Exhibit 4(a)(2)
OPTION NO. 95-NQO-
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MILTOPE GROUP INC.
1995 STOCK OPTION AND PERFORMANCE AWARD PLAN
NON-QUALIFIED STOCK OPTION
GRANTED TO
____________________________
OPTIONEE
_________________________ _________________________
Number of Shares Price per Share
DATE GRANTED:____________ EXPIRATION DATE:_________
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NON-QUALIFIED STOCK OPTION AGREEMENT
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AGREEMENT made as of this [ ] day of [ ],
[199__] between Miltope Group Inc., a Delaware corporation (hereinafter
referred to as the "Company"), and [ ], residing at
[ ] (hereinafter referred to as the
"Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires, in connection with the employment
of the Employee and in accordance with its 1995 Stock Option and
Performance Award Plan (the "Plan"), to provide the Employee with an
opportunity to acquire Common Stock, $.01 par value (hereinafter referred
to as "Common Stock"), of the Company on favorable terms and thereby
increase his proprietary interest in the continued progress and success of
the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein set forth and other good and valuable consideration, the
Company and the Employee hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a
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determination by the Stock Option Committee of the Board of Directors of
the Company authorized to administer the Plan, made on [ ] (the
"Date of Grant") the Company, subject to the terms of the Plan and this
Agreement, hereby confirms that the Employee has been granted as a matter
of separate inducement and agreement, and in addition to and not in lieu of
salary or other compensation for services, the right to purchase
(hereinafter referred to as the "Option") an aggregate of [ ]
shares of Common Stock, subject to adjustment as provided in Section 8
hereof (such shares, as adjusted, shall hereinafter be referred to as the
"Shares"). The Option is not intended to qualify as an incentive stock
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option under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code").
2. Purchase Price. The purchase price of shares of Common
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Stock covered by the Option will be [$ ] per share, subject to
adjustment as provided in Section 8 hereof.
3. Exercise of Option. The Option shall be exercisable on the
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terms and conditions hereinafter set forth:
(a) The Option shall become exercisable cumulatively as to
the following amounts of the number of Shares originally subject thereto
(after giving effect to any adjustment pursuant to Section 8 hereof), on
the dates indicated:
(i) as to [ ] Shares on or after [not less than
six (6) months after grant];
(ii) as to [ ] Shares on or after [ ];
(iii) as to [ ] Shares on or after [ ]; and
(iv) as to [ ] Shares on or after [ ].
(b) The Option may be exercised pursuant to the provisions
of this Section 3, by notice and payment to the Company as provided in
Sections 11 and 16 hereof.
4. Term of Option. The term of the Option shall be a period of
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no more than ten (10)] years from the Date of Grant, subject to earlier
termination or cancellation as provided in this Agreement. This Option, to
the extent unexercised, shall expire at the end of the term set forth in
the immediately preceding sentence. The holder of the Option shall not
have any rights to dividends or any other rights of a stockholder with
respect to any shares of Common Stock subject to the Option until such
shares shall have been issued to him (as evidenced by the appropriate entry
on the books of a duly authorized transfer agent of the Company) provided
that the date of issuance shall not be earlier than the Closing Date (as
hereinafter defined with respect to such shares pursuant to Section 11
hereof) upon purchase of such shares upon exercise of the Option.
5. Non-transferability of Option. The Option shall not be
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transferable otherwise than by will or by the laws of descent and
distribution, or pursuant to a domestic relations order, and the Option may
be exercised during the lifetime of the Employee only by him. More
particularly, but without limiting the generality of the foregoing, the
Option may not be assigned, transferred (except as provided in the next
preceding sentence) or otherwise disposed of, or pledged or hypothecated in
any way, and shall not be subject to execution, attachment or other
process. Any assignment, transfer, pledge, hypothecation or other
disposition of the Option attempted contrary to the provisions of this
Agreement, or any levy of execution, attachment or other process attempted
upon the Option, will be null and void and without effect. Any attempt to
make any such assignment, transfer, pledge, hypothecation or other
disposition of the Option or any attempt to make any such levy of
execution, attachment or other process will cause the Option to terminate
immediately upon the happening of any such event; provided, however, that
any such termination of the Option under the foregoing provisions of this
Section 5 will not prejudice any rights or remedies which the Company or
any Parent or Subsidiary may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment. (a) If the Employee
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at any time ceases to be an employee of the Company and of any Parent or
Subsidiary by reason of his discharge for Good Cause the Option shall
forthwith terminate and the Employee shall forfeit all rights hereunder.
If, however, the Employee for any other reason (other than Disability or
death) ceases to be such an employee, the Option may, subject to the
provisions of Section 5 hereof, be exercised by the Employee to the same
extent the Employee would have been entitled under Section 3 hereof to
exercise the Option on the day next preceding the date of such cessation of
employment, at any time within three (3) months after such cessation of
employment, at the end of which period the Option to the extent not then
exercised, shall terminate and the Employee shall forfeit all rights
hereunder, even if the Employee subsequently returns to the employ of the
Company or any Parent or Subsidiary. In no event, however, may the Option
be exercised after the expiration of the term provided in Section 4 hereof.
(b) The Option shall not be affected by any change of
duties or position of the Employee so long as he continues to be an
employee of the Company or any subsidiary thereof. If the Employee is
granted a temporary leave of absence, such leave of absence shall be deemed
a continuation of his employment by the Company or any subsidiary thereof
for the purposes of this Agreement, but only if and so long as the
employing corporation consents thereto.
7. Exercise Upon Death or Disability. (a) If the Employee
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dies while he is employed by the Company or by any Parent or Subsidiary (or
within three (3) months after his termination of employment other than for
Good Cause), and on or after the first date upon which he would have been
entitled to exercise the Option under the provisions of Section 3 hereof,
the Option may, subject to the provisions of Section 5 hereof, be exercised
with respect to the shares of Common Stock as to which the deceased
Employee had not exercised the Option at the time of his death (and only to
the extent the Option was exercisable at the date of his death), by the
estate of the Employee (or by the person or persons who acquire the right
to exercise the Option by written designation of the Employee) at any time
within the period ending one (1) year after the death of the Employee, at
the end of which period the Option, to the extent not then exercised, shall
terminate and the estate or other beneficiaries shall forfeit all rights
hereunder. In no event, however, may the Option be exercised after the
expiration of the term provided in Section 4 hereof.
(b) In the event that the employment of the Employee by the
Company and any Parent or Subsidiary is terminated by reason of the
Disability of the Employee on or after the first date upon which he would
have been entitled to exercise the Option under the provisions of Section 3
hereof, the Option may, subject to the provisions of Section 5 hereof, be
exercised with respect to the shares of Common Stock as to which he had not
exercised the Option at the time of his Disability (and only to the extent
the Option was exercisable at the date of such termination of employment)
by the Employee at any time within the period ending one (1) year after the
date of such termination of employment (in no event, however, after the
expiration of the term provided in Section 4 hereof), at the end of which
period the Option, to the extent not then exercised, shall terminate and
the Employee shall forfeit all rights hereunder even if the Employee
subsequently returns to the employ of the Company or any Parent or
Subsidiary.
8. Adjustments. In the event there is any change in the Common
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Stock of the Company by reason of any reorganization, recapitalization,
stock split, stock dividend or otherwise, there shall be substituted for or
added to each share of Common Stock theretofore appropriated or thereafter
subject, or which may become subject, to this Option the number and kind of
shares of stock or other securities into which each outstanding share of
Common Stock shall be so changed or for which each such share shall be
exchanged, or to which each such share be entitled, as the case may be, and
the per share price thereof also shall be appropriately adjusted.
[9. Merger, Consolidation or Termination of Company. Upon (a)
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the merger or consolidation of the Company with or into another
corporation, if the agreement of merger or consolidation does not provide
for (i) the continuance of this Option, or (ii) the substitution of new
option(s) for this Option, or for the assumption of such Option by the
surviving corporation, or (b) the dissolution, liquidation, or sale of
substantially all the assets, of the Company, the Employee shall have the
right immediately prior to the effective date of such merger,
consolidation, dissolution, liquidation or sale of assets to exercise this
Option (to the extent not exercised and not otherwise expired or
terminated) in whole or in part without regard to any installment provision
that may have been made part of the terms and conditions of this Option
provided that any conditions precedent to the exercise of this Option,
other than the passage of time, have occurred. The Company, to the extent
practicable, shall give advance notice to the Employee of such merger,
consolidation, dissolution, liquidation or sale of assets. To the extent
this Option is not so exercised, it shall be forfeited as of the effective
time of such merger, consolidation, dissolution, liquidation or sale of
assets.]
10. Registration. The shares of Common Stock subject hereto and
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issuable upon the exercise hereof may not be registered under the
Securities Act of 1933, as amended, and, if required upon the request of
counsel to the Company, the Employee will give a representation as to his
investment intent with respect to such shares prior to their issuance as
set forth in Section 11 hereof.
The Company may register or qualify the shares covered by the
Option for sale pursuant to the Securities Act of 1933, as amended, at any
time prior to or after the exercise in whole or in part of the Option.
11. Method of Exercise of Option. (a) Subject to the terms and
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conditions of this Agreement, the Option shall be exercisable by notice (in
the manner set forth in Exhibit A hereto) and payment to the Company in
accordance with the procedure prescribed herein. Each such notice shall:
(i) state the election to exercise the Option and the
number of Shares in respect of which it is being exercised;
(ii) contain a representation and agreement as to
investment intent, if required by counsel to the Company with respect
to such Shares, in form satisfactory to counsel for the Company;
(iii) be signed by the Employee or the person or persons
entitled to exercise the Option and, if the Option is being exercised
by any person or persons other than the Employee, be accompanied by
proof, satisfactory to counsel for the Company, of the right of such
person or persons to exercise the Option; and
(iv) be received by the Company on or before the date of
the expiration of this Option. In the event the date of expiration of
this Option falls on a day which is not a regular business day at the
Company's executive office in Hope Hull, Alabama then such written
notice must be received at such office on or before the last regular
business day prior to such date of expiration.
(b) Upon receipt of such notice, the Company shall specify,
by written notice to the Employee or to the person or persons exercising
the Option, a date and time (such date and time being herein called the
"Closing Date") and place for payment of the full purchase price of such
Shares. The Closing Date shall not be more than fifteen days from the date
the notice of exercise is received by the Company unless another date is
agreed upon by the Company and the Employee or the person or persons
exercising the Option or is required upon advice of counsel for the Company
in order to meet the requirements of Section 12 hereof.
(c) Payment of the purchase price of any shares of Common
Stock, in respect of which the Option shall be exercised, shall be made by
the Employee or such person or persons at the place specified by the
Company on or before the Closing Date by delivering to the Company (i) a
certified or bank cashier's check payable to the order of the Company, or
(ii) properly endorsed certificates of shares of Common Stock (or
certificates accompanied by an appropriate stock power) with signature
guaranties by a bank or trust company or (iii) any combination of (i) and
(ii).
(d) The Option shall be deemed to have been exercised with
respect to any particular shares of Common Stock if, and only if, the
preceding provisions of this Section 11 and the provisions of Section 12
hereof shall have been complied with, in which event the Option shall be
deemed to have been exercised on the date the notice of exercise of the
Option was received by the Company. Anything in this Agreement to the
contrary notwithstanding, any notice of exercise given pursuant to the
provisions of this Section 11 shall be void and of no effect if all the
preceding provisions of this Section 11 and the provisions of Section 12
shall not have been complied with.
(e) The certificate or certificates for shares of Common
Stock as to which the Option shall be exercised will be registered in the
name of the Employee (or in the name of the Employee's estate or other
beneficiary if the Option is exercised after the Employee's death), or if
the Option is exercised by the Employee and if the Employee so requests in
the notice exercising the Option, will be registered in the name of the
Employee and another person jointly, with right of survivorship and will be
delivered on the Closing Date to the Employee at the place specified for
the closing, but only upon compliance with all of the provisions of this
Agreement.
(f) If the Employee fails to accept delivery of and pay for
all or any part of the number of Shares specified in such notice upon
tender or delivery thereof on the Closing Date, his right to exercise the
Option with respect to such undelivered Shares may be terminated in the
sole discretion of the Board of Directors of the Company. The Option may
be exercised only with respect to full Shares.
(g) The Company shall not be required to issue or deliver
any certificate or certificates for shares of its Common Stock purchased
upon the exercise of any part of this Option prior to the payment to the
Company, upon its demand, of any amount requested by the Company for the
purpose of satisfying its liability, if any, to withhold state or local
income or earnings tax or any other applicable tax or assessment (plus
interest or penalties thereon, if any, caused by a delay in making such
payment) incurred by reason of the exercise of this Option or the transfer
of shares thereupon. Such payment shall be made by the Employee in cash
or, with the consent of the Company, by tendering to the Company shares of
Common Stock equal in value to the amount of the required withholding. In
the alternative, the Company may, at its option, satisfy such withholding
requirements by withholding from the shares of Common Stock to be delivered
to the Employee pursuant to an exercise of this Option a number of shares
of Common Stock equal in value to the amount of the required withholding.
12. Approval of Counsel. The exercise of the Option and the
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issuance and delivery of shares of Common Stock pursuant thereto shall be
subject to approval by the Company's counsel of all legal matters in
connection therewith, including, but not limited to, compliance with the
requirements of the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder,
and the requirements of any stock exchange upon which the Common Stock may
then be listed.
13. Resale of Common Stock. (a) If so requested by the
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Company, upon any sale or transfer of the Common Stock purchased upon
exercise of the Option, the Employee shall deliver to the Company an
opinion of counsel satisfactory to the Company to the effect that either
(i) the Common Stock to be sold or transferred has been registered under
the Securities Act of 1933, as amended, and that there is in effect a
current prospectus meeting the requirements of Section 10(a) of said Act
which is being or will be delivered to the purchaser or transferee at or
prior to the time of delivery of the certificates evidencing the Common
Stock to be sold or transferred, or (ii) such Common Stock may then be sold
without violating Section 5 of said Act.
(b) The Common Stock issued upon exercise of the Option
shall bear the following legend if required by counsel for the Company:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY
NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS
THEY HAVE FIRST BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR
UNLESS, IN THE OPINION OF COUNSEL FOR THE
COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
14. Reservation of Shares. The Company shall at all times
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of the Option reserve and keep available such number of shares of the class
of stock then subject to the Option as will be sufficient to satisfy the
requirements of this Agreement.
15. Limitation of Action. The Employee and the Company each
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acknowledges that every right of action accruing to him or it, as the case
may be, and arising out of or in connection with this Agreement against the
Company or a Parent or Subsidiary, on the one hand, or against the
Employee, on the other hand, shall, irrespective of the place where an
action may be brought, cease and be barred by the expiration of three years
from the date of the act or omission in respect of which such right of
action arises.
16. Notices. Each notice relating to this Agreement shall be in
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writing and delivered in person or by certified mail to the proper address.
All notices to the Company or the Committee shall be addressed to them at
500 Richardson Road South, Hope Hull, Alabama 36043, Attn: Vice President,
Finance and Chief Financial Officer. All notices to the Employee shall be
addressed to the Employee or such other person or persons at the Employee's
address above specified. Anyone to whom a notice may be given under this
Agreement may designate a new address by notice to that effect.
17. Benefits of Agreement. This Agreement shall inure to the
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benefit of and be binding upon each successor and assign of the Company.
All obligations imposed upon the Employee and all rights granted to the
Company under this Agreement shall be binding upon the Employee's heirs,
legal representatives and successors.
18. Severability. In the event that any one or more provisions
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of this Agreement shall be deemed to be illegal or unenforceable, such
illegality or unenforceability shall not affect the validity and
enforceability of the remaining legal and enforceable provisions hereof,
which shall be construed as if such illegal or unenforceable provision or
provisions had not been inserted.
19. Governing Law. This Agreement will be construed and
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governed in accordance with the laws of the State of New York.
20. Employment. Nothing contained in this Agreement shall be
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construed as (a) a contract of employment between the Employee and the
Company or any Parent or Subsidiary, (b) as a right of the Employee to be
continued in the employ of the Company or any Parent or Subsidiary, or (c)
as a limitation of the right of the Company or any Parent or Subsidiary to
discharge the Employee at any time, with or without cause.
21. Definitions. Unless otherwise defined herein, all
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capitalized terms shall have the same definitions as set forth under the
Plan.
22. Incorporation of Terms of Plan. This agreement shall be
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interpreted under, and subject to, all of the terms and provisions of the
Plan, which are incorporated herein by reference.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one
of its Assistant Secretaries and the Employee has hereunto set his hand all
as of the date, month and year first above written.
MILTOPE GROUP INC.
By:________________________________
Name:
Title:
___________________________________
[Name of Employee]
___________________________________
Social Security Number
ATTEST:
_________________________
Secretary
EXHIBIT A
NON-QUALIFIED STOCK OPTION EXERCISE FORM
[DATE]
[Company Name]
[Address]
[City, State and Zip Code]
Attention: Secretary
Dear Sirs:
Pursuant to the provisions of the Non-Qualified Stock Option
Agreement dated [ ], whereby you have granted to me a
non-qualified stock option to purchase [ ] shares of Common Stock of
[ ] (the "Company"), I hereby notify you that I elect to
exercise my option to purchase ________________ of the shares covered by
such option at the price specified therein. In full payment of the price
for the shares being purchased hereby, I am delivering to you herewith (a)
a certified or bank cashier's check payable to the order of the Company in
the amount of $____________,* or (b) a certificate or certificates for [
] shares of Common Stock of the Company, and which have a fair market
value as of the date hereof of $___________, and a certified or bank
cashier's check, payable to the order of the Company, in the amount of
$________________.** Any such stock certificate or certificates are
endorsed, or accompanied by an appropriate stock power, to the order of the
Company, with my signature guaranteed by a bank or trust company or by a
member firm of the New York Stock Exchange. [I hereby acknowledge that I
am purchasing these shares for investment purposes only and not for
resale.]
Very truly yours,
______________________________
[Address]
(For notices, reports, dividend checks
and other communications to
stockholders.)
_______________________
* $_____________ of this amount is the purchase price of the shares, and
the balance represents payment of withholding taxes as follows:
Federal $_____________, State $_________ and Local $_______.
* $__________ of this amount is at least equal to the current market
value of one share of Common Stock of the Company, and the balance
represents payment of withholding taxes as follows: Federal
$________, State $_________ and Local $__________.