EXHIBIT 10.12
Outside Directors
(Continuing) 4/30/99
EMS TECHNOLOGIES, INC.
1997 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, entered into as of the __th day of____, ____
(the 'Date of Grant'), by and between EMS TECHNOLOGIES, INC., a Georgia
corporation (hereinafter referred to as the 'Corporation'), and
_______________(hereinafter referred to as the 'Director').
WITNESSETH
WHEREAS, the Board of Directors (the 'Board') of the Corporation has
adopted a stock incentive plan for the directors, officers and employees of the
Corporation or its subsidiary corporation, which Plan is known as the 'EMS
Technologies, Inc. 1997 Stock Incentive Plan' (hereinafter referred to as the
'Plan');
WHEREAS, on the Date of Grant the Director was elected to serve as a
member of the Board for the forthcoming year; and
WHEREAS, the Plan provides for the automatic grant to the Director, in the
circumstances of such election, of a stock option to purchase shares of the
Corporation's common stock as hereinafter set forth, and the Corporation and the
Director desire to enter into a written agreement with respect to such option in
accordance with the Plan.
NOW, THEREFORE, as an 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 and definitions of the Plan, as it may be
amended from time to time, 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 Director.
2. Grant of Option. Subject to the terms, restrictions, limitations and
conditions stated herein, the Corporation hereby evidences its grant to the
Director 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 Three
Thousand
(3,000) shares of the Corporation's $.10 par value common stock (the 'Common
Stock'), beginning on __________________.
This Option shall expire and is not exercisable after 5:00 p.m., Atlanta
time, on ____________ (the 'Expiration Date').
Notwithstanding the beginning date for exercise set forth in the second
preceding paragraph, but subject to the provisions of the 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
period commencing on the date the tender offer or exchange offer is commenced
and ending on the date such offer expires and is not extended; 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
Director's right under this paragraph to exercise this Option shall terminate,
the Director 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 Director for the
shares subject to this Option shall be ________________ Dollars ($______).
4. Exercise Terms. Beginning on the date specified above, and prior to the
expiration of this Option as provided in Section 2 hereof, the Director 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 Director 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 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 Director otherwise than by will or
under the laws of descent and distribution, or pursuant to a Qualified Domestic
Relations Order, and during the Director's lifetime this Option is exercisable
only by him (or by his 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
Director, 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 Annex A) signed by the Director, 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 Director 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 Annex A) shares of
Common Stock, owned by him and duly endorsed or accompanied by stock transfer
powers, or in lieu thereof, the form of Attestation of Share Ownership attached
as Annex B executed with respect to such number of such shares, having a Fair
Market Value equal to the total purchase price applicable to the shares
purchased hereunder, or (iii) such a check, and the number of such shares (or
attestation with respect thereto) 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 such a check or
shares of Common Stock in payment of applicable withholding and employment
taxes, or the person exercising this Option shall authorize (by use of Annex B
or otherwise) the withholding of shares of Common Stock otherwise issuable under
this Option in payment of such taxes, all as set forth on Annex 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 Director 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 prior to the complete exercise of this Option,
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 as a Director. If the Director for any reason ceases to be
a member of the Board of Directors of the Corporation (such event being
hereinafter referred to as a 'Termination'), then:
(a) To the extent this Option shall have become exercisable on or
prior to the date of Termination, it shall remain exercisable
until the Expiration Date; and
(b) Any portion of this Option that had not become exercisable on
or prior to the date of Termination shall immediately
terminate and shall not thereafter become exercisable.
This Option does not confer upon the Director any right with respect to
continuance as a member of the Board of Directors of the Corporation.
9. Competitive Activities. This Option is subject to Section 9.2 of the
Plan, which provides that if the Director provides services to a competitor of
the Corporation or any of its Subsidiaries, whether as an employee, officer,
director, independent contractor, consultant, agent or otherwise, such services
being of a nature that can reasonably be expected to involve the skills and
experience used or developed by the Director while an employee or Director of
the Corporation or any such Subsidiary, then the Director's rights under this
Option shall thereupon be forfeited and terminated, subject to a determination
to the contrary by the Committee.
10. Binding Agreement. This Agreement shall be binding upon the parties
hereto and their representatives, successors and assigns.
IN WITNESS WHEREOF, the Corporation has caused this Stock Option Agreement
to be executed on behalf of the Corporation and the Corporation's seal to be
affixed hereto and attested by the Secretary of the Corporation, and the
Director has executed this Agreement under his seal, all as of the day and year
first above written.
EMS TECHNOLOGIES, INC.
[CORPORATE SEAL]
ATTEST By: ___________________________________
Chief Executive Officer
___________________________________
Secretary
DIRECTOR:
________________________________(SEAL)
ANNEX A
EMS TECHNOLOGIES, INC.
1997 STOCK INCENTIVE PLAN
Notice of Exercise
of Stock Option
The undersigned hereby notifies EMS Technologies, Inc. (the 'Corporation')
of his or her election to exercise an option to purchase ____________ shares of
the Corporation's common stock, $.10 par value (the 'Common Stock'), pursuant to
that Stock Option Agreement (the 'Agreement') between ________________________
(the 'Director') and the Corporation dated ____________________ 199__.
Accompanying this Notice is (1) a certified or cashier's check (or other check
acceptable to the Corporation) in the amount of $_______________ payable to the
Corporation and/or (2) (subject to such restrictions as may be determined to be
necessary or appropriate to avoid earnings charges or other adverse consequences
to the Corporation under applicable accounting or tax rules or regulations)
_______________ shares of the Common Stock presently owned by the undersigned
and duly
endorsed or accompanied by stock transfer powers, or in lieu thereof, the form
of Attestation of Share Ownership attached as Annex B to the Agreement, executed
with respect to the number of such shares, having an aggregate Fair Market Value
(as defined in the EMS Technologies, Inc. 1997 Stock Incentive Plan (the
'Plan')) as of the date hereof of $_______________, such amounts being equal, in
the aggregate, to the purchase price per share set forth in Section 3 of the
Agreement multiplied by the number of shares being hereby purchased (in each
instance subject to appropriate adjustment pursuant to Section 7 of the
Agreement).
Also accompanying this Notice is my check in the amount of
$_______________,in payment of federal and state income withholding and
employment taxes applicable to this exercise. The amount of such payment is
based on advice received from appropriate officials of the Corporation
responsible for the administration of its payroll and employment tax
obligations. Alternatively, or in addition, and subject to such restrictions as
may be determined to be necessary or appropriate to comply with Rule 16b-3 under
the Securities Exchange Act of 1934, or to avoid earnings charges or other
adverse consequences to the Corporation under applicable accounting or tax rules
or regulations, in full or partial payment of such taxes:
(1) I deliver herewith an additional _______________ shares of the
Common Stock (or the form of Attestation of Share Ownership
with respect thereto) presently owned by me, having an
aggregate Fair Market Value as of the date hereof of
$_______________; and/or
(2) I hereby authorize the Corporation to withhold, from the
shares of Common stock otherwise issuable to me pursuant to
this exercise, _______________ such shares having an aggregate
Fair Market Value at the date hereof of $ _______________.
The sum of (i) any such check plus (ii) the Fair Market Value at the date hereof
of any shares of Common Stock specified in the foregoing clauses (1) and (2) is
not less than the amount of federal and state withholding and employment taxes
applicable to this exercise, and is not greater than the total of all federal
and state income and employment taxes to be owed by me as a result of such
exercise.
IN WITNESS WHEREOF, the undersigned has set his or her hand and seal,
this day of , .
DIRECTOR OR HIS OR HER ADMINISTRATOR,
EXECUTOR, PERSONAL REPRESENTATIVE OR
QUALIFIED TRANSFEREE
_____________________________________________
ANNEX B
EMS TECHNOLOGIES, INC.
1997 Stock Incentive Plan
Attestation of Share Ownership
Pursuant to the Notice of Exercise submitted herewith, I have elected to
purchase shares of the common stock of EMS Technologies, Inc. (the
'Company'), pursuant to the Stock Option Agreement dated ____________ (the
'Option ), at an aggregate exercise price of $___________ (the 'Option Price').
I hereby attest to ownership of the shares specified below (the Shares') and
hereby tender the Shares in payment of (i) $__________ of the Option Price, and
(ii) $___________ of withholding and related taxes due upon exercise of the
Option, in each case based on their Fair Market Value on the date hereof (as
determined under the Plan) of $___________ per share).
I certify that I either (i) have held the Shares that I am tendering for
at least one year after acquiring such Shares through the exercises of an
Incentive Stock Option, or (ii) did not obtain such Shares through the exercise
of an ISO.
Although the Company has not required me to make actual delivery of
certificates evidencing the Shares, as a result of which I (and the co-owner, if
any of the Shares) will retain ownership of such Shares, I represent that I,
with the consent and agreement of the co-owner (if any) of the Shares, have full
power to deliver and convey such certificates to the Company, and therefore
could have caused the Company to become sole owner of such Shares. The co-owner
of the Shares, by signing this form, consents to these representations and the
exercise of the Option by this notice.
Common Stock Number of Number of Shares
Certificate(s) No. Shares Represented Subject to this
or Brokerage Account Attestation
You are hereby instructed to apply towards the Option Price: (check one)
[ ] The maximum number of whole shares necessary to pay the Option
Price and specified taxes, or, if fewer, the total number of
listed Shares, with any remaining amount to be paid by check
accompanying the Notice of Exercise.
[ ] of the listed Shares with the remaining amount to be paid by
check accompanying the Notice of Exercise.
In each case, the balance of the Shares for which the Option is being
exercised will be issued as specified in the Notice of Exercise.
Name
Date Signature
Co-Owner's Name (if any)
Date Co-Owner's Signature
