of the
underlying shares of Common Stock, commencing on the second
anniversary of the Effective Date; and
(c) with respect to the balance of the underlying
shares of Common Stock, commencing on the third anniversary of the
Effective Date of this Agreement.
The options granted hereunder shall lapse and expire on the
fifth (5th) anniversary of the Effective Date.
If Employee does not purchase the full number of shares he/she
is entitled to purchase in any one year, the right to purchase such shares
carries over to the subsequent years during the term of this option.
Notwithstanding the foregoing, this option shall automatically
become fully exercisable upon a "change in control of the Corporation," as such
term is defined in Section 12 of the Company's 1993 Stock Option Plan, as
amended.
4. Exercise. This option may be exercised, subject to
the terms and conditions 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 paid therefor and by 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
1993 Stock Option Plan.
5. Termination of Employment. This option may not be
exercised after Employee ceases to be an Employee of the Company except to the
extent that this option was exercisable at the time of such cessation. This
option may not be exercised after its term expires or is otherwise canceled.
(a) Retirement. If Employee ceases to be an
employee because of Retirement (and not on account of misconduct as
determined below), then Employee may, subject to the restrictions
referred to in Section 7(f) of the Company's 1993 Stock Option Plan,
exercise this option at any time within ninety (90) days after
cessation of employment, but only to the extent that, at the date of
cessation of employment, Employee's right to exercise this option had
accrued pursuant to the terms of this Agreement and had not previously
been exercised.
(b) Death. If Employee dies while he or she is
an employee, or having ceasing to be an employee, but during the
period during which he or she could have exercised this option under
this Agreement, and has not fully exercised this option, then this
option may be exercised in full, subject to the restrictions referred
to in Section 7(f) of
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the Plan, at any time within twelve (12) months after the Employee's
death by the executor or administrator of his or her estate or by any
person or persons who have acquired this option directly from the
Employee by bequest or inheritance, but, only to the extent that, at
the date of death, the Employee'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.
(c) Disability. If Employee ceases active
service by reason of Disability, Employee shall have the right,
subject to the restrictions referred to in Section 7(f) of the Plan,
to exercise this option at any time within twelve (12) months after
such cessation of employment, but, only to the extent that, at the
date of such cessation of employment, Employee's right to exercise
this option had accrued pursuant to the terms of this Agreement and
had not previously been exercised.
(d) Misconduct. If Employee resigns or is
discharged or terminated on account of misconduct (as defined in the
Plan), this option shall terminate and shall no longer be exercisable
upon notice of such resignation, discharge or termination. If
Employee resigns or is discharged or terminated on account of
misconduct, neither the Employee nor his/her estate shall be entitled
to exercise this option with respect to any Shares whatsoever after
such resignation, discharge or termination, whether or not after such
resignation, discharge or termination Employee may receive payment
from the Company for vacation pay, for services rendered prior to
resignation, discharge or termination, for services for the day on
which resignation, discharge or termination occurs, for salary in lieu
of notice, or for other benefits. Any determination made by the
Administrator that the Employee resigned or was discharged or
terminated for misconduct shall be binding on Employee.
(e) Other Reasons. If Employee ceases to be an
employee for any reason other than those mentioned above in
subsections (a), (b), (c) or (d), Employee shall have the right,
subject to the restrictions referred to in Section 7(f) of the Plan,
to exercise this 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, Employee's
right to exercise this option had accrued pursuant to the terms of
this Agreement and had not previously been exercised.
Employee's service to or employment with the Company shall not
be considered as having been terminated while Employee is on military or sick
leave or other bona fide leave of absence (such as temporary employment by the
Government) if the period of such leave does not exceed ninety (90) days, or,
if longer, so long as Employee's right to re-employment with the Company is
guaranteed either by statute or by contract. Where the period of such leave
exceeds ninety (90) days and where Employee's rights to re-employment is not
guaranteed either by statute or by contract, Employee's employment will be
deemed to have terminated on the ninety-first (91st) day of such leave.
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6. Transferability. During the lifetime of Employee,
this option shall be exercisable only by Employee and shall not be assignable
or transferable. In the event of Employee's death, this option shall not be
transferable by Employee 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 of
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
Employee's rights hereunder to terminate.
7. 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.
Further, the Board of Directors of the Company may require as
a condition of issuance of any Common Stock under this option that Employee
furnish a written representation that he/she is acquiring the Common Stock for
investment and not with a view to distribution to the public.
Further, 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.
8. Successor. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs, beneficiaries, executors and administrators.
9. Paragraph Headings. Paragraph headings are for
convenience only and are not part of the contest.
10. Stock Option Plan. This Agreement shall be subject
to all of the provisions of the 1993 Stock Option Plan of the Company, as
amended from time to time, and such provisions are incorporated herein by this
reference.
11. Incentive Stock Option. This option is intended to
qualify as an Incentive Stock Option under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"). In the event the $100,000 limit
concerning the exercisability of incentive stock options by an optionee during
any calendar year is exceeded, only the portion of this option that exceeds
that limit shall constitute a nonstatutory stock option and this shall not
cause the terms of this Agreement to cease to apply or be effective.
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12. Construction. In the event of any conflict between
the terms and provisions of this Agreement and the terms and provisions of the
Plan, which are incorporated herein by reference, the terms and provisions of
the Plan shall prevail.
13. Execution. This Agreement is executed as of the date
first written above.
ALPHA MICROSYSTEMS
By: XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx,
Chairman of the Board
EMPLOYEE:
XXXX X. XXXXX
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Xxxx X. Xxxxx
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