EMS TECHNOLOGIES, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, entered into as of the 7th day of
January, 2000 (the 'Date of Grant'), by and between EMS TECHNOLOGIES, INC.
a Georgia corporation (hereinafter referred to as the "Corporation"), and
Xxxxxx X. Xxxxxx (hereinafter referred to as the "Employee").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Board of Directors (the 'Board') of the Corporation has
requested that the Employee serve as President and Chief Operating Officer
of the Corporation, and in order to induce Employee to become an employee
and to accept such position has granted to Employee an option to purchase
the number of shares of the Corporation's common stock as hereinafter set
forth; and
WHEREAS, the Corporation and the Employee desire to enter into a
written agreement with respect to such option.
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. 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 Two Hundred Thousand (200,000)
shares of the Corporation's $.10 par value common stock (the 'Common
Stock'), beginning on July 1, 2000.
The Option shall expire and is not exercisable after 5:00 p.m.,
Atlanta time, on January 1, 2006 (the 'Expiration Date'), or such other
date as determined pursuant to Section 7, 8 or 9.
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.
2. Purchase Price. The price per share to be paid by the Employee
for the shares subject to this Option shall be Eleven and .875 dollars
($11.875).
3. Exercise Terms. Beginning on the date or dates specified in, and
prior to the expiration of this Option as provided in, Section 1, 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.
4. 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 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.
5. 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 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 (as defined in the EMS Technologies,
Inc. 1997 Stock Incentive Plan) 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.
6. 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 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.
In the event of the occurrence of any of the transactions identified
in Section 5.2 of the EMS Technologies, Inc. 1997 Stock Incentive Plan,
this Option shall be subject to the provisions of such Section 5.2, as if
issued under that Plan, except that powers specified in such Section 5.2 to
be exercised by the "Committee" shall be exercised as to this Option by the
Board.
7. 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 1, 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 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 the second paragraph of Section
6 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 2 (as adjusted pursuant to Section 6).
8. 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 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.
9. 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 5 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.
10. Competitive Activities. In the event that 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
Board.
11. Conditions to Issuing Common Stock. The Corporation shall not be
required to issue or deliver any Common Stock upon the full or partial
exercise of this Option prior to the completion of any registration or
other qualification of such shares that the Corporation shall determine to
be necessary or advisable under any federal or state law or under the
rulings or regulations of the Securities and Exchange Commission or any
other governmental regulatory body, or the Corporation's determination that
an exemption is available from such registration or qualification. Unless
such shares of Common Stock shall be the subject of an effective
registration statement under the Securities Act of 1933, as amended, stock
certificates issued and delivered upon exercise of this Option shall bear
such restrictive legends as the Corporation shall deem necessary or
advisable pursuant to applicable federal and state securities laws.
12. Binding Agreement. This Agreement shall be binding upon the
parties hereto and their representatives, successors and assigns.
IN WITNESS WHEREOF, the Board of Directors of the Corporation has
caused this Stock Option Agreement to be executed on behalf of the
Corporation and attested by the Secretary of the Corporation, and the
Employee has executed this Agreement, all as of the day and year first
above written.
EMS TECHNOLOGIES, INC.
ATTEST: By: ___________________________________
Chief Executive Officer
_____________________________
Secretary
__________________________________
Employee
ANNEX A
EMS TECHNOLOGIES, INC.
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 Xxxxxx X. Xxxxxx (the 'Employee') and the Corporation dated January
7, 2000. 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) as of the date hereof of $_______________, such amounts
being equal, in the aggregate, to the purchase price per share set forth in
Section 2 of the Agreement multiplied by the number of shares being hereby
purchased (in each instance subject to appropriate adjustment pursuant to
Section 6 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 equal to the statutory withholding and employment taxes
applicable to this exercise, as determined by appropriate officials of the
Corporation.
IN WITNESS WHEREOF, the undersigned has set his or her hand and seal,
this day of , 200_.
EMPLOYEE OR HIS ADMINISTRATOR,
EXECUTOR, PERSONAL REPRESENTATIVE OR
QUALIFIED TRANSFEREE
_________________________________________
ANNEX B
EMS TECHNOLOGIES, INC.
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 January
7, 2000, (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 in the manner specified
in the Option) 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 exercise 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
