The Registrant requests that the Registration Statement become effective
immediately upon filing pursuant to Securities Act Rule 462.
As filed with the Securities and Exchange Commission on December 21, 1995
Registration No. 33-
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
MILTOPE GROUP INC.
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 11-2693062
------------------------------- -------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 Richardson Road South, Hope Hull, Alabama 36043
---------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
MILTOPE GROUP INC.
1995 Stock Option and Performance Award Plan
--------------------------------------------
(Full title of the plan)
George K. Webster
President and Chief Executive Officer
Miltope Group Inc.
500 Richardson Road South
Hope Hull, Alabama 36043
-------------------------------------------------
(Name and address of agent for service)
(334) 284-8665
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
With a copy to:
Leonard Gubar, Esq.
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
(212) 603-2000
===========================================================================
CALCULATION OF REGISTRATION FEE
-------------------------------
Title of Amount Proposed Proposed Amount of
securities to to be maximum maximum registration
be registered registered(1) offering price aggregate fee
per share offering
price
------------- ------------- -------------- --------- ------------
Common Stock 375,000 shs. $2.875 (2) $1,078,125 $371.77 (3)
Common Stock 125,000 shs. $3.23 (4) $ 403,750 $139.22 (5)
------- ---------- -------
500,000 shs. $1,481,875 $510.99
==========================================================================
(1) In addition, pursuant to Rule 416(a), this Registration Statement also
covers such indeterminate number of shares as may become subject to
options under the Miltope Group Inc. 1995 Stock Option and Performance
Award Plan (the "1995 Plan") as a result of the adjustment provisions
contained therein.
(2) The proposed maximum offering price per share was calculated pursuant
to Rule 457(c) using the average of the high and low prices of the
Common Stock on The Nasdaq Stock Market's National Market on December
18, 1995.
(3) The amount of the registration fee for shares of Common Stock issuable
with respect to options that may be granted in the future under the
1995 Plan was calculated pursuant to Rule 457(c) using the average of
the high and low prices of the Common Stock on The Nasdaq Stock
Market's National Market on December 18, 1995.
(4) The proposed maximum offering price per share was calculated pursuant
to Rule 457(h) based upon the average exercise price at which such
outstanding options to purchase shares of Common Stock under the 1995
Plan may be exercised.
(5) The amount of the registration fee for shares of Common Stock issuable
upon exercise of outstanding options under the 1995 Plan was
calculated pursuant to Rule 457(h) using the prices at which such
options may be exercised.
<PAGE>
PART I*
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
----------------
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
-----------------------------------------------------------
-----------------
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended, and the
Note to Part I of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
Each of the following documents filed by the Registrant with the
Securities and Exchange Commission (the "Commission") is incorporated
herein by reference.
1. (a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994.
(b) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1995.
(c) The Registrant's Current Report on Form 8-K dated April
18, 1995.
(d) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended July 1, 1995.
(e) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended October 1, 1995.
2. The description of the Common Stock which is contained in
the Registrant's Form 8-A filed on April 26, 1985 under Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the effective
date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered
hereunder have been sold or which de-registers all such securities then
remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the respective dates of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Legal matters in connection with the validity of the issuance of
the securities offered hereby will be passed upon by Reid & Priest LLP, 40
West 57th Street, New York, New York 10019. Leonard Gubar, a member of
such firm, serves as the Secretary of the Registrant.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Registrant is a Delaware corporation. Section 145 of the
Delaware General Corporation Law generally provides that a corporation is
empowered to indemnify any person who is made a party to any threatened,
pending or completed action, suit or proceeding by reason of the fact that
he is or was a director, officer, employer or agent of the Registrant or is
or was serving, at the request of the Registrant, in any of such capacities
of another corporation or other enterprise, if such director, officer,
employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Registrant,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. This statute describes in
detail the right of the Registrant to indemnify any such person. Article
IX of the By-Laws of the Registrant, as amended, provides generally for
indemnification of all such directors, officers, employees and agents to
the full extent permitted under the above-referenced Delaware statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS
--------
The following Exhibits are filed herewith as part of this
Registration Statement:
Exhibit No. Description
----------- -----------
4(a)(1)* Miltope Group Inc. 1995 Stock Option and
Performance Award Plan
4(a)(2)* Form of Non-Qualified Stock Option
Agreement under the 1995 Stock Option
and Performance Award Plan
4(a)(3)* Form of Incentive Stock Option Agreement
under the 1995 Stock Option and
Performance Award Plan
5* Opinion of Reid & Priest LLP
23(a)* Consent of Deloitte & Touche LLP
23(b)* Consent of Reid & Priest LLP (included
in Exhibit 5)
24* Power of Attorney (See page II-5)
99* Additional Exhibits (Calculation
of Registration Fee)
-----------------
*Filed herewith.
ITEM 9. UNDERTAKINGS
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) of
-------- -------
this section do not apply if the Registration Statement is on Form S-3,
Form S-8 or Form F-3, and if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such posteffective amendment shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of
New York, on the 21st day of December, 1995.
MILTOPE GROUP INC.
By: /s/George K. Webster
----------------------------------------------
George K. Webster
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each director and officer
whose signature appears below constitutes and appoints George K. Webster
and Leonard Gubar, or either of them, his true and lawful attorney-in-fact
and agent, with full power of substitution, to sign in any and all
capacities any and all post-effective amendments to this Registration
Statement on Form S-8 and to file the same with all exhibits thereto and
other documents in connection therewith with the Securities and Exchange
Commission, granting such attorneys-in-fact and agents, and each of them,
full power and authority to do all such other acts and execute all such
other documents as they, or any of them, may deem necessary or desirable in
connection with the foregoing, as fully as the undersigned might or could
do in person, hereby ratifying and confirming all that such attorneys-in-
fact and agents, or any of them, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
/s/George K. Webster President and Chief Executive December 21, 1995
----------------------- Officer (Principal Executive
George K. Webster Officer)
/s/James Matthews Vice President, Finance and December 21, 1995
----------------------- Chief Financial Officer
James Matthews (Principal Financial and
Accounting Officer)
/s/Alvin E. Nashman Director December 21, 1995
-----------------------
Alvin E. Nashman
/s/William Mustard
---------------------- Director December 21, 1995
William Mustard
Director
---------------------- Director December , 1995
Jan H. Stenbeck
/s/Franklin Miller
----------------------- Director December 21, 1995
Franklin Miller
/s/John Cusick
----------------------- Director December 21, 1995
John Cusick
/s/J. Shelby Bryan
----------------------- Director December 21, 1995
J. Shelby Bryan
/s/William Dickinson Director December 21, 1995
----------------------
William Dickinson
/s/Richard Pandolfi
---------------------- Director December 21, 1995
Richard Pandolfi
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Number Description of Exhibit Page
-------------- ---------------------- ----
4(a)(1) Miltope Group Inc. 1995
Stock Option and
Performance Award Plan..........
4(a)(2) Form of Non-Qualified Stock
Option Agreement under the
1995 Stock Option and
Performance Award Plan..........
4(a)(3) Form of Incentive Stock
Option Agreement under the
1995 Stock Option and
Performance Award Plan..........
5 Opinion of Reid & Priest
LLP.............................
23(a) Consent of Deloitte & Touche
LLP.............................
23(b) Consent of Reid & Priest LLP
(included with Exhibit 5).......
24 Power of Attorney (See page
II-5)...........................
99 Additional Exhibits (Calculation
of Registration Fee)............
Exhibit 4(a)(1)
MILTOPE GROUP INC.
1995 STOCK OPTION AND PERFORMANCE AWARD PLAN
-----------------
Effective as of April 11, 1995
<PAGE>
MILTOPE GROUP INC.
1995 STOCK OPTION AND PERFORMANCE AWARD PLAN
INTRODUCTION
Miltope Group Inc., a Delaware corporation (hereinafter referred
to as the "Corporation"), hereby establishes an incentive compensation plan
to be known as the "Miltope Group Inc. 1995 Stock Option and Performance
Award Plan" (hereinafter referred to as the "Plan"), as set forth in this
document. The Plan permits the grant of Non-Qualified Stock Options,
Incentive Stock Options, Stock Appreciation Rights, Restricted Stock,
Performance Units and Performance Shares.
The Plan shall become effective on April 11, 1995. However, it
shall be rendered null and void and have no effect, and all Plan Awards
granted hereunder shall be canceled, if the Plan is not approved by a
majority vote of the Corporation's Stockholders within twelve (12) months
of such date.
The purpose of the Plan is to promote the success and enhance the
value of the Corporation by linking the personal interests of Participants
to those of the Corporation's stockholders, customers and employees, by
providing Participants with an incentive for outstanding performance. The
Plan is further intended to provide flexibility to the Corporation in its
ability to motivate, and retain the services of, participants upon whose
judgment, interest and special effort the successful conduct of its
operations is largely dependent.
The Plan also provides pay systems that support the Corporation's
business strategy and emphasizes pay-for-performance by tying reward
opportunities to carefully determined and articulated performance goals at
corporate, operating unit, business unit and/or individual levels.
DEFINITIONS
For purposes of this Plan, the following terms shall be defined
as follows unless the context clearly indicates otherwise:
(a) "Code" shall mean the Internal Revenue Code of 1986, as
----
amended, and the rules and regulations thereunder.
(b) "Committee" shall mean the Stock Option Committee of the
---------
Board of Directors of the Corporation.
(c) "Common Stock" shall mean the common stock, par value $0.01
------------
per share, of the Corporation.
(d) "Corporation" shall mean Miltope Group Inc., a Delaware
-----------
corporation.
(e) "Disability" shall have the same meaning as the term
----------
"permanent and total disability" under Section 22(e)(3) of the Code.
(f) "Exchange Act" shall mean the Securities Exchange Act of
-------------
1934, as amended, and the rules and regulations thereunder.
(g) "Fair Market Value" of the Corporation's Common Stock on a
-----------------
Trading Day shall mean the last reported sale price for Common Stock or, in
case no such reported sale takes place on such Trading Day, the average of
the closing bid and asked prices for the Common Stock for such Trading Day,
in either case on the principal national securities exchange on which the
Common Stock is listed or admitted to trading, or if the Common Stock is
not listed or admitted to trading on any national securities exchange, but
is traded in the over-the-counter market, the closing sale price of the
Common Stock or, if no sale is publicly reported, the average of the
closing bid and asked quotations for the Common Stock, as reported by the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") or any comparable system or, if the Common Stock is not listed
on NASDAQ or a comparable system, the closing sale price of the Common
Stock or, if no sale is publicly reported, the average of the closing bid
and asked prices, as furnished by two members of the National Association
of Securities Dealers, Inc. who make a market in the Common Stock selected
from time to time by the Corporation for that purpose. In addition, for
purposes of this definition, a "Trading Day" shall mean, if the Common
Stock is listed on any national securities exchange, a business day during
which such exchange was open for trading and at least one trade of Common
Stock was effected on such exchange on such business day, or, if the Common
Stock is not listed on any national securities exchange but is traded in
the over-the-counter market, a business day during which the
over-the-counter market was open for trading and at least one "eligible
dealer" quoted both a bid and asked price for the Common Stock. An
"eligible dealer" for any day shall include any broker-dealer who quoted
both a bid and asked price for such day, but shall not include any
broker-dealer who quoted only a bid or only an asked price for such day.
In the event the Corporation's Common Stock is not publicly traded, the
Fair Market Value of such Common Stock shall be determined by the Committee
in good faith.
(h) "Good Cause" shall mean (i) a Participant's willful or gross
----------
misconduct or willful or gross negligence in the performance of his duties
for the Corporation or for any Parent or Subsidiary after prior written
notice of such misconduct or negligence and the continuance thereof for a
period of 30 days after receipt by such Participant of such notice, (ii) a
Participant's intentional or habitual neglect of his duties for the
Corporation or for any Parent or Subsidiary after prior written notice of
such neglect, or (iii) a Participant's theft or misappropriation of funds
of the Corporation or of any Parent or Subsidiary or commission of a
felony.
(i) "Incentive Stock Option" shall mean a stock option
----------------------
satosfying the requirements for tax-favored treatment under Section 422 of
the Code.
(j) "Non-Qualified Option" shall mean a stock option which does
--------------------
not satisfy the requirements for tax-favored treatment under Section 422 of
the Code.
(k) "Option" shall mean an Incentive Stock Option or a Non
------
Qualified Stock Option granted pursuant to the provisions of Section V
hereof.
(l) "Optionee" shall mean a Participant who is granted an
--------
Option under the terms of this Plan.
(m) "Parent" shall mean a parent corporation of the Corporation
------
within the meaning of Section 424(e) of the Code.
(n) "Participant" shall mean any employee or other individual
-----------
participating under the Plan.
(o) "Performance Share" shall mean a Plan Award granted pursuant
-----------------
to the provisions of Section VII hereof, with such Award nominally being
based upon the performance of the Corporation's Common Stock.
(p) "Performance Unit" shall mean a Plan Award granted pursuant
----------------
to the provisions of Section VII hereof, which Award may be based upon any
factor set forth under such Section.
(q) "Plan Award" shall mean an Option, Performance Share,
----------
Performance Unit or Restricted Stock granted pursuant to the terms of this
Plan.
(r) "Restricted Stock" shall mean a grant of one or more shares
----------------
of Common Stock subject to certain restrictions as provided under Section
VII hereof.
(s) "Section 16" shall mean Section 16 of the Exchange Act and
----------
the rules and regulations promulgated thereunder.
(t) "Securities Act" shall mean the Securities Act of 1933, as
--------------
amended, and the rules and regulations thereunder.
(u) "Subsidiary" shall mean a subsidiary corporation of the
----------
Corporation within the meaning of Section 424(f) of the Code.
SECTION I
ADMINISTRATION
The Plan shall be administered by the Committee, which shall be
composed of at least two directors who meet the requirements of
disinterested administrators under Section 16. Subject to the provisions
of the Plan, the Committee may establish from time to time such
regulations, provisions, proceedings and conditions of awards which, in its
opinion, may be advisable in the administration of the Plan. A majority of
the Committee shall constitute a quorum, and, subject to the provisions of
Section IV of the Plan, the acts of a majority of the members present at
any meeting at which a quorum is present, or acts approved in writing by a
majority of the Committee, shall be the acts of the Committee. This Plan
is intended to be a bifurcated plan. The references to Section 16
contained herein are intended to apply only to the extent necessary for the
Plan to comply with Rule 16b-3 under Section 16 and only as to those
insiders of the Corporation who are deemed to be Section 16 insiders.
SECTION II
SHARES AVAILABLE
Subject to the adjustments provided in Section IX of the Plan,
the aggregate number of shares of the Common Stock which may be granted for
all purposes under the Plan shall be five hundred thousand (500,000)
shares. Shares of Common Stock underlying awards of securities (derivative
or not) and shares of Common Stock awarded hereunder (whether or not on a
restricted basis) shall be counted against the limitation set forth in the
immediately preceding sentence and may be reused (e.g., in the event that
----
an Option or an award of shares of Common Stock on a restricted basis under
the Plan to any individual expires, is terminated unexercised, or is
forfeited as to any shares covered thereby), however, with respect
to Plan Awards made to Section 16 insiders, shares of Common Stock
may be reused only to the extent permitted under Section 16. To the
extent that a Stock Appreciation Right included in an Option is
exercised, such Option shall be deemed to have been exercised.
Incentive and Non-Qualified Stock Options, Stock Appreciation Rights,
Performance Shares, Restricted Stock and Performance Units awarded
under the Plan may be fulfilled in accordance with the terms of the
Plan with either authorized and unissued shares of the Common Stock,
issued shares of such Common Stock held in the Corporation's treasury
or shares of Common Stock acquired on the open market.
SECTION III
ELIGIBILITY
Present and future management and key employees (including
management or key employees who are also directors) of the Corporation, or
of any Parent or Subsidiary, who are regularly employed on a salaried basis
as common law employees shall be eligible to participate in the Plan.
SECTION IV
AUTHORITY OF COMMITTEE
The Plan shall be administered by, or under the direction of, the
Committee, which shall administer the Plan so as to comply at all times
with the Exchange Act, to the extent such compliance is required, and,
subject to the Code, shall otherwise have plenary authority to interpret
the Plan and to make all determinations specified in or permitted by the
Plan or deemed necessary or desirable for its administration or for the
conduct of the Committee's business. Subject to the provisions of Section
XIII hereof, all interpretations and determinations of the Committee may be
made on an individual or group basis and shall be final, conclusive, and
binding on all interested parties. Subject to the express provisions of
the Plan, the Committee shall have authority, in its discretion, to
determine the persons to whom Plan Awards shall be granted, the times when
such Plan Awards shall be granted, the number of Plan Awards, the purchase
price or exercise price of each Plan Award, the period(s) during which such
Plan Award shall be exercisable (whether in whole or in part), the
restrictions to be applicable to Plan Awards and the other terms and
provisions thereof (which need not be identical). In addition, the
authority of the Committee shall include without limitation the following:
(a) Financing. The arrangement of temporary financing for an
---------
Optionee by registered broker-dealers, under the rules and regulations of
the Federal Reserve Board, for the purpose of assisting the Optionee in the
exercise of an Option, such authority to include the payment by the
Corporation of the commissions of the broker-dealer;
(b) Procedures for Exercise of Option. The establishment of
---------------------------------
procedures for an Optionee (i) to exercise an Option by payment of cash or
any other property acceptable to the Committee, (ii) to have withheld from
the total number of shares of Common Stock to be acquired upon the exercise
of an Option that number of shares having a Fair Market Value, which,
together with such cash as shall be paid in respect of fractional shares,
shall equal the option exercise price of the total number of shares of
Common Stock to be acquired, (iii) to exercise all or a portion of an
Option by delivering that number of shares of Common Stock already owned by
him having a Fair Market Value which shall equal the Option exercise price
for the portion exercised and, in cases where a Option is not exercised in
its entirety, to permit the Optionee to deliver the shares of Common Stock
thus acquired by him in payment of shares of Common Stock to be received
pursuant to the exercise of additional portions of such Option, the effect
of which shall be that an Optionee can in sequence utilize such newly
acquired shares of Common Stock in payment of the exercise price of the
entire option, together with such cash as shall be paid in respect of
fractional shares and (iv) to engage in any form of "cashless" exercise.
(c) Withholding. The establishment of a procedure whereby a
-----------
number of shares of Common Stock or other securities may be withheld from
the total number of shares of Common Stock or other securities to be issued
upon exercise of an Option, Stock Appreciation Right or other grant or
award, as applicable, or for the tender of shares of Common Stock owned by
the Participant to meet the obligation of withholding for taxes incurred by
the Optionee upon such exercise.
(d) Types of Plan Awards. The Committee may grant awards in the
--------------------
form of one or more of the following: (i) Incentive Stock Options and
Non-Qualified Stock Options (described in Section V), (ii) Stock
Appreciation Rights (described in Section VI), (iii) grants of Restricted
Stock (described in Section VII), (iv) Performance Share Awards (described
in Section VII) and (v) Performance Units (described in Section VII).
SECTION V
STOCK OPTIONS
The Committee shall have the authority, in its discretion, to
grant Incentive Stock Options or to grant Non-Qualified Stock Options or to
grant both types of Options. No Option shall be granted for a term of more
than ten (10) years. Notwithstanding anything contained herein to the
contrary, an Incentive Stock Option may be granted only to common law
employees of the Corporation or of any Parent or Subsidiary now existing or
hereafter formed or acquired, and not to any director or officer who is not
also such a common law employee. The terms and conditions of the Options
shall be determined from time to time by the Committee; provided, however,
-------- -------
that the Options granted under the Plan shall be subject to the following:
(a) Exercise Price. The Committee shall establish the exercise
--------------
price at the time any Option is granted at such amount as the Committee
shall determine; provided, however, that the exercise price for each share
-------- -------
of Common Stock purchasable under any Incentive Stock Option granted
hereunder shall be such amount as the Committee shall, in its best
judgment, determine to be not less than one hundred percent (100%) of the
Fair Market Value per share of Common Stock at the date the Option is
granted; and provided, further, that in the case of an Incentive Stock
Option granted to a person who, at the time such Incentive Stock
Option is granted, owns shares of stock of the Corporation or of any
Parent or Subsidiary which possess more than ten percent (10%) of the
total combined voting power of all classes of shares of stock of the
Corporation or of any Parent or Subsidiary, the exercise price for each
share of Common Stock shall be such amount as the Committee, in its best
judgment, shall determine to be not less than one hundred ten percent
(110%) of the Fair Market Value per share of Common Stock at the date the
Option is granted. The exercise price will be subject to adjustment in
accordance with the provisions of Section IX of the Plan.
(b) Payment of Exercise Price. The price per share of Common
-------------------------
Stock with respect to each Option shall be payable at the time the Option
is exercised. Such price shall be payable in cash or, upon the discretion
of the Committee, pursuant to any of the methods set forth in Sections
IV(a) or (b) hereof. Shares of Common Stock delivered to the Corporation
in payment of the exercise price shall be valued at the Fair Market Value
of the Common Stock on the date preceding the date of the exercise of the
Option.
(c) Exercisability of Options. Each Option shall be exercisable
-------------------------
in whole or in installments, and at such time(s), and subject to the
fulfillment of any conditions on exercisability as may be determined by the
Committee at the time of the grant of such Options. The right to purchase
shares of Common Stock shall be cumulative so that when the right to
purchase any shares of Common Stock has accrued such shares of Common Stock
or any part thereof may be purchased at any time thereafter until the
expiration or termination of the Option.
(d) Expiration of Options. No Option by its terms shall be
---------------------
exercisable after the expiration of ten (10) years from the date of grant
of the Option; provided, however, in the case of an Incentive Stock Option
-------- -------
granted to a person who, at the time such Option is granted, owns shares of
stock of the Corporation or of any Parent or Subsidiary possessing more
than ten percent (10%) of the total combined voting power of all classes of
shares of stock of the Corporation or of any Parent or Subsidiary, such
Option shall not be exercisable after the expiration of five (5) years from
the date such Option is granted.
(e) Exercise Upon Death of Optionee. Subject to the provisions
--------------------------------
of Section V(h) hereof, in the event of the death of the Optionee prior to
his termination of employment (or within three (3) months after his
termination of employment other than for Good Cause) with the Corporation
or with any Parent or Subsidiary, his estate (or other beneficiary, if so
designated in writing by the Participant) shall have the right, within one
(1) year after the date of death (but in no case after the expiration
date of the Option(s)), to exercise his Option(s) with respect to the
shares of Common Stock as to which the deceased Optionee had not exercised
his Option at the time of his death, and only to the extent such Option
or Options were exercisable at such time.
(f) Exercise Upon Disability of Optionee. Subject to the
------------------------------------
provisions of Section V(h) hereof, if the employment by the Corporation or
by any Parent or Subsidiary of an Optionee is terminated because of
Disability, he shall have the right, within one (1) year after the date of
such termination (but in no case after the expiration of the Option(s)), to
exercise his Option(s) with respect to the shares of Common Stock as to
which he had not exercised his Option at the time of such termination, and
only to the extent such Option or Options were exercisable at such time.
(g) Exercise Upon Optionee's Termination of Employment. Except
--------------------------------------------------
as provided in the following sentence, if the employment of an Optionee by
the Corporation or by any Parent or Subsidiary is terminated for any reason
other than those specified in Sections V(e) and (f) above, he shall have
the right, within three (3) months after the date of such termination (but
in no case after the expiration date of the Option(s)), to exercise his
Option(s) only with respect to that number of shares of Common Stock that
he was entitled to purchase pursuant to Options that were exercisable
immediately prior to such termination. Notwithstanding the provisions of
the immediately preceding sentence, if an Optionee's employment is
terminated by the Corporation or by any Parent or Subsidiary for Good Cause
then the Optionee shall, at the time of such termination of employment,
forfeit his rights to exercise all of such Option(s).
(h) Maximum Amount of Incentive Stock Options. Each Plan Award
-----------------------------------------
under which Incentive Stock Options are granted shall provide that to the
extent the aggregate of the (i) Fair Market Value of the shares of Common
Stock (determined as of the time of the grant of the Option) subject to
such Incentive Stock Option and (ii) the fair market values (determined as
of the date(s) of grant of the options) of all other shares of Common Stock
subject to incentive stock options granted to an Optionee by the
Corporation or any Parent or Subsidiary, which are exercisable for the
first time by any person during any calendar year, exceed(s) one hundred
thousand dollars ($100,000), such excess shares of Common Stock shall not
be deemed to be purchased pursuant to Incentive Stock Options. The terms
of the immediately preceding sentence shall be applied by taking options
into account in the order in which they are granted.
SECTION VI
STOCK APPRECIATION RIGHTS
(a) Tandem Stock Appreciation Rights. The Committee shall have
--------------------------------
the authority to grant Stock Appreciation Rights in tandem with an Option,
either at the time of grant of the Option or by amendment. Each such Stock
Appreciation Right shall be subject to the same terms and conditions as the
related Option, if any, and shall be exercisable only at such times and to
such extent as the related Option is exercisable; provided, however, that a
-------- -------
Stock Appreciation Right may be exercised only when the Fair Market Value
of the Common Stock exceeds the exercise price of the related Option. A
Stock Appreciation Right shall entitle the Optionee to surrender to the
Corporation unexercised the related Option, or any portion thereof, and to
receive from the Corporation in exchange therefor that number of shares of
Common Stock (or cash, as provided below) having an aggregate value equal
to the excess of the Fair Market Value of one share of the Common Stock of
the Corporation on the day preceding the surrender of such Option over the
exercise price per share of Common Stock multiplied by the number of shares
of Common Stock provided for under the Option, or portion thereof, which is
surrendered; provided, however, that no fractional shares shall be issued
-------- -------
of Common Stock (cash being delivered to the Participant in lieu of
such fractional shares). The number of shares of Common Stock which
may be received pursuant to the exercise of a Stock Appreciation Right
may not exceed the number of shares of Common Stock provided for under the
Option, or portion thereof, which is surrendered. The Committee shall have
the right, in its sole discretion, to approve an election by a Participant
to receive cash in whole or in part in settlement of the Stock
Appreciation Right. Within thirty (30) days following the receipt by
the Committee of a request to receive cash in whole or in part in
settlement of a Stock Appreciation Right, the Committee shall, in its
sole discretion, either consent to or disapprove, in whole or in part,
such a request. A request to receive cash in whole or in part in
settlement of a Stock Appreciation Right may provide that, in the
event the Committee shall disapprove such request, such request shall
be deemed to be an exercise of such Stock Appreciation Right for shares
of Common Stock.
(b) Freestanding Stock Appreciation Rights. The Committee also
--------------------------------------
shall have the authority to grant Stock Appreciation Rights unrelated to
any Option that may be granted hereunder. Each such Stock Appreciation
Right shall be subject to the terms and conditions as determined by the
Committee. A Freestanding Stock Appreciation Right shall entitle the
Optionee to surrender to the Corporation a portion or all of such rights
and to receive from the Corporation in exchange therefor that number of
shares of Common Stock (or cash, as provided below) having an aggregate
value equal to the excess of the Fair Market Value of one share of the
Common Stock of the Corporation on the day preceding the surrender of such
Rights over the Fair Market Value per share of Common Stock (determined as
of the date the Stock Appreciation Right was granted) multiplied by the
number of Stock Appreciation Rights which are surrendered; provided,
however, that no fractional shares of Common Stock shall be issued (cash
being delivered to the Participant in lieu of such fractional shares).
The Committee shall have the right, in its sole discretion, to
approve an election by a Participant to receive cash in whole or in
part in settlement of the Stock Appreciation Right. Within thirty (30)
days following the receipt by the Committee of a request to receive cash
in whole or in part in settlement of a Stock Appreciation Right, the
Committee shall, in its sole discretion, either consent to or disapprove,
in whole or in part, such a request. A request to receive cash in whole
or in part in settlement of a Stock Appreciation Right may provide
that, in the event the Committee shall disapprove such request, such
request shall be deemed to be an exercise of such Stock Appreciation
Right for shares of Common Stock.
(c) Exercise of Stock Appreciation Rights. If the Participant (i)
-------------------------------------
voluntarily ceases to be an employee of the Corporation, or of any Parent
or Subsidiary, with the written consent of the Committee, (ii) dies or
becomes Disabled, (iii) terminates his employment with the Corporation or
with any Parent or Subsidiary due to Retirement, or (iv) suffers an
involuntary termination of his employment with the Corporation or with any
Parent or Subsidiary for reasons other than Good Cause, the Plan Award
earned under Section VI(b) with respect to any outstanding Freestanding
Stock Appreciation Rights shall be determined as otherwise provided herein
or in any agreement executed by the Corporation and such Participant
hereunder. If the Participant ceases to be an employee of the Corporation
or of any Parent or Subsidiary for any other reason, all Plan Awards
granted hereunder and subject to restrictions shall be forfeited.
SECTION VII
PERFORMANCE SHARES, RESTRICTED STOCK AND PERFORMANCE UNITS
The Committee shall have the authority to grant Performance
Shares, Restricted Stock or Performance Units either separately or in
combination with other Plan Awards. The terms and conditions of
Performance Shares, Restricted Stock or Performance Units shall be
determined from time to time by the Committee, without limitation, except
as otherwise provided in the Plan. Furthermore:
(a) Services Rendered. Each such Plan Award shall be granted for
-----------------
services rendered (or to be rendered) and at no additional cost to the
Participant, provided, however, that the value of the services performed
must, in the opinion of counsel to the Corporation, equal or exceed the par
value of such shares of Common Stock to be granted to the Participant.
(b) Performance Account. The Corporation shall establish a
-------------------
performance account for each Participant to whom Performance Shares or
Performance Units are granted, and the Performance Shares or Performance
Units granted shall be credited to such account. Shares of Common Stock
granted in the form of Restricted Stock, shall be registered in the name of
the Participant and together with a stock power endorsed in blank,
deposited with the Corporation at the time the account is credited.
(c) Duration of Performance or Restriction Period. The duration
---------------------------------------------
of the performance or restriction period shall be determined by the
Committee at the time each such grant is made. More than one grant may be
outstanding at any one time, and performance or restriction periods may be
of different lengths. With respect to Restricted Stock, the Participant
shall generally have the rights and privileges of a stockholder of the
Corporation as to such shares, including the right to vote such Restricted
Stock, except that the following restrictions shall apply: (i) the
Participant shall not be entitled to delivery of a certificate until the
expiration or termination of the restriction period, (ii) none of the
shares of Restricted Stock may be sold, transferred, assigned, pledged, or
otherwise encumbered or disposed of during the restriction period and (iii)
all of the shares of Restricted Stock shall be forfeited by the Participant
without further obligation on the part of the Corporation as set forth in
Section VII(g) hereof. Cash and stock dividends with respect to the
Restricted Stock will be withheld by the Corporation for the Participant's
account, and interest may be paid on the amount of cash dividends withheld
at a rate and subject to such terms as may be determined by the
Corporation. All cash or stock dividends so withheld by the Corporation
shall initially be subject to forfeiture, but shall become non-forfeitable
and payable at the same times, and at the same rate, as determined with
respect to the lapse of restrictions on Restricted Stock. Upon the
forfeiture of any Restricted Stock, such forfeited shares of Common Stock
shall be transferred to the Corporation without further action by the
Participant. Upon the expiration or termination of the restriction period,
the restrictions imposed on the appropriate Restricted Stock shall lapse
and a stock certificate for the number of shares of Restricted Stock with
respect to which the restrictions have lapsed shall be delivered, free of
all such restrictions, except any that may be imposed by law or by any
applicable stockholders' agreement, to the Participant. A Participant who
files an election with the Internal Revenue Service to include the fair
market value of any Restricted Stock in gross income while they are still
subject to restrictions shall promptly furnish the Corporation with a copy
of such election together with the amount of any federal, state, local or
other taxes that may be required to be withheld to enable the Corporation
to claim an income tax deduction with respect to such election.
(d) Performance Targets. At the time of each grant, the
--------------------
Committee shall establish (subject to the provisions of Section VII(e)
hereof) performance targets and/or periods of service to which the
vesting of Performance Shares, Performance Units and/or Restricted Stock
shall be constituted as appropriate. The Committee may also
establish a relationship between performance targets and the number of
Performance Shares or the number or value of Performance Units which
shall be earned. The Committee also shall establish a relationship
between performance results other than the targets and the number of
Performance Shares or Restricted Stock and the number or value of
Performance Units, if any, which shall be earned. The Committee
shall determine the measures of performance to be used in determining
the extent to which Performance Shares or Performance Units are
earned or to which restrictions on Restricted Stock or units shall
lapse. Performance measures and targets may vary among grants, but once
established for a grant may not be modified with respect to that grant
except as provided in Section X and provided that, with respect to
Performance Shares and Performance Units, the Committee may, in its
sole discretion, make such adjustments to performance targets, the
number of Performance Shares or the number or value of Performance
Units which shall be earned, or such other changes as it may deem
necessary or advisable in the event of material changes in the
criteria used for establishing performance targets which would result in
the dilution or enlargement of a Participant's award outside the goals
intended by the Committee at the time of the grant of the Plan Award.
(e) Performance Measures. The performance measures utilized to
--------------------
determine the number of Performance Shares, Performance Units or shares of
Restricted Stock that become vested under the Plan shall be as determined
by the Committee in its sole discretion and may include, but shall not be
limited to:
(i) Total stockholder return (measured as the sum of Common
Stock appreciation and dividends declared) in relation to any
nationally recognized stock index.
(ii) Return on invested capital in relation to target
objectives.
(iii) Share earnings/earnings growth in relation to target
objectives.
(iv) Cash flow/cash flow growth in relation to target
objectives.
In the event that applicable tax and/or securities laws change to permit
Committee discretion to alter the governing performance measures without
obtaining stockholder approval of such changes, the Committee shall have
sole discretion to make such changes without obtaining stockholder
approval.
(f) Dividend or Interest Equivalents. The Committee may provide
--------------------------------
that amounts equivalent to dividends or interest shall be payable with
respect to Performance Shares, Restricted Stock or Performance Units held
in the Participant's performance account. Such amounts shall be credited
to the performance account, and shall be payable to the Participant in cash
or in Common Stock, as set forth under the terms of the Plan Award, at such
time as the restrictions on the Restricted Stock are removed or the
Performance Shares or Performance Units are earned. The Committee further
may provide that amounts equivalent to interest or dividends held in the
performance accounts shall be credited to such accounts on a periodic or
other basis.
(g) Termination of Employment. If the Participant (i) voluntarily
-------------------------
ceases to be an employee of the Corporation, or of any Parent or
Subsidiary, with the written consent of the Committee, (ii) dies or becomes
Disabled, (iii) terminates his employment with the Corporation or with any
Parent or Subsidiary due to Retirement or (iv) suffers an involuntary
termination of his employment with the Corporation or with any Parent or
Subsidiary for reasons other than Good Cause, the Plan Award earned under
this Section with respect to any outstanding Performance Shares, Restricted
Stock, Performance Units or interest on dividend equivalents shall be
determined as otherwise provided herein or in any agreement executed by
such Participant hereunder. If the Participant ceases to be an employee of
the Corporation or of any Parent or Subsidiary for any other reason, all
Plan Awards granted hereunder and subject to restrictions shall be
forfeited. In such case, the Corporation shall have the right to complete
the blank stock power with respect to Restricted Stock and transfer the
same to its treasury.
SECTION VIII
DEFERRAL OF PAYMENTS
The Committee may, in its sole discretion, establish procedures
by which a Participant may elect to defer payment of a Plan Award. The
Committee shall determine the terms and conditions of such deferral. Any
such deferral shall be subject to the following:
(a) Contingent Nature of Allocation. Every allocation under the
-------------------------------
Plan to a performance account shall be considered "contingent" and unfunded
until any forfeiture restrictions under the terms of the Plan Award expire
or lapse, until all conditions contained in the Plan Award are satisfied,
and until any elective deferral period expires. Such contingent
allocations shall be considered bookkeeping entries only, notwithstanding
the crediting of deemed "dividends" or "interest." Nothing contained
herein shall be construed as creating a trust or fiduciary relationship
between the Participant and the Corporation or the Committee.
(b) Participant's Rights to Awards. Until the Plan Award vests,
------------------------------
the elective deferral period expires, and any restrictions are lifted, the
related amounts held in the Participant's performance account cannot be
sold, conveyed, transferred, pledged, hypothecated, or assigned and any
attempt to do so by the Participant shall result in the immediate
forfeiture of such Plan Award. Until the Plan Award vests and becomes
payable, such account balances shall be the property of the Corporation.
The Participant's right to such account balances shall be subject to the
claims of the general creditors of the Corporation. Receipt of the Plan
Award is conditioned upon satisfactory compliance with the terms and
conditions of the such Award and other requirements of the Plan.
(c) Election to Defer Payment. If a Participant desires to defer
-------------------------
the normal receipt of Common Stock or cash due him under a Plan Award, he
must make an irrevocable election in a calendar year prior to the calendar
year or years in which he is to perform services that will entitle him to
the Plan Award. Such election shall be made in accordance with Rule 16b-3
to the extent required and shall provide a fixed date for the termination
of the deferral period. The Participant shall not be permitted to receive
his Plan Award prior to the end of the elected deferral period, except in
the event of: his death, Retirement, Disability or termination of
employment with the Corporation or any Parent or Subsidiary.
SECTION IX
ADJUSTMENT OF SHARES; MERGER
OR CONSOLIDATION OF THE CORPORATION
(a) Recapitalization, Etc. In the event there is any change in
---------------------
the Common Stock of the Corporation 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 any
Option, grant of Restricted Stock, Performance Share or Performance Unit
award, 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. Notwithstanding the foregoing, (i) each such
adjustment with respect to an Incentive Stock Option shall comply with the
rules of Section 424(a) of the Code and (ii) in no event shall any
adjustment be made which would render any Incentive Stock Option granted
hereunder to be other than an incentive stock option for purposes of
Section 422 of the Code.
(b) Merger or Consolidation of Corporation. Upon (i) the merger
--------------------------------------
or consolidation of the Corporation with or into another corporation, if
the agreement of merger or consolidation does not provide for (1) the
continuance of the Options, Stock Appreciation Rights and shares of
Restricted Stock granted hereunder or (2) the substitution of new Options,
Stock Appreciation Rights or shares of Restricted Stock for Options, Stock
Appreciation Rights and shares of Restricted Stock granted hereunder, or
for the assumption of such Options, Stock Appreciation Rights and shares of
Restricted Stock by the surviving corporation or (ii) the dissolution,
liquidation, or sale of substantially all the assets, of the Corporation,
(1) the holder of any such Option or Stock Appreciation Right theretofore
granted and still outstanding (and not otherwise expired) shall have the
right immediately prior to the effective date of such merger,
consolidation, dissolution, liquidation or sale of assets to exercise such
Option(s) or Stock Appreciation Right(s) in whole or in part without regard
to any installment provision that may have been made part of the terms and
conditions of such Option(s) or Stock Appreciation Right(s) and (2) all
restrictions regarding transferability and forfeiture on shares of
Restricted Stock shall be removed as of the effective date of such merger,
consolidation, dissolution, liquidation or sale of assets; provided that
any conditions precedent to the exercise of such Options or Stock
Appreciation Rights and the transfer of such shares of Restricted Stock,
other than the passage of time, have occurred. The Corporation, to the
extent practicable, shall give advance notice to affected Optionees and
holders of Stock Appreciation Rights or shares of Restricted Stock of such
merger, consolidation, dissolution, liquidation or sale of assets. All
such Options and Stock Appreciation Rights which are not so exercised shall
be forfeited as of the effective time of such merger, consolidation,
dissolution, liquidation or sale of assets.
(c) Effect of Merger or Consolidation. As of the effective date
---------------------------------
of the merger, consolidation, dissolution, liquidation or sale of
substantially all of the assets of the Corporation, no Participant shall
earn any additional Performance Share or Performance Unit or dividend or
interest equivalent under this Plan. Furthermore, if the value of any
Performance Share or Performance Unit cannot be determined as of such date
because such Plan Award is conditioned upon the future financial
performance of the Corporation, such Performance Share or Performance Unit
(including any applicable dividend or interest equivalents) shall be
canceled. Any Performance Share or Performance Unit payable after the date
of the merger, consolidation, dissolution, liquidation or sale of
substantially all of the assets of the Corporation shall be paid in cash
(unless the appropriate merger or consolidation agreement provides
otherwise) as of the date such Performance Share or Performance Unit
originally was to have been paid, or as of such earlier date as may be
determined by the Corporation or its successor.
SECTION X
MISCELLANEOUS PROVISIONS
(a) Administrative Procedures. The Committee may establish any
-------------------------
procedures determined by it to be appropriate in discharging its
responsibilities under the Plan. Subject to the provisions of Section XIII
hereof, all actions and decisions of the Committee shall be final.
(b) Assignment or Transfer. No grant or award of any Incentive
----------------------
Stock Option or any other "derivative security" (as defined by Rule
16a-l(c) promulgated under the Exchange Act) made under the Plan or any
rights or interests therein shall be assignable or transferable by a
Participant except by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order. During the lifetime of a
Participant Options and other Plan Awards granted hereunder shall be
exercisable only by the Participant, and Plan Awards earned hereunder shall
be payable only to the Participant. Performance Shares or Restricted Stock
or Performance Units may not be sold, assigned, transferred, redeemed,
pledged or otherwise encumbered during the restriction period, except as
provided in Section VIII(b) hereof.
(c) Investment Representation. In the case of Plan Awards paid in
-------------------------
shares of Common Stock or other securities, the Committee may require, as a
condition of receiving such securities, that the Participant furnish to the
Corporation such written representations and information as the Committee
deems appropriate to permit the Corporation, in light of the existence or
nonexistence of an effective registration statement under the Securities
Act to deliver such securities in compliance with the provisions of the
Securities Act.
(d) Withholding Taxes. The Corporation shall have the right to
-----------------
deduct from all cash payments hereunder any federal, state, local or
foreign taxes required by law to be withheld with respect to such payments.
In the case of the issuance or distribution of Common Stock or other
securities hereunder, the Corporation, as a condition of such issuance or
distribution, may require the payment (through withholding from the
Participant's salary, reduction of the number of shares of Common Stock or
other securities to be issued, or otherwise) of any such taxes. Subject to
the Rules promulgated under Section 16 of the Exchange Act (to the extent
applicable), and to the consent of the Committee, the Participant, may
satisfy the withholding obligations by paying to the Corporation a cash
amount equal to the amount required to be withheld or by tendering to the
Corporation a number of shares of Common Stock having a value equivalent to
such cash amount, or by use of any available procedure as described under
Section IV(c) hereof.
(e) Forfeiture. In order for a Participant or his legal
----------
representative to receive payments or benefits under the Plan, a
Participant must (i) be an active employee of the Corporation or of any
Parent or Subsidiary, (ii) have become Disabled or have terminated his
employment with the Corporation or with any Parent or Subsidiary due to
Retirement, (iii) have died while in the active employment of the
Corporation or of any Parent or Subsidiary, (iv) have voluntarily ceased to
be an employee of the Corporation or of any Parent or Subsidiary with the
written consent of the Committee or (v) suffered an involuntary termination
of employment by the Corporation or any Parent or Subsidiary for other than
Good Cause.
(f) Costs and Expenses. The costs and expenses of administering
------------------
the Plan shall be borne by the Corporation and shall not be charged against
any award nor to any employee receiving a Plan Award.
(g) Funding of Plan. Except in the case of awards of Restricted
---------------
Stock, the Plan shall be unfunded. The Corporation shall not be required
to segregate any of its assets to assure the payment of any Plan Award
under the Plan. Neither the Participants nor any other persons shall have
any interest in any fund or in any specific asset or assets of the
Corporation or any other entity by reason of any Plan Award, except to the
extent expressly provided hereunder. The interests of each Participant and
former Participant hereunder are unsecured and shall be subject to the
general creditors of the Corporation.
(h) Other Incentive Plans. The adoption of the Plan does not
---------------------
preclude the adoption by appropriate means of any other incentive plan for
employees.
(i) Plurals and Gender. Where appearing in the Plan, masculine
------------------
gender shall include the feminine and neuter genders, and the singular
shall include the plural, and vice versa, unless the context clearly
indicates a different meaning.
(j) Headings. The headings and sub-headings in this Plan are
--------
inserted for the convenience of reference only and are to be ignored in any
construction of the provisions hereof.
(k) Severability. In case any provision of this Plan shall be
------------
held illegal or void, such illegality or invalidity shall not affect the
remaining provisions of this Plan, but shall be fully severable, and the
Plan shall be construed and enforced as if said illegal or invalid
provisions had never been inserted herein.
(l) Payments Due Missing Persons. The Corporation shall make a
----------------------------
reasonable effort to locate all persons entitled to benefits under the
Plan; however, notwithstanding any provisions of this Plan to the contrary,
if, after a period of one (1) year from the date such benefits shall be
due, any such persons entitled to benefits have not been located, their
rights under the Plan shall stand suspended. Before this provision becomes
operative, the Corporation shall send a certified letter to all such
persons at their last known addresses advising them that their rights under
the Plan shall be suspended. Subject to all applicable state laws, any
such suspended amounts shall be held by the Corporation for a period of one
(1) additional year and thereafter such amounts shall be forfeited and
thereafter remain the property of the Corporation.
(m) Liability and Indemnification. (i) Neither the Corporation
-----------------------------
nor any Parent or Subsidiary shall be responsible in any way for any action
or omission of the Committee, or any other fiduciaries in the performance
of their duties and obligations as set forth in this Plan. Furthermore,
neither the Corporation nor any Parent or Subsidiary shall be responsible
for any act or omission of any of their agents, or with respect to reliance
upon advice of their counsel provided that the Corporation and/or the
appropriate Parent or Subsidiary relied in good faith upon the action of
such agent or the advice of such counsel.
(ii) Except for their own gross negligence or willful
misconduct regarding the performance of the duties specifically
assigned to them under or their willful breach of the terms of, this
Plan, the Corporation, each Parent and Subsidiary and the Committee
shall be held harmless by the Participants, former Participants,
beneficiaries and their representatives against liability or losses
occurring by reason of any act or omission. Neither the Corporation,
any Parent or Subsidiary, the Committee, nor any agents, employees,
officers, directors or shareholders of any of them, nor any other
person shall have any liability or responsibility with respect to this
Plan, except as expressly provided herein.
(n) Incapacity. If the Committee shall receive evidence
----------
satisfactory to it that a person entitled to receive payment of any Plan
Award is, at the time when such benefit becomes payable, a minor, or is
physically or mentally incompetent to receive such Plan Award and to give a
valid release thereof, and that another person or an institution is then
maintaining or has custody of such person and that no guardian, committee
or other representative of the estate of such person shall have been duly
appointed, the Committee may make payment of such Plan Award otherwise
payable to such person to such other person or institution, including a
custodian under a Uniform Gifts to Minors Act, or corresponding legislation
(who shall be an adult, a guardian of the minor or a trust company), and
the release by such other person or institution shall be a valid and
complete discharge for the payment of such Plan Award.
(o) Cooperation of Parties. All parties to this Plan and any
----------------------
person claiming any interest hereunder agree to perform any and all acts
and execute any and all documents and papers which are necessary or
desirable for carrying out this Plan or any of its provisions.
(p) Governing Law. All questions pertaining to the validity,
-------------
construction and administration of the Plan shall be determined in
accordance with the laws of the State of New York.
(q) Nonguarantee of Employment. Nothing contained in this Plan
--------------------------
shall be construed as a contract of employment between the Corporation (or
any Parent or Subsidiary), and any employee or Participant, as a right of
any employee or Participant to be continued in the employment of the
Corporation (or any Parent or Subsidiary), or as a limitation on the right
of the Corporation or any Parent or Subsidiary to discharge any of its
employees, with or without cause.
(r) Notices. Each notice relating to this Plan shall be in
-------
writing and delivered in person or by certified mail to the proper address.
All notices to the Corporation or the Committee shall be addressed to it at
500 Richardson Road South, Hope Hull, Alabama 36043, Attn: Vice President,
Finance and Chief Financial Officer. All notices to Participants, former
Participants, beneficiaries or other persons acting for or on behalf of
such persons shall be addressed to such person at the last address for such
person maintained in the Committee's records.
(s) Written Agreements. Each Plan Award shall be evidenced by a
------------------
signed written agreement between the Corporation and the Participant
containing the terms and conditions of the award.
SECTION XI
AMENDMENT OR TERMINATION OF PLAN
The Board of Directors of the Corporation shall have the right to
amend, suspend or terminate the Plan at any time, provided that no
amendment shall be made which shall increase the total number of shares of
the Common Stock of the Corporation which may be issued and sold pursuant
to Options or other Plan Awards, reduce the minimum exercise price in the
case of an Incentive Stock Option, or modify the provisions of the Plan
relating to eligibility with respect to Incentive Stock Options unless such
amendment is made by or with the approval of the stockholders (such
approval being granted within 12 months of the effective date of such
amendment). The Board of Directors of the Corporation shall be authorized
to amend the Plan and the Options granted thereunder (i) to maintain
qualification as "incentive stock options" within the meaning of Section
422 of the Code, if applicable or (ii) to comply with Rule 16b-3 (or any
successor rule) promulgated under the Exchange Act. Except as otherwise
provided herein, no amendment, suspension or termination of the Plan shall
alter or impair any Plan Awards previously granted under the Plan, without
the consent of the holder thereof.
SECTION XII
TERM OF PLAN
The Plan shall remain in effect until the earlier of April 11,
2005, or the tenth anniversary of the date the Plan was adopted by the
Board of Directors of the Corporation, unless sooner terminated by such
Board of Directors. No Plan Awards may be granted under the Plan
subsequent to the termination of the Plan.
SECTION XIII
CLAIMS PROCEDURES
(a) Denial. If any Participant, former Participant or beneficiary
------
is denied any vested benefit to which he is, or reasonably believes he is,
entitled under this Plan, either in total or in an amount less than the
full vested benefit to which he would normally be entitled, the Committee
shall advise such person in writing the specific reasons for the denial.
The Committee shall also furnish such person at the time with a written
notice containing (i) a specific reference to pertinent Plan provisions,
(ii) a description of any additional material or information necessary for
such person to perfect his claim, if possible, and an explanation of why
such material or information is needed and (iii) an explanation of the
Plan's claim review procedure.
(b) Written Request for Review. Within 60 days of receipt of the
--------------------------
information stated in subsection (a) above, such person shall, if he
desires further review, file a written request for reconsideration with the
Committee.
(c) Review of Document. So long as such person's request for
------------------
review is pending (including the 60 day period in subsection (b) above),
such person or his duly authorized representative may review pertinent Plan
documents and may submit issues and comments in writing to the Committee.
(d) Committee's Final and Binding Decision. A final and binding
--------------------------------------
decision shall be made by the Committee within 60 days of the filing by
such person of this request for reconsideration; provided, however, that if
-------- -------
the Committee, in its discretion, feels that a hearing with such person or
his representative is necessary or desirable, this period shall be
extended for an additional 60 days.
(e) Transmittal of Decision. The Committee's decision shall be
-----------------------
conveyed to such person in writing and shall include specific reasons for
the decision, be written in a manner calculated to be understood by such
person, and set forth the specific references to the pertinent Plan
provisions on which the decision is based.
(f) Limitation on Claims. Notwithstanding any provisions of this
--------------------
Plan to the contrary, no Participant (nor the estate or other beneficiary
of a Participant) shall be entitled to assert a claim against the
Corporation (or against any Parent or Subsidiary) more than three years
after the date the Participant (or his estate or other beneficiary)
initially is entitled to receive benefits hereunder.
Exhibit 4(a)(2)
OPTION NO. 95-NQO-
===========================================================================
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:_________
====================================================================
<PAGE>
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
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, $.01 par value (hereinafter referred
to as "Common Stock"), of the Company on favorable terms and thereby
increase his proprietary interest in the continued progress and success of
the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein set forth and other good and valuable consideration, the
Company and the Employee hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a
-------------------------------
determination by the Stock Option Committee of the Board of Directors of
the Company authorized to administer the Plan, made on [ ] (the
"Date of Grant") the Company, subject to the terms of the Plan and this
Agreement, hereby confirms that the Employee has been granted as a matter
of separate inducement and agreement, and in addition to and not in lieu of
salary or other compensation for services, the right to purchase
(hereinafter referred to as the "Option") an aggregate of [ ]
shares of Common Stock, subject to adjustment as provided in Section 8
hereof (such shares, as adjusted, shall hereinafter be referred to as the
"Shares"). The Option is not intended to qualify as an incentive stock
---
option under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code").
2. Purchase Price. The purchase price of shares of Common
--------------
Stock covered by the Option will be [$ ] per share, subject to
adjustment as provided in Section 8 hereof.
3. Exercise of Option. The Option shall be exercisable on the
------------------
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
--------------
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
-----------------------------
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
-------------------------------------
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
---------------------------------
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
-----------
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)
-----------------------------------------------
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
------------
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
----------------------------
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
-------------------
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
----------------------
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
---------------------
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
--------------------
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
-------
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
---------------------
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
------------
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
-------------
governed in accordance with the laws of the State of New York.
20. Employment. Nothing contained in this Agreement shall be
----------
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
-----------
capitalized terms shall have the same definitions as set forth under the
Plan.
22. Incorporation of Terms of Plan. This agreement shall be
------------------------------
interpreted under, and subject to, all of the terms and provisions of the
Plan, which are incorporated herein by reference.
<PAGE>
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
<PAGE>
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 $__________.
Exhibit 4(a)(3)
OPTION NO. 95-ISO-
===========================================================================
MILTOPE GROUP INC.
1995 STOCK OPTION AND PERFORMANCE AWARD PLAN
INCENTIVE STOCK OPTION
GRANTED TO
____________________________
OPTIONEE
_________________________ ____________________________
Number of Shares Price per Share (Fair Market Value
on Date of Grant)
DATE GRANTED:____________ EXPIRATION DATE:_____________
===========================================================================
<PAGE>
INCENTIVE STOCK OPTION AGREEMENT
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, $.01 par value (hereinafter referred
to as "Common Stock"), of the Company on favorable terms and thereby
increase his proprietary interest in the continued progress and success of
the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein set forth and other good and valuable consideration, the
Company and the Employee hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a
-------------------------------
determination by the Stock Option Committee of the Board of Directors of
the Company authorized to administer the Plan, made on [ ]
(the "Date of Grant") the Company, subject to the terms of the Plan and
this Agreement, hereby confirms that the Employee has been granted as a
matter of separate inducement and agreement, and in addition to and not in
lieu of salary or other compensation for services, the right to purchase
(hereinafter referred to as the "Option") an aggregate of [ ]
shares of Common Stock, subject to adjustment as provided in Section 9
hereof (such shares, as adjusted, shall hereinafter be referred to as the
"Shares"). The Option is intended to qualify as an incentive stock option
under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. Purchase Price. The purchase price of shares of Common
--------------
Stock covered by the Option will be [$ ] per share, being not less than
[100%] [110%] of the Fair Market Value of a share of Common Stock on the
Date of Grant, subject to adjustment as provided in Section 9 hereof.
3. Exercise of Option. The Option shall be exercisable on the
------------------
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 9 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 12 and 17 hereof.
4. Term of Option. The term of the Option shall be a period of
--------------
[no more than [ten (10)] [five (5)]] 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 12
hereof) upon purchase of such shares upon exercise of the Option.
5. Non-transferability of Option. The Option shall not be
-----------------------------
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
-------------------------------------
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 Sections 5 and 8 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
---------------------------------
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 Sections 5 and 8 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 Sections 5 and 8
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, 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.
8. Limitation on Exercisability. To the extent the aggregate
----------------------------
of the (a) Fair Market Value of Common Stock (determined as of the date of
this Agreement) subject to purchase under this Option and (b) the fair
market values (determined as of the appropriate date(s) of grant) of all
other shares of stock subject to incentive stock options granted to the
Employee by the Company or any Parent or Subsidiary, which are exercisable
for the first time by any individual during any calendar year, exceed(s)
one hundred thousand dollars ($100,000), such excess shares of stock shall
not be deemed to be purchased pursuant to incentive stock options. The
terms of the immediately preceding sentence shall be applied by taking
options into account in the order in which they are granted.
9. Adjustments. In the event there is any change in the Common
-----------
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; provided,
however, that no such adjustment shall be made so as to deem such
modification, extension or renewal of the Option as the issuance of a new
option under Section 424(h) of the Code, or so as to prevent the Company or
any other corporation or subsidiary thereof, if the Employee shall become
employed by such corporation by reason of the transaction in respect of
which such adjustment is made, from being a corporation issuing or assuming
the Option in a transaction to which Section 424(a) of the Code applies.
[10. Merger, Consolidation or Termination of Company. Subject to
-----------------------------------------------
the provisions of Section 8 hereof, upon (a) 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.]
11. Registration. The shares of Common Stock subject hereto and
------------
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 12 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.
12. Method of Exercise of Option. (a) Subject to the terms and
----------------------------
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 13 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 12 and the provisions of Section 13
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 12 shall be void and of no effect if all the
preceding provisions of this Section 12 and the provisions of Section 13
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.
13. Approval of Counsel. The exercise of the Option and the
-------------------
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 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.
14. Resale of Common Stock. (a) If so requested by the 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.
15. Reservation of Shares. The Company shall at all times
---------------------
during the term 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.
16. Limitation of Action. The Employee and the Company each
--------------------
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.
17. Notices. Each notice relating to this Agreement shall be in
-------
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.
18. Benefits of Agreement. This Agreement shall inure to the
---------------------
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.
19. Severability. In the event that any one or more provisions
------------
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.
20. Governing Law. This Agreement will be construed and
-------------
governed in accordance with the laws of the State of New York.
21. Disposition of Shares. By accepting this Agreement, the
---------------------
Employee agrees that in the event that he shall dispose (whether by sale,
exchange, gift, or any like transfer) of any shares of Common Stock of the
Company (to the extent such shares are deemed to be purchased pursuant to
an incentive stock option) acquired by him pursuant hereto within two years
of the date of grant of this Option or within one year after the
acquisition of such shares pursuant hereto, he will notify the secretary of
the Company no later than 15 days from the date of such disposition of the
date or dates and the number of shares disposed of by him and the
consideration received, if any, and, upon notification from the Company,
promptly forward to the secretary of the Company any amount requested by
the Company for the purpose of satisfying its liability, if any, to
withhold federal, state or local income or earnings tax or any other
applicable tax or assessment (plus interest or penalties thereon, if any,
caused by delay in making such payment) incurred by reason of such
disposition.
[22. Acknowledgement of Employee. The Employee represents and
---------------------------
agrees that as of the date of grant of this Option, he does not own (within
the meaning of Section 422(b)(6) of the Code) shares possessing more than
10% of the total combined voting power of all classes of shares of the
Company or of any Parent or Subsidiary].
23. Employment. Nothing contained in this Agreement shall be
----------
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.
24. Definitions. Unless otherwise defined herein, all
-----------
capitalized terms shall have the same definitions as set forth under the
Plan.
25. Incorporation of Terms of Plan. This agreement shall be
------------------------------
interpreted under, and subject to, all of the terms and provisions of the
Plan, which are incorporated herein by reference.
<PAGE>
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
<PAGE>
EXHIBIT A
INCENTIVE STOCK OPTION EXERCISE FORM
[DATE]
[Company Name]
[Address]
[City, State and Zip Code]
Attention: Secretary
Dear Sirs:
Pursuant to the provisions of the Incentive Stock Option
Agreement dated [ ], whereby you have granted to me an incentive 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 of Common Stock 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: State
$______ and Local $________. No withholding will be required in
states and localities which follow Federal tax law.
** $____________ 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: State $_________
and Local $_________. No withholding will be required in states and
localities which follow Federal tax law.
EXHIBIT 5
REID & PRIEST LLP
A New York Registered Limited Liability Partnership
40 West 57th Street
New York, NY 10019-4097
New York, New York
December 21, 1995
Miltope Group Inc.
500 Richardson Road South
Hope Hull, Alalbama 36043
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as counsel to Miltope Group Inc., a
Delaware corporation (the "Registrant"), in connection with
the preparation and filing with the Securities and Exchange
Commission (the "Commission") of a Registration Statement
on Form S-8 (the "Registration Statement"), with respect to
the registration under the Securities Act of 1933, as
amended (the "Act"), of 500,000 shares of the Registrant's
common stock, $.01 par value per share (the "Shares"),
issuable upon the exercise of options (the "Options")
granted or to be granted pursuant to the Registrant's 1995
Stock Option and Performance Award Plan (the "Plan").
For purposes of this opinion we have examined the
Registration Statement, the Certificate of Incorporation,
as amended, and the By-Laws, as amended, of the Registrant,
the Plan and such other documents, records, agreements,
proceedings and legal matters as we have deemed necessary
to examine. With respect to any documents, records or
agreements (collectively, the "Documents") that we have
examined, we have assumed the genuineness of all signatures
on, and the authenticity of, all Documents submitted to us
as originals, and the conformity to the originals of all
Documents submitted to us as certified or photostatic
copies.
<PAGE>
Based upon the foregoing and subject to the
qualifications stated herein we are of the opinion that:
1. The Registrant is a corporation duly
incorporated, validly existing and in good standing under
the laws of the State of Delaware.
2. The Shares included in the Registration
Statement that are to be issued upon the exercise of the
Options granted or to be granted pursuant to the Plan will
be duly authorized and validly issued, and fully paid and
non-assessable when the Options shall have been properly
exercised and the exercise price shall have been paid for
the Shares in accordance with the terms of the Plan.
Leonard Gubar, a member of this firm, is the
Secretary of the Registrant.
We are members of the Bar of the State of New
York and do not hold ourselves out as experts concerning,
or qualified to render opinions with respect to, any laws
other than the laws of the State of New York, the federal
laws of the United States of America and the General
Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5 to the Registration
Statement. In giving the foregoing consent, we do not
thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act or the rules
and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Reid & Priest LLP
EXHIBIT 23(a)
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this
Registration Statement of Miltope Group Inc. on Form S-8 of our
report dated March 23, 1995, appearing in the Annual Report on
Form 10-K of Miltope Group Inc. for the year ended
December 31, 1994.
/s/ Deloitte & Touche LLP
Birmingham, Alabama
December 20, 1995
EXHIBIT 99
CALCULATION OF REGISTRATION FEE
PURSUANT TO RULE 457(h)
Proposed Maximum Aggregate Offering Price
$ 3.375 x 20,000 = $ 67,500
$ 3.25 x 60,000 = 195,000
$ 3.75 x 10,000 = 37,500
$ 3.50 x 5,000 = 17,500
$ 2.875 x 20,000 = 57,500
$ 2.875 x 10,000 = 28,750
------- -------
125,000
Maximum Aggregate Offering Price $403,750
--------
1/29th of 1% x 1/2900
--------
Registration Fee $139.22
=======
Proposed Maximum Offering Price
Per Share
$403,750 divided by 125,000 shares = $3.23 per share
CALCULATION OF REGISTRATION FEE
PURUSANT TO RULE 457(c)
Maximum Aggregate Offering Price
[Average of the high and low prices on The Nasdaq Stock Market's
National Market on December 18, 1995] $2.875 x 375,000 shares =
$1,078,125
Registration Fee -1/29 of 1%
1/2900 x $1,078,125 = $371.77
Proposed Maximum Offering Price Per Share
$1,078,125 divided by 375,000 shares = $2.875 per share
