Exhibit 10.16
JEP
1/27/95
ELECTROMAGNETIC SCIENCES, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, entered into as of the 27th day
of January, 1995 (the "Date of Grant"), by and between
Electromagnetic Sciences, Inc., a Georgia corporation
(hereinafter referred to as the "Corporation"), and John E.
Pippin (hereinafter referred to as the "Director").
W I T N E S S E T H
WHEREAS, the Optionee serves the Corporation as a member and
Chairman of its Board of Directors; and
WHEREAS, the Board of Directors has granted the Optionee a
stock option to purchase the number of shares of the
Corporation's common stock as hereinafter set forth, and the
Corporation and the Optionee desire to enter into a written
agreement with respect to such option.
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. 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") to purchase all or any
part of an aggregate of Ten Thousand (10,000) shares of the
Corporation's $.10 par value common stock (the "Common Stock")
beginning as follows:
First Date Number of
Exercisable Shares
July 1,1995 3,334
July 1,1996 3,333
July 1,1997 3,333
This Option shall expire and is not exercisable after 5:00 p.m.,
Atlanta time, on December 31, 2004.
Notwithstanding the beginning date or dates for exercise set
forth in the preceding paragraph of this Section, but subject to
the provisions of such 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 the
Corporation is registered under the Securities Exchange Act of
1934, as amended (the "Act"), and either (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 Act), becomes the holder of 50% or more
of the outstanding shares of Common Stock. If either of the
events specified in this paragraph have occurred, this 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.
2. Purchase Price. The price per share to be paid by the
Director for the shares subject to this Option shall be Eleven
and 75/100 Dollars ($11.75).
3. Exercise Terms. Beginning on the dates specified above,
and prior to the expiration of this Option as provided in Section
1 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 this 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 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.
5. 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 Exhibit A) signed by the Director, or by such
administrator, executor, personal representative or qualified
transferee, and delivered to the Corporation at its principal
office in Norcross, Georgia, to the attention of the Chief
Executive Officer, 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 Exhibit A) shares of Common Stock, owned by him or
her and duly endorsed or accompanied by stock transfer powers,
having a Fair Market Value (which for the purpose hereof shall
have the same meaning as in effect from time to time under the
Corporation's 1992 Stock Incentive Plan) equal to the total
purchase price applicable to such shares purchased hereunder, or
(iii) such a check, and the number of such shares 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 the withholding of shares of Common Stock otherwise
issuable under this Option in payment of such taxes, all as set
forth on Exhibit A and subject to any restrictions referred to
therein. Upon receipt of any such notice and accompanying
payments, and subject to the terms hereof, the Corporation agrees
to cause to be issued to the Director or to his 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 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, 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.
7. 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.
8. Investment Intention. Director is acquiring this Option
for his own account and not with any present intention to resell
or distribute this Option or any interests herein. Solely for
the purpose of enabling the Corporation to comply with the
Securities Act of 1933, as amended, and applicable state
securities laws (the "Acts"), it is agreed that at any time of
exercise of this Option, in whole or in part, the person
exercising this Option shall deliver to the Corporation an
appropriate investment letter prepared by counsel for the
Corporation stating that he is purchasing the shares to be issued
upon the exercise of this Option for investment purposes for his
own account and not with any present intention to resell or
distribute such shares. Such letter shall also set forth such
person's agreement not to resell or otherwise transfer such
shares except in transactions registered under the Acts or
established to the Corporation's satisfaction to be exempt from
such registration, and it is further agreed that the certificates
for such shares to be delivered to him may bear restrictive
legends to this effect. However, if the shares underlying this
Option shall at any time be registered under the Acts, or if it
is established to the Corporation's satisfaction that such shares
may be sold without registration under the Acts, the Corporation
shall release the person exercising this Option from this
investment representation, and shall not require the foregoing
investment letter and restrictive legend, or shall remove such
restrictive legend, as appropriate.
9. 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.
ELECTROMAGNETIC SCIENCES, INC.
[CORPORATE SEAL]
ATTEST: By: /s/Thomas E. Sharon
Chief Executive Officer
/s/William S. Jacobs
Secretary DIRECTOR:
/s/ John E. Pippin (SEAL)
John E. Pippin
EXHIBIT A
ELECTROMAGNETIC SCIENCES, INC.
NOTICE OF EXERCISE
OF STOCK OPTION
The undersigned hereby notifies Electromagnetic Sciences,
Inc. (the "Corporation") of his election to exercise his 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 John E. Pippin
("Director") and the Corporation dated January 27, 1995.
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, having an aggregate Fair
Market Value (as defined in the Electromagnetic Sciences, Inc.
1992 Stock Incentive Plan) on 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 presently owned by me, having an aggregate
Fair Market Value on 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 on the date hereof of $_____________.
The sum of (i) any such check plus (ii) the Fair Market Value on
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 hand and
seal, this ___ day of ______________, _______.
DIRECTOR OR HIS ADMINISTRATOR, EXECUTOR,
PERSONAL REPRESENTATIVE OR QUALIFIED
TRANSFEREE
___________________________________________