EXHIBIT 10.16
CONFIDENTIAL MEMORANDUM
AND
2000 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
TO:
FROM: XXXXXX X. XXXXXX, CEO
SUBJECT: STOCK OPTION AWARD DATE:
I am pleased that you have been selected by the Stock Incentive Plan Committee
of the Board of Directors to receive an option for shares of the common stock of
EMS Technologies, Inc. When signed by you and validated by the initials of the
Company's Secretary, this Memorandum will be the Agreement evidencing your
option.
As was true in 2005, the options have a six-year expiration date, and vest at a
rate of 25% per year over a four-year period. This year, for the first time,
vesting at each of the four vesting dates is also subject to the performance
condition that your division (or the company as a whole in the case of corporate
personnel) achieves at least 80% of its target earnings for the calendar year
preceding each vesting date. The target earnings will be determined at the
beginning of each year as part of the annual plan as approved and recorded for
compensation purposes by the Compensation Committee of the Board of Directors.
In the event you change divisions during any year, the performance condition
will be based on the division with which you are employed for the greatest
amount of time during the year.
The new performance condition reflects an important trend in compensation
philosophy, and growing investor insistence that management rewards be based on
the delivery of performance that enhances shareholder value.
Your option has the following terms:
Grant Date: Total Shares:
Expiration Date: Exercise Price:
1st Date for Exercise: Number of Shares: *
2nd Date for Exercise: Number of Shares: *
3rd Date for Exercise: Number of Shares: *
4th Date for Exercise: Number of Shares: *
------------
*Subject to achievement of performance conditions
Your option is also subject to the other terms specified in the Terms of Stock
Option, Form 2/16/00. For Atlanta and Ottawa employees, this document is
available on our intranet, MyEMS\EMSTOnline. To view this document, start from
the Home page of MyEMS, select the tab Document Library at the top of the page.
Scroll down and select the folder on the left called Documents. Now select Human
Resources and then Stock Plans. At this site, you will find the 2000 Plan, and
the Prospectus that describes our options and outlines information, such as tax
consequences, related to exercising your option.
This option grant was recommended by EMS management based on your current and
potential contributions to our Company's overall success. In addition to being
performance based, it is a long-term incentive, and for this reason requires
continued employment to become exercisable, and to remain exercisable for its
full six-year life. It is our hope and goal that, as a result of our combined
efforts over these next six years, and the achievement of our performance
objectives, EMS stock will become worth substantially more than the exercise
price. In this way, the option program allows top performers to share in the
Company's long-term growth and success.
_______, thank you for your contributions to EMS Technologies. Your talents and
hard work are important reasons for the Company's exciting future. I look
forward to continuing our work together to achieve our potential for success.
***********************************************
I acknowledge and accept this Stock Option Agreement,
including the terms and conditions set forth in Terms
of Stock Option, Form 2/16/00. Validated
---------
___________________________ _________________, 2006 Secretary
Signature
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EXHIBIT 10.16b
EMS TECHNOLOGIES, INC.
2000 STOCK INCENTIVE PLAN
TERMS OF STOCK OPTION
FORM 02/16/00
THIS TERMS OF STOCK OPTION sets forth certain terms of, and is included as
part of, each Stock Option Agreement (the "Agreement") that specifically refers
to this Form and that has been issued from time to time by EMS TECHNOLOGIES,
INC., a Georgia corporation (hereinafter referred to as the "Corporation").
W I T N E S S E T H
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 "EMS Technologies, Inc. 2000
Stock Incentive Plan" (hereinafter referred to as the "Plan");
WHEREAS, the Stock Incentive Plan Committee (the "Committee") has
determined that each recipient of an Agreement (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, as an employment incentive and to encourage stock ownership, the
Committee has granted the Employee an option (the "Option") to purchase the
number of shares of the Corporation's common stock set forth in the Agreement.
NOW, THEREFORE, the following terms are included and incorporated in the
Agreement:
1. Incorporation of Plan. The Option has been granted pursuant to the
provisions of the Plan, which has been provided or made available to the
Employee, and the terms of and definitions set forth in the Plan are
incorporated by reference into the Agreement and made a part thereof.
2. Grant of Option. Subject to the terms and conditions stated herein, the
Agreement, when signed by the Employee and validated by the Corporation's
Secretary, evidences the grant by the Corporation to the Employee, not in lieu
of salary or other compensation, of the right and option, which is not an ISO,
to purchase all or any part of an aggregate of the Number of Shares of the
Corporation's $.10 par value common stock (the "Common Stock"), specified in the
Agreement, beginning on the First Date for Exercise specified in the Agreement.
The Option shall expire and is not exercisable after 5:00 p.m., Atlanta
time, on the Expiration Date specified in the Agreement (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
second preceding paragraph, but subject to the provisions of the preceding
paragraph with respect to expiration of the Option, the 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
Stock/Term of Stock 2000
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 Employee's right under this paragraph to exercise the
Option shall terminate, the Employee and the Corporation shall rescind any
exercise of the Option pursuant to this paragraph, and the 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 the Option shall be the Exercise Price specified in the
Agreement.
4. Exercise Terms. Beginning on the date or dates specified in, and prior
to the expiration of the Option as provided in, Section 2, the Employee may
exercise the 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 the Option;
provided that the Employee must exercise the Option for at least the lesser of
100 shares or the unexercised portion of the Option. In the event the Option is
not exercised with respect to all or any part of the shares subject to the
Option prior to its expiration, the shares with respect to which the Option was
not exercised shall no longer be subject to this Option.
5. Option Non-Transferable. The Option and all rights thereunder 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 the 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), the 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 the Option contrary to the provisions
hereof shall be null and void and without legal effect.
6. Notice of Exercise of Option. The Option may be exercised by the
Employee, or by his or her 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 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 Annex A) shares of
Common Stock, owned by him or her 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 the 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 under the Option. 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 Employee or to such
administrator, executor, personal representative or qualified transferee, as the
case
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may be, stock certificates for the number of shares specified in such notice
registered in the name of the person exercising the Option.
7. Adjustment in Option. If, between the Date of Grant specified in the
Agreement and prior to the complete exercise of the 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 purchase price of the
shares remaining subject to the 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 or any of its
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 First Date for Exercise set forth in the Agreement, then the 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 First Date for Exercise set forth
in the Agreement, which Termination is either (i) voluntary on the part of the
Employee and with the written consent of the Employer, or (ii) involuntary and
without cause, the Employee may exercise the Option at any time within a period
ending at the earlier of the Expiration Date or 5:00 p.m., Atlanta time, on the
day of the expiration of three months from the date of such Termination, to the
extent of the number of shares that were purchasable thereunder at the date of
Termination.
In the event of a Termination after the First Date for Exercise set forth
in the Agreement, which Termination is 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 the 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 thereunder 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 two preceding
paragraphs, the Option, to the extent not theretofore exercised, shall forthwith
terminate and shall not thereafter be or become exercisable.
The Option does not confer upon the Employee any right with respect to
continuance of employment by the Corporation or any of its Subsidiaries. The
Option shall not be affected by any change of employment, so long as the
Employee continues to be an employee of the Corporation or any such Subsidiary.
In the event the Employer is not the Corporation, and such Employer ceases to be
the Corporation'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) the Option shall remain in effect as if such sale or
other change of status had not occurred, for so long as Employee shall remain an
employee of the corporation that previously was such 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 change of status, the Corporation shall redeem the Option at a
price equal to the number of shares then subject thereto (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 or her personal representative) may
exercise the 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
thereunder at the date of Termination.
For the purposes of the foregoing paragraph 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
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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 or any of its Subsidiaries, or during a period in which the
Employee may exercise the Option notwithstanding an earlier Termination, the
persons described in Section 6 may exercise the 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 or
one of its Subsidiaries at the time of the Employee's death, the Option may be
so exercised to the extent of the full number of shares subject thereto. If a
Termination occurred prior to Employee's death, the Option may be so exercised
only to the extent of the number of shares that were purchasable hereunder at
the date of Termination.
11. Competitive Activities. The Option is subject to Section 9.2 of the
Plan, which provides that if the Employee 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 Employee while an employee of the
Corporation or any such Subsidiary, then the Employee's rights under the Option
shall thereupon be forfeited and terminated, subject to a determination to the
contrary by the Committee.
12. Binding Agreement. The Agreement, including the terms and condition
set forth in this Terms of Stock Option, shall be binding upon the parties
hereto and their representatives, successors and assigns.
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ANNEX A
EMS TECHNOLOGIES, INC.
2000 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
"Employee") and the Corporation dated ______________, 200___. Accompanying this
Notice is (1) a certified or a 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 Terms of
Stock Option referenced in the Agreement, executed with respect to the number of
such shares having an aggregate Fair Market Value (as defined in the EMS
Technologies, Inc. 2000 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 the Agreement multiplied by the number of
shares being hereby purchased (in each instance subject to appropriate
adjustment pursuant to Section 7 of such Terms of Stock Option).
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 in the
discretion of the Corporation 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 ______ , 20______.
EMPLOYEE OR HIS OR HER ADMINISTRATOR,
EXECUTOR, PERSONAL REPRESENTATIVE OR
QUALIFIED TRANSFEREE
____________________________________
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ANNEX B
EMS TECHNOLOGIES, INC.
2000 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 have held the Shares that I am tendering (i) for at least
one year after acquiring such Shares through the exercise of an Incentive Stock
Option, and (ii) for at least six months after acquiring such Shares in any
other manner.
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 Certificate(s) No. Number of Number of Shares Subject
or Brokerage Account Shares Represented to this 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
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