bm20090824_8k-102.htm


    


    BELL
MICROPRODUCTS INC.

     

    2009
EQUITY INCENTIVE PLAN

     

    NOTICE
OF GRANT OF STOCK OPTION

     

    Unless
otherwise defined herein, the terms defined in the 2009 Equity Incentive Plan
(the “Plan”) will have the same defined meanings in this Notice of Grant of
Stock Option (the “Notice of Grant”) and Terms and Conditions of Stock Option
Grant, attached hereto as Exhibit A (together,
the “Agreement”).

     

    


    
      
        
          
            
              
                
                  
                    	
                            Participant:

                          	 
      	 
      
	
                            Address:

                          	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      


                  

                

              

            

          

        

      

    

     

    Participant
has been granted an Option to purchase Common Stock of the Company, subject to
the terms and conditions of the Plan and this Agreement, as
follows:

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          	
                                  Grant
      Number

                                	 
      	 
      
	
                                  Address:

                                	 
      	 
      
	
                                  Date
      of Grant

                                	 
      	 
      
	
                                  Vesting
      Commencement Date

                                	 
      	 
      
	
                                  Number
      of Shares Granted

                                	 
      	 
      
	
                                  Exercise
      Price per Share

                                	 
      	
                                  $

                                
	
                                  Total
      Exercise Price

                                	 
      	
                                  $

                                
	
                                  Type
      of Option

                                	 
      	
                                   ____
      Incentive Stock Option

                                
	 
      	 
      	
                                   ____
      Nonstatutory Stock Option

                                
	
                                  Term/Expiration
      Date

                                	 
      	 
      


                        

                      

                    

                  

                

              

            

          

        

      

    

                                                           

     

    Vesting
Schedule:

     

    Subject
to accelerated vesting as set forth below or in the Plan, this Option will be
exercisable, in whole or in part, according to the following vesting
schedule:

     

    [Twenty-five
percent (25%) of the Shares subject to the Option will vest on the first
anniversary of the Vesting Commencement Date, and 1/48th of the
Shares initially subject to the Option will vest each month thereafter, so as to
be 100% vested on the fourth anniversary of the Vesting Commencement Date, so
long as Participant remains a Service Provider through each such vesting
date.]

     

     

    Termination
Period:

     

    This
Option will be exercisable for three (3) months after Participant ceases to be a
Service Provider, unless such termination is due to Participant’s death or
Disability, in which case this Option will be exercisable for twelve (12) months
after Participant ceases to be a Service Provider.  Notwithstanding
the foregoing sentence, in no event may this Option be exercised after the
Term/Expiration Date as provided above and may be subject to earlier termination
as provided in Section 20(c) of the Plan.

     

    By
Participant’s signature and the signature of the Company’s representative below,
Participant and the Company agree that this Option is granted under and governed
by the terms and conditions of the Plan and this
Agreement.  Participant has reviewed the Plan and this Agreement in
their entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Agreement and fully understands all provisions of the Plan and
Agreement.  Participant hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Agreement.  Participant further
agrees to notify the Company upon any change in the residence address indicated
below.

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          	
                                  Submitted
      by:

                                	 
      	 
      	
                                   Accepted
      by:

                                	 
      
	
                                   PURCHASER

                                	 
      	 
      	
                                   BELL
      MICROPRODUCTS INC.

                                	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                  Signature

                                	 
      	 
      	
                                  By 

                                	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                  Print
      Name

                                	 
      	 
      	
                                  Title 

                                	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                  Date

                                	 
      	 
      	
                                  Date

                                	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                   Address:

                                	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    


    EXHIBIT
A

     

    (a)TERMS
AND CONDITIONS OF STOCK OPTION GRANT

     

    1. Grant.  The
Company hereby grants to the Participant named in the Notice of Grant (the
“Participant”) an option (the “Option”) to purchase the number of Shares, as set
forth in the Notice of Grant, at the exercise price per Share set forth in the
Notice of Grant (the “Exercise Price”), subject to the terms and conditions in
this Agreement and the Plan, which is incorporated herein by
reference.  Subject to Section 23(c) of the Plan, in the event of a
conflict between the terms and conditions of the Plan and the terms and
conditions of this Agreement, the terms and conditions of the Plan will
prevail.

     

    If
designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this
Option is intended to qualify as an Incentive Stock Option as defined in Section
422 of the Code.  However, if this Option is intended to be an
Incentive Stock Option, to the extent that it exceeds the $100,000 rule of Code
Section 422(d) it will be treated as a Nonstatutory Stock Option
(“NSO”).  Further, if for any reason this Option (or portion thereof)
will not qualify as an ISO, then, to the extent of such nonqualification, such
Option (or portion thereof) shall be regarded as a NSO granted under the
Plan.  In no event will the Administrator, the Company or any Parent
or Subsidiary or any of their respective employees or directors have any
liability to Participant (or any other person) due to the failure of the Option
to qualify for any reason as an ISO.

     

    2. Vesting
Schedule.  Except as provided in Section 3, the Option awarded
by this Agreement will vest in accordance with the vesting provisions set forth
in the Notice of Grant.  Shares scheduled to vest on a certain date or
upon the occurrence of a certain condition will not vest in Participant in
accordance with any of the provisions of this Agreement, unless Participant will
have been continuously a Service Provider from the Date of Grant until the date
such vesting occurs.

     

    3. Administrator
Discretion.  The Administrator, in its discretion, may
accelerate the vesting of the balance, or some lesser portion of the balance, of
the unvested Option at any time, subject to the terms of the Plan.  If
so accelerated, such Option will be considered as having vested as of the date
specified by the Administrator.

     

    4. Exercise of
Option.  This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Agreement.

     

    This
Option is exercisable by delivery of an exercise notice, in the form attached as
Exhibit B (the
“Exercise Notice”) or in a manner and pursuant to such procedures as the
Administrator may determine, which will state the election to exercise the
Option, the number of Shares in respect of which the Option is being exercised
(the “Exercised Shares”), and such other representations and agreements as may
be required by the Company pursuant to the provisions of the
Plan.  The Exercise Notice will be completed by Participant and
delivered to the Company.  The Exercise Notice will be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares together with
any applicable tax withholding.  This Option will be deemed to be
exercised upon receipt by the Company of such fully executed Exercise Notice
accompanied by the aggregate Exercise Price.

     

    5. Method of
Payment.  Payment of the aggregate Exercise Price will be by
any of the following, or a combination thereof, at the election of
Participant:

     

    (a) cash;

     

    (b) check;

     

    (c) consideration
received by the Company under a formal cashless exercise program adopted by the
Company in connection with the Plan; or

     

    (d) surrender
of other Shares which have a Fair Market Value on the date of surrender equal to
the aggregate Exercise Price of the Exercised Shares.

     

    6. Tax
Obligations.

     

    (a) Withholding of
Taxes.  Notwithstanding any contrary provision of this
Agreement, no certificate representing the Shares will be issued to Participant,
unless and until satisfactory arrangements (as determined by the Administrator)
will have been made by Participant with respect to the payment of income,
employment and other taxes which the Company determines must be withheld with
respect to such Shares.  To the extent determined appropriate by the
Company in its discretion, it shall have the right (but not the obligation) to
satisfy any tax withholding obligations by reducing the number of Shares
otherwise deliverable to Participant.  If Participant fails to make
satisfactory arrangements for the payment of any required tax withholding
obligations hereunder at the time of the Option exercise, Participant
acknowledges and agrees that the Company may refuse to honor the exercise and
refuse to deliver the Shares if such withholding amounts are not delivered at
the time of exercise.

     

    (b) Notice of Disqualifying
Disposition of ISO Shares.  If the Option granted to
Participant herein is an ISO, and if Participant sells or otherwise disposes of
any of the Shares acquired pursuant to the ISO on or before the later of (i) the
date two (2) years after the Grant Date, or (ii) the date one (1) year after the
date of exercise, Participant will immediately notify the Company in writing of
such disposition.  Participant agrees that Participant may be subject
to income tax withholding by the Company on the compensation income recognized
by Participant.

     

    (c) Code Section
409A.  Under Code Section 409A, an Option that is granted with
a per Share exercise price that is determined by the Internal Revenue Service
(the “IRS”) to be less than the Fair Market Value of a Share on the date of
grant (a “Discount Option”) may be considered “deferred
compensation.”  A Discount Option may result in (i) income recognition
by Participant prior to the exercise of the option, (ii) an additional twenty
percent (20%) federal income tax, and (iii) potential penalty and interest
charges.  The Discount Option may also result in additional state
income, penalty and interest tax to the Participant.  Participant
acknowledges that the Company cannot and has not guaranteed that the IRS will
agree that the per Share exercise price of this Option equals or exceeds the
Fair Market Value of a Share on the Date of Grant in a later
examination.  Participant agrees that if the IRS determines that the
Option was granted with a per Share exercise price that was less than the Fair
Market Value of a Share on the date of grant, Participant will be solely
responsible for Participant’s costs related to such a
determination.

     

    7. Rights as
Shareholder.  Neither Participant nor any person claiming under
or through Participant will have any of the rights or privileges of a
shareholder of the Company in respect of any Shares deliverable hereunder unless
and until certificates representing such Shares will have been issued, recorded
on the records of the Company or its transfer agents or registrars, and
delivered to Participant.  After such issuance, recordation and
delivery, Participant will have all the rights of a shareholder of the Company
with respect to voting such Shares and receipt of dividends and distributions on
such Shares.

     

    8. No Guarantee of Continued
Service.  PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING
OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING
AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY
EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING HIRED,
BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER.  PARTICIPANT
FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT
CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE
PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT
INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR
THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE
PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.

     

    9. Address for
Notices.  Any notice to be given to the Company under the terms
of this Agreement will be addressed to the Company at Bell Microproducts Inc.,
1941 Ringwood Ave, San Jose, CA 95131, or at such other address as the Company
may hereafter designate in writing.

     

    10. Grant is Not
Transferable.  This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution and may be
exercised during the lifetime of Participant only by Participant.

     

    11. Binding
Agreement.  Subject to the limitation on the transferability of
this grant contained herein, this Agreement will be binding upon and inure to
the benefit of the heirs, legatees, legal representatives, successors and
assigns of the parties hereto.

     

    12. Additional Conditions to
Issuance of Stock.  If at any time the Company will determine,
in its discretion, that the listing, registration or qualification of the Shares
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental regulatory authority is necessary or desirable
as a condition to the issuance of Shares to Participant (or his or her estate),
such issuance will not occur unless and until such listing, registration,
qualification, consent or approval will have been effected or obtained free of
any conditions not acceptable to the Company.  The Company will make
all reasonable efforts to meet the requirements of any such state or federal law
or securities exchange and to obtain any such consent or approval of any such
governmental authority.  Assuming such compliance, for income tax
purposes the Exercised Shares will be considered transferred to Participant on
the date the Option is exercised with respect to such Exercised
Shares.

     

    13. Plan
Governs.  This Agreement is subject to all terms and provisions
of the Plan.  In the event of a conflict between one or more
provisions of this Agreement and one or more provisions of the Plan, the
provisions of the Plan will govern.  Capitalized terms used and not
defined in this Agreement will have the meaning set forth in the
Plan.

     

    14. Administrator
Authority.  The Administrator will have the power to interpret
the Plan and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules (including, but not limited to, the
determination of whether or not any Shares subject to the Option have
vested).  All actions taken and all interpretations and determinations
made by the Administrator in good faith will be final and binding upon
Participant, the Company and all other interested persons.  No member
of the Administrator will be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or this
Agreement.

     

    15. Electronic
Delivery.  The Company may, in its sole discretion, decide to
deliver any documents related to Options awarded under the Plan or future
Options that may be awarded under the Plan by electronic means or request
Participant’s consent to participate in the Plan by electronic
means.  Participant hereby consents to receive such documents by
electronic delivery and agrees to participate in the Plan through any on-line or
electronic system established and maintained by the Company or another third
party designated by the Company.

     

    16. Captions.  Captions
provided herein are for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.

     

    17. Agreement
Severable.  In the event that any provision in this Agreement
will be held invalid or unenforceable, such provision will be severable from,
and such invalidity or unenforceability will not be construed to have any effect
on, the remaining provisions of this Agreement.

     

    18. Modifications to the
Agreement.  This Agreement constitutes the entire understanding
of the parties on the subjects covered.  Participant expressly
warrants that he or she is not accepting this Agreement in reliance on any
promises, representations, or inducements other than those contained
herein.  Modifications to this Agreement or the Plan can be made only
in an express written contract executed by a duly authorized officer of the
Company.

     

    19. Amendment, Suspension or
Termination of the Plan.  By accepting this Award, Participant
expressly warrants that he or she has received an Option under the Plan, and has
received, read and understood a description of the Plan.  Participant
understands that the Plan is discretionary in nature and may be amended,
suspended or terminated by the Company at any time.

     

    20. Governing
Law.  This Agreement shall be governed by the laws of the State
of California, without giving effect to the conflict of law principles
thereof.  For purposes of litigating any dispute that arises under
this Option or this Agreement, the parties hereby submit to and consent to the
jurisdiction of the State of California, and agree that such litigation shall be
conducted in the courts of Santa Clara County, California, or the federal courts
for the United States for the Northern District of California, and no other
courts, where this Option is made and/or to be performed.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
B

     

    BELL
MICROPRODUCTS INC.

     

    2009
EQUITY INCENTIVE PLAN

     

    EXERCISE
NOTICE

     

    Bell
Microproducts Inc.

    1941
Ringwood Avenue

    San Jose,
CA 95131

    


    Attention:  Stock
Option Administration

    


     

    1. Exercise of
Option.  Effective as of today, ________________, _____, the
undersigned (“Purchaser”) hereby elects to purchase ______________ shares (the
“Shares”) of the Common Stock of Bell Microproducts Inc. (the “Company”) under
and pursuant to the 2009 Equity Incentive Plan (the “Plan”) and the Stock Option
Agreement dated ________ (the “Agreement”).  The purchase price for
the Shares will be $_____________, as required by the Agreement.

     

    2. Delivery of
Payment.  Purchaser herewith delivers to the Company the full
purchase price of the Shares and any required tax withholding to be paid in
connection with the exercise of the Option.

     

    3. Representations of
Purchaser.  Purchaser acknowledges that Purchaser has received,
read and understood the Plan and the Agreement and agrees to abide by and be
bound by their terms and conditions.

     

    4. Rights as
Shareholder.  Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the Shares, no right to vote or receive dividends or
any other rights as a shareholder will exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option.  The Shares so acquired
will be issued to Participant as soon as practicable after exercise of the
Option.  No adjustment will be made for a dividend or other right for
which the record date is prior to the date of issuance, except as provided in
Section 20 of the Plan.

     

    5. Tax
Consultation.  Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser’s purchase or disposition of
the Shares.  Purchaser represents that Purchaser has consulted with
any tax consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.

     

    6. Entire Agreement; Governing
Law.  The Plan and Agreement are incorporated herein by
reference.  This Exercise Notice, the Plan and the Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser’s interest except by
means of a writing signed by the Company and Purchaser.  This
agreement is governed by the internal substantive laws, but not the choice of
law rules, of California.

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      	
                                              Submitted
      by:

                                            	 
      	 
      	
                                               Accepted
      by:

                                            	 
      
	
                                               PURCHASER

                                            	 
      	 
      	
                                               BELL
      MICROPRODUCTS INC.

                                            	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                              Signature

                                            	 
      	 
      	
                                              By 

                                            	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                              Date

                                            	 
      	 
      	
                                              Its 

                                            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                                                Date
      received

                                            	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                               Address: