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EXHIBIT 10.70
INCENTIVE STOCK OPTION AGREEMENT
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THIS AGREEMENT is dated as of the ___ day of ____________,1998,
and is between ALPHA MICROSYSTEMS, a California corporation (the "Corporation"),
and ___________________________ (the "Employee").
W I T N E S S E T H:
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WHEREAS, pursuant to the Alpha Microsystems 1998 Stock Option and
Award Plan (the "Plan"), the Corporation has granted to the Employee, effective
as of ______________, 19__ (the "Award Date"), an 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 Employee 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"). Such price equals
the Fair Market Value of the Corporation's Common Stock as of the Award Date. It
is the intent of the Corporation that this Option 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. Except as earlier permitted by or
pursuant to the Plan or by resolution of the Committee adopted after the date
hereof, no shares may be purchased by exercise of the Option until the
expiration of twelve months after the Award Date. The Option may be exercised in
installments as to ___% of the aggregate number of shares set forth in Section 2
hereof on and after the _______ anniversary of the Award Date and as to an
additional ___% of such aggregate number of such shares on each of the
___________ and ______________ anniversaries of the Award Date.
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To the extent the Employee does not in any year purchase all or
any part of the shares to which the Employee is entitled, the Employee 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. Limitation on Exercise of Option. In the event the Employee is
granted incentive stock options (whether under this Agreement or any other
incentive stock option agreement) and the aggregate fair market value
(determined as of the respective dates of grant of such options) of the Common
Stock with respect to which such options are first exercisable in any calendar
year exceeds $100,000, the most recently granted options shall be treated as
nonqualified stock options to the extent of the excess. In addition, in the case
of simultaneously granted options, the Corporation may, in the manner and to the
extent permitted by law, designate which shares are to be treated as stock
acquired pursuant to the exercise of an incentive stock option.
5. 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 in Section 5(c)(iv) 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
Employee for at least six months prior to the exercise. In addition, the
Employee shall furnish any written statements required pursuant to
Section 12(a) of the Plan.
(b) The Corporation may require that the Employee enter
into an arrangement providing for the payment by the Employee to the
Corporation of any tax withholding obligation of the Corporation arising
by reason of (1) the exercise of the Option; (2) the lapse of any
substantial risk of forfeiture to which the shares are subject at the
time of exercise; or (3) the disposition of shares acquired upon such
exercise.
6. 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.
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7. Effect of Termination of Employment or Death: Change in
Subsidiary Status. The Option and all other rights hereunder, to the extent not
exercised, shall terminate and become null and void at such time as the Employee
ceases to be employed by either the Corporation or any Subsidiary, except that:
(a) if the Employee voluntarily terminates or resigns, the
Employee may at any time within a period of three months after such
termination exercise the Option to the extent the Option was exercisable
at the date of such termination;
(b) if the Employee terminates by reason of becoming
permanently and totally disabled (within the meaning of Code Section
22(e)(3)), then the Option shall, to the extent not theretofore
exercised, fully vest and may be exercised within a period of one year
after the Employee's termination from employment;
(c) if the Employee dies prior to a termination of
employment, or within three months after a termination of employment
under subsection (a) or (b) above, then the Option may be exercised
within a period of one year after the Employee's termination from
employment pursuant to the provisions of Section 5(g) of the Plan;
provided, however, that in no event may the Option be exercised by anyone under
this Section 7 or otherwise after the Expiration Date. If Employee is employed
by an entity which ceases to be a Subsidiary, such event shall be deemed for
purposes of this Section 7 to be a termination of employment described in
subsection (a) in respect of Employee. Absence from work caused by military
service or authorized sick leave shall not be considered as a termination of
employment for purposes of this Section 7 if the period of such absence does not
exceed 90 (ninety) days, or if longer, so long as the Employee's right to
reemployment with the Corporation or a Subsidiary is guaranteed either by
statute or by contract. Where the period of such absence exceeds 90 days and
where the individual's right to reemployment is not guaranteed either by statute
or by contract, the Employee's employment shall be deemed to have terminated
pursuant to subsection (a) of this Section 7 on the 91st day of such absence.
8. Investment Representation. You hereby covenant and agree 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 you are purchasing the shares for your 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, you 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 you agree that the certificates evidencing such shares
shall bear a legend to the effect of the foregoing.
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9. Non-Transferability of Option. The Option and any other rights
of the Employee under this Agreement or the Plan are nontransferable except as
provided in Section 5(f) of the Plan.
10. 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 Employee at the address
given beneath the Employee's signature hereto, or at such other address as
either party may hereafter designate in writing to the other.
11. Plan. The Option and all rights of Employee thereunder are
subject to, and the Employee 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 Eligible
Employees. The Employee 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 discretionary authority on the
Administrator do not (and shall not be deemed to) create any rights in the
Employee 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.
12. Notice of Disposition. The Employee agrees to notify the
Corporation of any sale or other disposition of any shares of Common Stock
received upon exercise of the Option, if such sale or disposition occurs within
two years after the Award Date or within one year after the date of such
exercise.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to
be executed on its behalf by a duly authorized officer and the Employee has
hereunto set his or her hand.
ALPHA MICROSYSTEMS,
a California corporation
By:__________________________________________
Name:_____________________________________
Title:____________________________________
EMPLOYEE
_____________________________________________
(Signature)
_____________________________________________
(Print Name)
_____________________________________________
(Address)
_____________________________________________
(City, State, Zip Code)
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