EXHIBIT 10.9
CONFIDENTIAL MEMORANDUM
AND
1997 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
TO:
FROM: XXXXXX X. XXXXXX, CEO
DATE: <>
SUBJECT: STOCK OPTION AWARD
I am pleased that you have been selected by the Compensation 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.
The vesting schedule is ______________________ This means that for options
granted this year, you have a significant amount of time to seek an optimal
price for exercising your options. Your option has the following terms:
Grant Date: Total Shares:
Expiration Date: Exercise Price:
First Date for Exercise: <> Number of shares:
<> Number of shares:
Number of shares:
Your option is also subject to the other terms specified in the Terms of Officer
Stock Option, Form 1/25/01. This document is being or has been provided to you
by e-mail. The Plan and the Prospectus for the 1997 plan that describes our
options and outlines information, such as tax consequences, related to
exercising your option, are each available by going to our intranet, EMSTonline.
Select the Document Library tab, then select the folder named Documents. Click
on Human Resources and then on Stock Plans.
This option grant was recommended by the CEO based on your current and potential
contributions to our Company's overall success. It is a long-term incentive, and
for this reason requires continued employment to become exercisable, and to
remain exercisable for its full <>-year life. It is our hope and
goal that, as a result of our combined efforts over these <> years,
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 valued
contributions will ensure the continuous progress of EMS, and these stock
options allow you to share in the Company's success. I look forward to
continuing our work together to achieve our mutual success.
***********************************************
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I acknowledge and accept this Stock Option Agreement including the terms and
conditions set forth in Terms of Officer Stock Option, Form 1/25/01.
Validated
----------
_____________________ ________________, 200_ Secretary
Signature
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EMS TECHNOLOGIES, INC.
1997 STOCK INCENTIVE PLAN
TERMS OF OFFICER STOCK OPTION
FORM 1/25/01
THIS TERMS OF OFFICER 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") to certain of its employees (herein, "Employee") who are also
officers of the Corporation.
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 "EMS Technologies, Inc. 1997
Stock Incentive Plan" (hereinafter referred to as the "Plan");
WHEREAS, the Compensation Committee (the "Committee") is authorized to
grant to persons who are Officers (as defined in the Plan) options enabling them
to purchase shares of the Corporation's common stock as allocated 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, 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 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
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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 may be, stock certificates for the number of shares specified in such
notice registered in the name of the person exercising the Option.
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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 (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 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 preceding
paragraph, 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
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
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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 Employee and
the Corporation, and their representatives, successors and assigns.
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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 "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
Officer 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. 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 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 Officer 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.
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 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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