Exhibit 10.7
Officers/Non-ISO
7/25/97
EMS TECHNOLOGIES, INC.
1997 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, entered into as of the th day of [ ], 1997
(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 "Employee").
W I T N E 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. 1997
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 persons
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 the 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 [ ]
The Option shall expire and is not exercisable after 5:00 p.m., Atlanta
time, on [ ]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 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 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 [ ] and [ ] dollars ($ ).
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 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 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 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 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 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 two preceding
paragraphs, 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 or any of its 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 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) this 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 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 or her 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 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 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. Competitive Activities. This 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 this Option
shall thereupon be forfeited and terminated, subject to a determination to the
contrary by the Committee.
12. Binding Agreement. This Agreement shall be binding upon the parties
hereto and their representatives, successors and assigns.
IN WITNESS WHEREOF, the Compensation Committee of the Board of Directors of
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 Employee has executed this
Agreement under his seal, all as of the day and year first above written.
EMS TECHNOLOGIES, INC.
[CORPORATE SEAL]
ATTEST: By:
Secretary Chief Executive Officer
Employee
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 [ ] 199 [ ]. 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 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 [ ], [ ].
EMPLOYEE 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 Certificates(s) 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
