EXHIBIT 10.12
ELECTROMAGNETIC SCIENCES, INC.
1992 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, entered into as of the 24th day of April,
1992 (the "Date of Grant"), by and between ELECTROMAGNETIC SCIENCES, INC., a
Georgia corporation (hereinafter referred to as the "Corporation"), and
[__________________]_ (hereinafter referred to as the "Employee").
WITNESSETH
WHEREAS, the Board of Directors (the "Board") of the Corporation has
adopted a stock incentive plan for the Corporation's and its subsidiary
corporations' officers and employees, known as the "Electromagnetic Sciences,
Inc. 1992 Stock Incentive Plan" (hereinafter referred to as the "Plan");
WHEREAS, the Plan and the Board have authorized the Compensation
Committee of the Board (hereinafter referred to as the "Committee") to grant to
employees who are Officers (as defined in the Plan) stock options enabling them
to purchase the number of shares of the Corporation's common stock allocated to
them by the Committee;
WHEREAS, the Committee has determined that the Employee is eligible to
participate in the Plan, and that it is in the best interests of the Corporation
that the Employee, through such participation, be provided with additional
incentive to achieve the Company's objectives; and
WHEREAS, the Committee has accordingly granted the Employee an option
to purchase the number of shares of the Corporation's common stock as
hereinafter set forth, and the Corporation and the Employee desire to enter into
a written agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock
ownership and in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
1. Incorporation of Plan. This option is granted pursuant to the
provisions of the Plan, and the terms of and definitions set forth in the Plan
are incorporated by reference into this Stock Option Agreement and made a part
hereof. A copy of the Plan has been delivered to, and receipt is hereby
acknowledged by, the Employee.
2. Grant of Option. Subject to tile terms, restrictions,
limitations and conditions stated herein, the Corporation hereby evidences its
grant to the Employee, not in lieu of salary or other compensation, of
the right and option (hereinafter referred to as the "Option"), which is not an
ISO, to purchase all or any part of an aggregate of [________________________]
( ) shares of the Corporation's $.10 par value common stock (the "Common
Stock"), beginning on April 24, 1995.
The Option shall expire and is not exercisable after 5:00 p.m., Atlanta time, on
April 24, 1998 (the "Expiration Date"), or such other date as determined
pursuant to Section 8, 9 or 10.
Notwithstanding the beginning date or dates for exercise set forth in the
preceding paragraph, but subject to the provisions of such preceding
paragraph with respect to expiration of this Option, this Option may be
exercised as to all or any portion of the full number of shares subject
thereto if:
(a) a tender offer or exchange offer has been made for shares of the Common\
Stock, other than one made by the Corporation, provided that the
corporation, person or other entity making such offer purchases or
otherwise acquires shares of Common Stock pursuant to such offer; or (b)
any person or group (as such terms are defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Act")), becomes the
holder of 50% or more of the outstanding shares of Common Stock. If either
of the events specified in this paragraph has occurred, the Option shall be
fully exercisable: (x) in the event of (a) above, during the 30-day period
commencing on the date of expiration of the tender offer or exchange offer;
or (y) in the event of (b) above, during the 30-day period commencing on
the date upon which the Corporation is provided a copy of a Schedule 13D or
amendment thereto, filed pursuant to Section 13(d) of the Act and the rules
and regulations promulgated thereunder, indicating that any person or group
has become the holder of 50% or more of the outstanding shares of Common
Stock. In the case of (a) above, if the corporation, person or other entity
making the offer does not purchase or otherwise acquire shares of Common
Stock pursuant to such offer, then the Employee's right under this
paragraph to exercise this Option shall terminate, the Employee and the
Corporation shall rescind any exercise of this Option pursuant to this
paragraph, and this Option shall be reinstated as if such exercise had not
occurred.
3. Purchase Price. The price per share to be paid by the Employee for the
shares subject to this Option shall be Eight and 50/100 dollars ($8.50).
4. Exercise Terms. Beginning on the date or dates specified in, and prior
to the expiration of this Option as provided in, Section 2, the
Employee may exercise this Option as to all such number of shares, or
as to any part thereof, at any time and from time to time during the
remaining term of this Option; provided that the Employee must exercise
this Option for at least the lesser of 100 shares or the unexercised
portion of the Option. In the event this Option is not exercised with
respect to all or any part of the shares subject to this Option prior
to its expiration, the shares with respect to which this Option was not
exercised shall no longer be subject to this Option.
5. Option Non-Transferable. This Option and all rights hereunder are
neither assignable nor transferable by the Employee otherwise than by
will or under the laws of descent and distribution, or pursuant to a
Qualified Domestic Relations Order, and during the Employee's lifetime
this Option is exercisable only by him or her (or by his or her
guardian or legal representative, should one be appointed, or qualified
transferee). More particularly (but without limiting the generality of
the foregoing), this Option may not be assigned, transferred (except as
aforesaid), pledged or hypothecated in any way (whether by operation of
law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of this Option contrary to the
provisions hereof shall be null and void and without legal effect.
6. Notice of Exercise of Option. This Option may be exercised by the
Employee, or by his administrator, executor, personal representative or
qualified transferee, by a written notice (in substantially the form of
the "Notice of Exercise" attached hereto as Exhibit A) signed by the
Employee or by such administrator, executor, personal representative or
qualified transferee, and delivered or mailed to the Corporation at its
principal office in Norcross, Georgia, to the attention of the
President, Treasurer or such other officer as the Corporation may
designate. Any such notice shall (a) specify the number of shares of
Common Stock which the Employee or such administrator, executor,
personal representative or qualified transferee, as the case may be,
then elects to purchase hereunder, and (b) be accompanied by (i) a
certified or cashier's check payable to the Corporation, or personal
check acceptable to the Corporation, in payment of the total price
applicable to such shares as provided herein, or (ii) (subject to any
restrictions referred to in Exhibit A) shares of Common Stock, owned by
him or her and duly endorsed or accompanied by stock transfer powers,
having a Fair Market Value equal to the total purchase price applicable
to such shares purchased hereunder, or (iii) such a check, and the
number of such shares whose fair market value when added to the amount
of the check equals the total purchase price applicable to such shares
purchased hereunder. Such notice shall also be accompanied by the
Employee's check or shares of Common Stock in payment of applicable
withholding and employment taxes, or Employee shall authorize the
withholding of shares of Common Stock otherwise issuable under this
Option in payment of such taxes, all as set forth on Exhibit A and
subject to any restrictions referred to therein. Upon receipt of any
such notice and accompanying payment, and subject to the terms hereof,
the Corporation agrees to cause to be issued to the Employee or to such
administrator, executor, personal representative or qualified
transferee, as the case may be, stock certificates for the number of
shares specified in such notice registered in the name of the person
exercising this Option.
7. Adjustment in Option. If, between the Date of Grant of this Option and
prior to the complete exercise thereof, there shall be a change in the
outstanding Common Stock by reason of one or more stock splits, stock
dividends, combinations or exchanges of shares, recapitalizations or
similar capital adjustments, then the number, kind
and option price of the shares remaining subject to this Option shall
be equitably adjusted in accordance with the terms of the Plan, so that
the proportionate interest in the Corporation represented by the shares
then subject to the Option shall be the same as before the occurrence
of such event.
8. Termination of Employment. Except as set forth in Section 10, if the
Employee ceases to be employed as an employee of the Corporation, any
Parent or any of its or its Patent's Subsidiaries (such event being
hereinafter referred to as a "Termination" and such corporation that
employs the Employee from time to time as the "Employer"), before the
date for exercise of this Option set forth in Section 2, then this
Option shall forthwith terminate on the date of Termination and shall
not thereafter be or become exercisable.
In the event of a Termination after the date for exercise set forth in Section
2, which Termination is either (i) voluntary on the part of the Employee
and with the written consent of the Employer, (ii) involuntary and without
cause, or (iii) the result of retirement at the normal retirement date, as
prescribed from time to time by the Employer, or at an earlier date
expressly approved by the Employer as an early retirement date for the
Employee, the Employee may exercise this Option at any time within a period
ending at the earlier of the Expiration Date or 5:00 p.m., Atlanta time, on
the third anniversary of such Termination, to the extent of the number of
shares that were purchasable hereunder at the date of Termination.
In the event of a Termination that is either (i) for cause or (ii)
voluntary on the part of the Employee and not described in the preceding
paragraph, this Option, to the extent not theretofore exercised, shall
forthwith terminate and shall not thereafter be or become exercisable.
This Option does not confer upon the Employee any right with respect to
continuance of employment by the Corporation, any Parent or any of the
Corporation's or its Parent's Subsidiaries. This Option shall not be
affected by any change of employment so long as the Employee continues to
be an employee of the corporation, any Parent or any such Subsidiary. In
the event the Employer is not the Corporation, and such Employer ceases to
be the Corporation's Parent, or the Corporation's or its Parent's
Subsidiary, as a result of a sale of stock or assets or other change of
corporate status, then in the discretion of the Committee (but subject to
Section 5.2 of the Plan regarding certain transactions affecting the
Corporation) either: (i) this Option shall remain in effect as if such sale
of other change of status had not occurred, for so long as Employee shall
remain an employee of the corporation that previously was such Parent or
Subsidiary, or of any successor or subsequent Parent of such corporation,
or of any Subsidiary of either such corporation or any such Parent or
successor; or (ii) concurrent with such sale or other change of status, the
Corporation shall redeem this Option at a price equal to the number of
shares then subject hereto (whether or not then purchasable) multiplied by
the excess (if any) of the then Fair Market Value of each such share over
the purchase price
per share specified in Section 3 (as adjusted pursuant to Section 7).
9. Disabled Employee. In the event of a Termination because the Employee
becomes disabled, the Employee (or his personal representative) may
exercise this Option at any time within a period ending at the earlier of
the Expiration Date or 5:00 p.m., Atlanta time, on the first anniversary of
such Termination, to the extent of the number of shares that were
purchasable hereunder at the date of Termination.
For the purposes of this Agreement, the Employee shall be considered "disabled"
if he or she is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can
be expected to last for a continuous period of not less than twelve months.
10. Death of Employee. In the event of the Employee's death while employed
by the Corporation, any Parent or any of its Subsidiaries, or during a
period in which the Employee may exercise this Option notwithstanding
an earlier Termination, the persons described in Section 6 may exercise
this Option at any time within a period ending at the earlier of (i)
5:00 p.m., Atlanta time, on the third anniversary of the Employee's
death, or (ii) the Expiration Date, but in any event ending not earlier
than 5:00 p.m., Atlanta time, on the first anniversary of the
Employee's death. If the Employee was an employee of the Corporation,
any Parent or one of its Subsidiaries at the time of the Employee's
death, this Option may be so exercised to the extent of the full number
of shares covered by the Option. If a Termination occurred prior to
Employee's death, this Option may be so exercised only to the extent of
the number of shares that were purchasable hereunder at the date of
Termination.
11. Binding Agreement. This Agreement shall be binding upon the parties
hereto and their representatives, successors and assigns.
