As filed with the Securities and Exchange Commission Registration No. 33 -
on March 18, 1998
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
1998 Directors' Warrants
SYMBOL TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2308681
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
One Symbol Plaza
Holtsville, New York 11742-1300
(516) 738-2400
(Address, including zip code and telephone
number, including area code, of
registrant's principal executive offices)
Dr. Jerome Swartz Leonard H. Goldner, Esq.
Chairman of the Board and Chief Senior Vice President and
Executive Officer General Counsel
Symbol Technologies, Inc. Symbol Technologies, Inc.
One Symbol Plaza One Symbol Plaza
Holtsville, New York 11742-1300 Holtsville, New York 11742-1300
(516) 738-2400 (516) 738-2400
_______________________________________________________________________________
(Name, address, including zip code, and telephone
number, including area code, of agents for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTIONS>
_______________________________________________________________________________
Proposed
Title of Each Proposed maximum
Class of maximum aggregate Amount of
Securities to Amount to be offering price offering registration
be registered Registered* per share price fee
<S> <C> <C> <C> <C>
1998 Directors 50,000 $37.3125 $1,865,625 $565
Warrants
____________________________________________________________________________
* There are also being registered such additional indeterminate number of
shares of the Registrant's Common Stock as may be required to cover
possible adjustments under the terms of each warrant.
</FN>
</TABLE>
-1-
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing information specified by Part I of this
Form S-8 Registration Statement (the "Registration Statement") will be or have
been sent or given to holders of the warrants listed on the cover of the
Registration Statement as specified in Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "1933 Act"). Such document(s) are not being filed
with the Commission but constitute (along with the documents incorporated by
reference into the Registration Statement pursuant to Item 3 of Part II
hereof), a prospectus that meets the requirements of Section 10(a) of the 1933
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission are incorporated
herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended December
31, 1997 which is the Company's latest Annual Report on Form 10-K filed
pursuant to Section 13(a) of 15(d) of the Securities and Exchange Act of 1934
(the "Exchange Act") which contains certified financial statements for the
Company's latest fiscal year for which a Form 10-K was required to have been
filed.
(2) The description of the Company's Common Stock which is
contained in a registration statement on Form 8-B dated November 23, 1987 filed
under Section 12 of the Exchange Act, including any amendment or reports filed
for the purpose of updating such information.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering shall be deemed to be incorporated by reference in this Prospectus and
to be a part hereof from the time of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or so superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
-2-
Item 4. Not applicable
Item 5. Interests of Named Experts and Counsel
Certain legal matters related to this offering have been passed
upon for the Company by Leonard H. Goldner, Senior Vice President, General
Counsel and Secretary of the Company. As of March 1, 1998, Mr. Goldner owned
in the aggregate 59,710 shares of Common Stock. In addition, Mr. Goldner and a
trust for the benefit of his wife and children own options to purchase an
aggregate of 234,550 shares of Common Stock. Mr. Goldner disclaims beneficial
ownership of the option to purchase 50,000 shares of Common Stock held by this
trust.
Item 6. Indemnification of Directors and Officers
The indemnification of officers and directors of the Company is
governed by Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL"). Among other matters, the DGCL permits indemnification of a
director, officer, employee or agent in civil, criminal, administrative or
investigative actions, suits or proceedings (other than any action by or in the
right of the corporation) to which such person is a party or is threatened to
be made a party by reason of the fact of such relationship with the corporation
or the fact that such person is or was serving in a similar capacity with
another entity at the request of the corporation against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. Indemnification in a
suit by or in the right of the corporation is permitted if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, but no indemnification may be made in
such suit to any person adjudged to be liable to the corporation unless and
only to the extent that the Delaware Court of Chancery or the court in which
the action was brought determines that, despite the adjudication of liability,
such person is under all circumstances, fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper. Under the
DGCL, to the extent that a director, officer, employee or agent is successful,
on the merits or otherwise, in the defense of any action, suit or proceeding or
any claim, issue or matter therein (whether or not the suit is brought by or in
the right of the corporation), he shall be indemnified against expenses
(including attorney's fees) actually and reasonably incurred by him. In all
cases in which indemnification is permitted (unless ordered by a court), it may
be made by the corporation only as authorized in the specific case upon a
determination that the applicable standard of conduct has been met by the party
to be indemnified. The determination must be made by a majority vote of a
quorum consisting of the directors who were not parties to the action or, if
such a quorum is not obtainable, or even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or by the stockholders. The statute authorizes the corporation to pay
-3-
expenses incurred by an officer or director in advance of a final disposition
of a proceeding upon receipt of an undertaking, by or on behalf of the person
to whom the advance will be made, to repay the advance if it shall ultimately
be determined that he was not entitled to indemnification.
The DGCL provides that indemnification and advances of expenses
permitted thereunder are not to be exclusive of any rights to which those
seeking indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors, or
otherwise. The Company's by-laws provide that the Company shall indemnify its
officers and directors to the fullest extent permitted by law. Such by-law
provisions are intended to be broader than the statutory indemnification
provided in the DGCL. However, the extent to which such broader
indemnification may be permissible under Delaware law has not been established.
The DGCL also authorizes a corporation to purchase and maintain
liability insurance on behalf of its directors, officers, employees and agents
regardless of whether the corporation would have the statutory power to
indemnify such persons against the liabilities insured and the Company
maintains such insurance.
The Certificate of Incorporation of the Company provides that no
director of the Company shall be personally liable to the Company or its
shareholders for monetary damages for breach of fiduciary duty as director
except for liability (i) for any breach of the director's duty of liability to
the Company or its shareholders, (ii) for acts of omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
for paying a dividend or approving a stock repurchase in violation of Section
174 of the DGCL or (iv) for any transaction from which the director derived an
improper personal benefit.
The Company has agreements with all directors and executive
officers pursuant to which they are indemnified to the maximum extent allowable
by Delaware law.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant pursuant to the foregoing provisions, the registrant
has been informed 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.
Item 7. Not Applicable
-4-
Item 8. Exhibits
4.1 Form of 1998 Directors Warrant Agreement
5 Opinion and Consent of Leonard H. Goldner
23.1 Consent of Deloitte & Touche
23.2 Consent of Leonard H. Goldner
(included in Exhibit 5)
24 Power of Attorney of Directors and certain officers
of the Company (see page 8)
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
1933 Act;
(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,
represents 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) (Section 230.424(b) of this chapter) 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)(1)(ii) do not apply if the
registration statement is on Form S-3 (Section 239.13 of this chapter) or Form
S-8 (Section 239.16b of this chapter) and, the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports
-5-
filed by the registrant pursuant to section 13 or section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
1933 Act, each such post-effective 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 1933 Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
1933 Act 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 Commission such indemnification is
against public policy as expressed in the 1933 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 1933 Act and will be governed by the
final adjudication of such issue.
-6-
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dr. Jerome Swartz, Tomo Razmilovic and
Leonard H. Goldner, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof and the registrant hereby
confers like authority on its behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Township of Holtsville, State of New York, on this 12th
day of March, 1998.
SYMBOL TECHNOLOGIES, INC.
By s/Jerome Swartz
Jerome Swartz
Chairman of the Board
-7-
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Chairman of the
Board and Director
s/Jerome Swartz (Principal Executive Officer) February 27, 1998
Jerome Swartz
s/Raymond R. Martino Director February 27, 1998
Raymond R. Martino
s/Marvey P. Mallement Director February 27, 1998
Harvey P. Mallement
s/Frederic P. Heiman Director February 27, 1998
Frederic P. Heiman
s/Saul P. Steinberg Director February 27, 1998
Saul P. Steinberg
s/Lowell C. Freiberg Director February 27, 1998
Lowell C. Freiberg
s/George Bugliarello Director February 27, 1998
George Bugliarello
s/Charles Wang Director February 27, 1998
Charles Wang
s/Kenneth V. Jaeggi Senior Vice President February 27, 1998
Kenneth V. Jaeggi Finance (Chief Financial Officer)
s/Brian T. Burke Senior Vice President, February 27, 1998
Brian T. Burke Controller and Chief Accounting
Officer
</TABLE>
-8-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________________________________________
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________________
SYMBOL TECHNOLOGIES,INC.
-9-
EXHIBIT INDEX
Sequentially
Numbered
Exhibit Page
4.1 Form of 1998 Directors' Warrant Agreement 12
5 Opinion and Consent of Leonard H. Goldner 17
23.1 Consent of Deloitte & Touche 20
23.2 Consent of Leonard H. Goldner
(included in Exhibit 5)
24 Power of Attorney of Directors and certain officers
of the Company (see page 8 of Form S-8)
-10-
EXHIBIT 4.1
-11-
SYMBOL TECHNOLOGIES, INC.
1998 DIRECTORS' WARRANT AGREEMENT
10,000 $37.3125
Number of Shares of Common Exercise Price
Stock Subject to Warrant Per Share
January 5, 1998
Date of Grant
1. Symbol Technologies, Inc. (hereinafter called the "Company") hereby
grants you, as of the date of grant specified above (hereinafter the
"Date of Grant"), a warrant to purchase the number of shares of common
stock (par value $.01 per share) of the Company specified above (which
number of shares may be adjusted pursuant to Paragraph 5 below) at the
price per share specified above, which is the closing price of the
common stock of the Company on the New York Stock Exchange on the Date
of Grant. Such shares shall be made available solely from shares of
common stock reacquired and held in the Company's treasury.
2. Subject to the provisions of Paragraph 3 below, you may exercise this
Warrant as follows:
No part of this Warrant may be exercised prior to December 31, 1998.
Subject to Paragragh 3, this Warrant may be exercisable with respect to
25% of the total number of shares originally covered thereby on and
after January 1, 1999 and such percentage shall increase by 25% on each
of the next three consecutive anniversary dates of that date.
Accordingly, on January 1, 2002, the Warrant may be exercised in its
entirety. This Warrant may not be exercised for a fraction of a share
of common stock of the Company. Delivery of any written noticed of
exercise of this Warrant shall constitute an irrevocable election to
exercise the Warrant to the extent indicated in said notice.
3. This Warrant may not be exercised by you unless all of the following
conditions are met:
(a) Counsel for the Company must be satisfied at the time of exercise
that the issuance of shares upon exercise will be in compliance
with applicable federal, state, local and foreign securities laws,
securities exchange and other applicable laws and requirements.
-12-
(b) At the time of exercise the full purchase price for the shares
being acquired hereunder must be paid to the Company and such
amount as required by Paragraph 6 below, by (i) paying in United
States dollars by cash or check, (ii) tendering shares of common
stock of the Company owned by you for at least six months which
have an aggregate fair market value equal to the full purchase
price for the shares being acquired (the closing price of a share
of common stock of the Company on the New York Stock Exchange) on
the date of exercise, (iii) by delivery to the Company (a)
irrevocable instructions to deliver the stock certificate
representing the shares being acquired directly to a broker, and
(b) instructions to the broker to sell such shares and promptly
deliver to the Company the portion of the sales price equal to the
exercise price, or (iv) a combination of these methods of payment;
and
(c) You must, at all times during the period beginning with the Date
of Grant and ending on the date of such exercise, have been a
Director of the Company, except that if you cease to be such a
Director for reasons other than death while holding this Warrant,
and this Warrant has not expired and has not been fully exercised,
you may, at any time within ninety (90) days of the date of such
cessation (but in no event after the expiration of ten years from
the Date of Grant), with due regard to the provisions of Paragraph
2 above, exercise this Warrant with respect to any of the total
number of shares covered hereby as to which you could have
exercised this Warrant on the date you ceased to be a Director.
4. (a) This Warrant is not transferable by you otherwise than by
will or the laws of descent and distribution and is exercisable
during your lifetime only by you. If, at the time of your death,
this Warrant has not been fully exercised, your executors,
administrators, heirs or distributees, as the case may be, may, at
any time within one year after the date of your death (but in no
event after the expiration of ten years from the Date of Grant),
with due regard to the provisions of Paragraph 2 above, exercise
this Warrant with respect to the number of shares as to which you
could have exercised this Warrant at the time of your death.
(b) A warrant holder shall have no rights as a shareholder with
respect to any shares of common stock issuable pursuant to the
Warrant until receipt by the Company of payment referred to in
Paragraph 3 hereof. Except as provided in Paragraph 5, no
adjustment shall be made for dividends, distributions or other
rights (whether ordinary or extraordinary, and whether in cash,
securities or other property) for which the record date is prior
-13-
(c) to the date of receipt of such payment. Nothing contained herein
shall be construed as giving any warrant holder any right to be
retained in the services of the Company or to continue to serve as
a Director of the Company.
5. In the event that the outstanding common stock of the Company shall be
changed by reason of any stock split, stock dividend, recapitalization,
merger, consolidation, reorganization, combination or exchange of shares
or other similar event occurring after the Date of Grant and prior to
its exercise in full, the number and kind of shares for which this
Warrant may then be exercised and the exercise price per share shall be
proportionately and appropriately adjusted automatically so as to
reflect such change. In computing any adjustment provided herein, any
fractional shares shall be eliminated.
6. It shall be a condition to the obligation of the Company to issue shares
of common stock of the Company upon exercise of this Warrant that you
(or any beneficiary or person entitled to act under Paragraph 4 above):
(a) Pay to the Company, upon its demand, such amount as may be
requested by the Company for the purpose of satisfying any
liability to withhold federal, state, local or foreign income or
other taxes incurred by reason of the exercise of the Warrant or
the transfer of shares thereupon;
(b) Execute such forms as the Board of Directors of the Company shall
prescribe for the purpose of evidencing the exercise of the
Warrant in whole or in part, as the case may be; and
(c) Provide the Company with any forms, documents or other information
reasonably required by the Company in connection with the grant
and/or exercise.
If the foregoing requirements of this Paragraph 6 are not satisfied, the
Company may refuse to issue shares of common stock upon exercise of the
Warrant and all rights hereunder shall become null and void.
7. This Agreement shall be governed and construed in accordance with the
substantive law, but not the choice of law rules, of the State of New
York. The Board of Directors shall have the power to construe this
Agreement and to determine all questions arising hereunder. Any
decision of the Board shall be final and conclusive.
-14-
Please confirm your acceptance of this grant by executing the attached
copy of this Agreement and returning it to Leonard H. Goldner, Senior
Vice President, General Counsel and Secretary of the Company, One Symbol
Plaza, Holtsville, NY 11742-1300. Such action will constitute your
agreement to abide by all of the provisions of the grant and the Warrant
specified herein.
SYMBOL TECHNOLOGIES, INC.
By: _________________________ _________________________
Director
-15-
EXHIBIT 5
-16-
March 17, 1998
Symbol Technologies, Inc.
116 Wilbur Place
Bohemia, NY 11716
Dear Sirs:
Symbol Technologies, Inc., a Delaware corporation (the "Company"),
intends to transmit for filing with the Securities and Exchange Commission a
registration statement under the Securities Act of 1933, as amended on Form
S-8 (the "Registration Statement") which relates to an aggregate of 50,000
shares (the "Shares"), of the Company's Common Stock, par value $.01 per
share, which are being offered pursuant to the Company's 1998 Directors'
Warrant Agreements (the "1998 Warrants"). This opinion is an exhibit to the
Registration Statement.
I am Senior Vice President, General Counsel and Secretary of the
Company. I have acted as counsel to the Company and in such capacity have
participated in various corporate and other proceedings taken by or on behalf
of the Company in connection with the 1998 Warrants and the proposed offer and
sale of the Shares referred to above as contemplated by the Registration
Statement. I have taken part in the preparation or examined copies (in each
case signed, certified or otherwise proven to my satisfaction) of the
Company's Certificate of Incorporation, its By-Laws as presently in effect,
minutes and other instruments evidencing actions taken by its directors and
shareholders, the Registration Statement and exhibits thereto and such other
documents and instruments relating to the Company and the proposed offering as
I have deemed necessary under the circumstances. Insofar as this opinion
relates to securities to be issued in the future, I have assumed that all
applicable laws, rules and regulations in effect at that time of such issuance
are the same as such laws, rules and regulations in effect as of the date
hereof.
I note that I am a member of the Bar of the State of New York and
that I am not admitted to the Bar of the State of Delaware. To the extent
that the opinion expressed herein involves the law of Delaware, my opinion is
based solely upon my reading of the Delaware General Corporation Law and my
review of the Company's certified Certificate of Incorporation.
-17-
Symbol Technologies, Inc.
March 17, 1998
Page -2-
In connection with my rendering of this opinion, I wish to note that, as
of March 1, 1998, I own in the aggregate of 59,710 shares of the Common Stock
of the Company. In addition, I and a trust for the benefit of my wife and
children own options to purchase an aggregate of 234,550 shares of Common
Stock. I disclaim beneficial ownership of the option to purchase 50,000
shares of Common Stock held by the trust.
Based on the foregoing, it is my opinion that:
1. The Company has been duly incorporated under the laws of the
State of Delaware and has an authorized capital stock consisting
of 100,000,000 shares of Common Stock, par value $.01 per share
and 10,000,000 shares of Preferred Stock, par value $1.00 per
share.
2. Subject to the effectiveness of the Registration Statement
and compliance with applicable state securities laws, Shares
issued upon the valid exercise of the 1998 Warrants will be duly
authorized, legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and as an exhibit to any filing made by the Company
under the securities or "Blue Sky" laws of any state.
Very truly yours,
/s/Leonard H. Goldner
Leonard H. Goldner
Senior Vice President
and General Counsel
LHG:mk
-18-
EXHIBIT 23.1
-19-
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Symbol Technologies, Inc. and subsidiaries on Form S-8 of our report dated
February 9, 1998 appearing in the Annual Report on Form 10-K of Symbol
Technologies, Inc. and subsidiaries for the year ended December 31, 1997.
/s/Deloitte & Touche LLP
Jericho, New York
March 16, 1998
-20-
EXHIBIT 23.2
(Included in Exhibit 5)
-21-
EXHIBIT 24
(See Page 8 of Form S-8)
-22-
regist\S8WARRANTS.DOC
regist\S8WARRANTS.DOC
