As filed with the Securities and Exchange Commission Registration No. 33 -
on May 14, 1999
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
1990 Non-Executive Stock Option Plan
and
1997 Employee Stock Option Plan
and
1999 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, Holtsville,
New York 11742-1300 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
_______________________________________________________________________________
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
1990 Non-
Executive Stock
Option Plan
Common Stock 2,000,000 $53.75 $107,500.00 $29,885.00
1997 Employee
Stock Purchase
Plan
Common Stock 4,500,000 $53.75 $241,875,000 $67,241.25
1999 Directors'
Warrants
Common Stock 50,000 $53.75 $ 2,687,500 $747.13
______________________________________________________________________________
TOTAL $97,873.38
* There are also being registered (1) such additional indeterminate number
of shares of the Registrant's Common Stock as may be required to cover
possible adjustments under the plan; and (2) such indeterminable amount
of interests in the Plan that are deemed to be separate securities under
the Securities Act of 1933.
** Estimated solely for the purpose of calculation of the registration fee,
on the basis of the average high and low prices of the Registrant's
Common Stock as quoted on the New York Stock Exchange on a date within
five (5) days of filing hereof.
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 participants in the plan listed on the cover of the
Registration Statement (the "Plan") 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, 1998 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) Quarterly Report on Form 10Q for the quarterly period ending
March 31, 1999, filed pursuant to the Exchange Act.
(3) 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.
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 May 10, 1999, Mr. Goldner, owned
in the aggregate 116,972 shares of Common Stock. In addition, Mr. Goldner owns
options to purchase an aggregate of 249,375 shares of Common Stock (including
options to purchase 25,000 shares held by a Trust of which Mr. Goldner is a Co-
Trustee and a beneficiary). Mr. Goldner's wife owns 3,000 shares of the Common
Stock of the Company and is co-trustee of a trust which owns 75,000 shares of
Common Stock. Mr. Goldner disclaims beneficial ownership of any shares held by
his wife or 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
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
Item 8. Exhibits
4.1 1990 Non-Executive Stock Option Plan, as amended
4.2 1997 Employee Stock Option Plan, as amended
4.3 1999 Directors' Warrant Agreement
5(a) Opinion and Consent of Leonard H. Goldner
5(b) The Company undertakes to submit the Plan, and any
amendments, to the Internal Revenue Service in a timely
manner for a determination letter as to its qualified
status, and the Company will make any changes required
by the IRS in order to qualify the Plan.
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) (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 (239.13 of this chapter) or Form S-8
(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
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.
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 10th
day of May, 1999.
SYMBOL TECHNOLOGIES, INC.
By /s/ Jerome Swartz
Jerome Swartz
Chairman of the Board
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.
Signature Title Date
Chairman of the
Board and Director
/s/ Jerome Swartz (Principal Executive Officer) May 10, 1999
Jerome Swartz
/s/ Raymond R. Martino Director May 10, 1999
Raymond R. Martino
/s/ Harvey P. Mallement Director May 10, 1999
Harvey P. Mallement
/s/ Frederic P. Heiman Director May 10, 1999
Frederic P. Heiman
/s/ Saul P. Steinberg Director May 10, 1999
Saul P. Steinberg
/s/ Lowell C. Freiberg Director May 10, 1999
Lowell C. Freiberg
/s/ George Bugliarello Director May 10, 1999
George Bugliarello
/s/ Charles B. Wang Director May 10,1999
Charles B. Wang
/s/ Tomo Razmilovic President, Chief Operating Officer May 10, 1999
Tomo Razmilovic and Director
/s/ Kenneth V. Jaeggi Senior Vice President May 10, 1999
Kenneth V. Jaeggi Finance (Chief Financial Officer)
/s/ Brian T. Burke Senior Vice President and
Brian T. Burke Controller (Chief Accounting May 10, 1999
Officer)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________________________________
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________________
SYMBOL TECHNOLOGIES,INC.
EXHIBIT INDEX
Sequentially
Numbered
Exhibit Page
4.1 1990 Non-Executive Stock Option Plan, as amended
4.2 1997 Employee Stock Option Plan, as amended
4.3 1999 Directors' Warrant Agreement
5(a) Opinion and Consent of Leonard H. Goldner
5(b) The Company undertakes to submit the Plan, and
any amendments, to the Internal Revenue Service
in a timely manner for a determintion letter as
to its qualified status, and the Company will
make any changes required by the IRS in order
to qualify the Plan.
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 of Form S-8)
EXHIBIT 4.1
1990 NON-EXECUTIVE STOCK OPTION PLAN, as amended as
of May 10, 1999
SYMBOL TECHNOLOGIES, INC.
1990 NON-EXECUTIVE STOCK OPTION PLAN
1. Purpose. The 1990 Non-Executive Stock
Option Plan (the "Plan") of Symbol Technologies,
Inc. (the "Company"), a Delaware corporation, is
designed to aid the Company and its subsidiaries in
retaining and attracting personnel of exceptional
ability by enabling key employees to purchase a
proprietary interest in the Company, thereby
stimulating in such individuals an increased desire
to render greater services which will contribute to
the continued growth and success of the Company and
its subsidiaries. Options granted under the Plan are
not intended to satisfy the requirements for
classification as "Incentive Stock Options" codified
in Section 422A of the Internal Revenue Code of
1986, as amended (the "Code").
2. Amount and Source of Stock. The total
number of shares of Common Stock, par value $.01 per
share, of the Company which may be the subject of
options granted pursuant to the Plan shall not
exceed 8,000,000 of the Company's Common Stock, par
value $.01 (the "Shares"), subject to adjustment as
provided in paragraph 10, which shall include any
shares subject to options granted prior to February
25, 1991 under the 1988 Stock Option Plan for the
Employees of MSI Data Corporation and the 1988 Stock
Option Plan for the Employees of Vectran
Corporation. Such Shares may be reserved or made
available from the Company's authorized and unissued
Shares or from Shares reacquired and held in the
Company's treasury. In the event that any option
granted hereunder shall terminate prior to its
exercise in full for any reason, then the Shares
subject to such option shall be added to the Shares
otherwise available for issuance pursuant to the
exercise of options under the Plan.
3. Administration of the Plan. If all of
the members of the Board of Directors of the Company
(the "Board") are "disinterested persons" as that
term is defined in Rule 16b-3(c) (2) (or any
successor provision) promulgated under the
Securities and Exchange Act of 1934, as amended (the
"Exchange Act") ("Disinterested Persons"), then the
Plan shall be administered by the Board or, if so
designated by resolution of the Board by a committee
of the Board comprised of two or more members of the
Board, selected by the Board, all of which members
shall be "Disinterested Persons" (the "Committee").
If all of the members of the Board are not
"Disinterested Persons"' then the Board shall
designate such a Committee to administer the Plan.
(The body which is administering the Plan pursuant
to this paragraph shall at times be referred to
herein as the "Administrative Body.")
The Administrative Body shall have full
authority to interpret the Plan, to establish and
amend rules and regulations relating to it, to
determine the key employees to whom options may be
granted under the Plan, to select from among the
eligible individuals those to whom options are to be
granted, to determine the terms and provisions of
the respective option agreements (which need not be
identical) and to make all other determinations
necessary or advisable for the administration of the
Plan. The date on which the Administrative Body
adopts resolutions granting an option to a specified
individual shall constitute the date of grant of
such option (the "Date of Grant"); provided,
however, that if the grant of an option is made
subject to the occurrence of a subsequent event
(such as, for example, the commencement of
employment), the date on which such subsequent event
occurs shall be the Date of Grant. The adoption of
any such resolution by the majority of the members
of the Administrative Body shall complete the
necessary corporate action constituting the grant of
said option and an offer of Shares for sale to said
individual under the Plan.
4. Eligibility. All key employees of the
Company or any subsidiary of the Company (other than
employees who are directors or officers of the
Company including, after April 30, 1991, any person
who is an "officer" of the Company as said term is
defined in Rule 16a-1(f) (or any successor
provision) promulgated pursuant to the Exchange
Act), as determined by the Administrative Body,
shall be eligible to receive options hereunder. For
purposes of the Plan, a subsidiary shall mean any
corporation of which the Company owns or controls,
directly or indirectly, fifty percent (50%) or more
of the outstanding shares of stock normally entitled
to vote for the election of directors including
voting securities issuable upon conversion of
another security which is, or may have been,
convertible into such voting securities or voting
securities issuable upon the exercise of any
warrant, option or other similar right and any
partnership of which the Company or a corporate
subsidiary is a general partner. From time to time
the Administrative Body shall, in its sole
discretion, within the applicable limits of the
Plan, select from among the eligible individuals
those persons to whom options shall be granted under
the Plan, the number of Shares subject to each
option, and the exercise price, terms and conditions
of any options to be granted hereunder.
5. Option Price. The exercise price for the
Shares purchasable under any option granted pursuant
to the Plan shall not be less than 100% of the fair
market value per share of the Shares subject to
option under the Plan at the Date of Grant, solely
as determined by the Administrative Body in good
faith. The exercise price for options granted
pursuant to the Plan shall be subject to adjustment
as provided in paragraph 10. For purposes of the
Plan, the "fair market value per share" of the
Shares on a given date shall be: (i) if the Shares
are listed on a registered securities exchange or
traded on the NASDAQ National Market System, the
closing price per share of the Shares on such date
(or, if there was no trading in the Shares on such
date, on the next preceding day on which there was
trading); (ii) if the Shares are not listed on a
registered securities exchange or traded on the
NASDAQ National Market System but the bid and asked
prices per share for the Shares are provided by
NASDAQ, the National Quotation Bureau Incorporated
or any similar organization, the average of the
closing bid and asked price per share of the Shares
on such date (or, if there was no trading in the
Shares on such date, on the next preceding day on
which there was trading) as provided by such
organization; and (iii) if the Shares are not listed
on a registered securities exchange or traded on the
NASDAQ National Market System and the bid and asked
prices per share of the Shares are not provided by
NASDAQ, the National Quotation Bureau Incorporated
or any similar organization, as determined by the
Administrative Body in good faith.
6. Term of Option.
(a) Subject to the provisions of the Plan, the
Administrative Body shall have absolute discretion
in determining the period during which, the rate at
which and the terms and conditions upon which any
option granted hereunder may be exercised, and
whether any option exercisable in installments is to
be exercisable on a cumulative or non-cumulative
basis; provided, however, that no option granted
hereunder shall be exercisable for a period
exceeding ten (10) years from the Date of Grant.
(b) The grant of options by the Administrative
Body shall be effective as of the date on which the
Administrative Body shall authorize the option;
provided, however, that no option granted hereunder
shall be exercisable unless and until the holder
shall enter into an individual option agreement with
the Company that shall set forth the terms and
conditions of such option. Each such agreement
shall expressly incorporate by reference the
provisions of this Plan (a copy of which shall be
made available for inspection by the optionee during
normal business hours at the principal office of the
Company), and shall state that in the event of any
inconsistency between the provisions hereof and the
provisions of such agreement, the provisions of this
Plan shall govern.
7. Exercise of Options. An option shall be
exercised when written notice of such exercise,
signed by the person entitled to exercise the
option, has been delivered or transmitted by
registered or certified mail to the Secretary of the
Company at its then principal office. Said notice
shall specify the number of Shares for which the
option is being exercised and shall be accompanied
by (i) such documentation, if any, as may be
required by the Company as provided in subparagraph
11(b), and (ii) payment of the aggregate option
price. Such payment shall be in the form of (i)
cash or a certified check (unless such certification
is waived by the Company) payable to the order of
the Company in the amount of the aggregate option
price, (ii) certificates duly endorsed for transfer
(with all transfer taxes paid or provided for)
evidencing a number of Shares (provided, however,
that with such Shares have been owned by the
Optionee for at least six months) of which the
aggregate fair market value on the date of exercise
is equal to the aggregate option exercise price of
the Shares being purchased, (iii) by delivering to
the Company (a) irrevocable instructions to deliver
the stock certificates representing the Shares for
which the option is being exercised, directly to a
broker, and (b) instructions to the broker to sell
such Shares and promptly deliver to the Company the
portion of the sale proceeds equal to the aggregate
option exercise price, or (iv) a combination of
these methods of payment. Delivery of said notice
shall constitute an irrevocable election to purchase
the Shares specified in said notice, and the date on
which the Company receives the last of said notice,
documentation and the aggregate option exercise
price for all of the Shares covered by the notice
shall, subject to the provisions of paragraph 11
hereof, be the date as of which the Shares so
purchased shall be deemed to have been acquired.
The Optionee shall not have the right or status as a
holder of the Shares to which such exercise relates
prior to receipt by the Company of the payment,
notice and documentation expressly referred to in
this paragraph 7.
8. Exercise and Cancellation of Options Upon
Termination of Employment or Death. Except as set
forth below, if a holder shall voluntarily or
involuntarily terminate his service as an employee
of the Company or any subsidiary of the Company, the
option of such holder shall terminate upon the date
of such termination of employment regardless of the
expiration date specified in such option. If the
termination of employment is due to retirement (as
defined by the Administrative Body in its sole
discretion), the holder shall have the privilege of
exercising any option that the holder could have
exercised on the day upon which he ceased to be an
employee of the Company or any subsidiary of the
Company, provided, however, that such exercise must
be accomplished within the term of such option and
within three (3) months of the holder's retirement.
If the termination of employment is due to
disability (to the extent and in a manner as shall
be determined by the Administrative Body in its sole
discretion), he (or his duly appointed guardian or
conservator) shall have the privilege of exercising
any option that he could have exercised on the day
upon which he ceased to be an employee of the
Company or any subsidiary of the Company; provided,
however, that such exercise must be accomplished
within the term of such option and within one (1)
year of the termination of his employment with the
Company or any subsidiary of the Company. If the
termination of employment is due to the death of the
holder, the duly appointed executor or administrator
of his estate shall have the privilege at any time
of exercising any option that the holder could have
exercised on the date of his death; provided,
however, that such exercise must be accomplished
within the term of such option and within one (1)
year of the holder's death. For all purposes of the
Plan, an approved leave of absence shall not
constitute interruption or termination of
employment.
Nothing contained herein or in any option
agreement shall be construed to confer on any option
holder any right to be continued in the employ of
the Company or any subsidiary of the Company or
derogate from any right of the Company or any
subsidiary of the Company to retire, request the
resignation of or discharge such option holder, or
to lay off or require a leave of absence of such
option holder (with or without pay), at any time,
with or without cause.
9. Non-transferability of Options. No option
granted under the Plan shall be sold, pledged,
assigned or transferred in any manner except to the
extent that options may be exercised by an executor
or administrator as provided in paragraph 8 hereof.
An option may be exercised, during the lifetime of
the holder thereof, only by such holder or his duly
appointed guardian or conservator in the event of
his disability.
10. Adjustments Upon Changes in
Capitalization.
(a) If the outstanding Shares are subdivided,
consolidated, increased, decreased, changed into, or
exchanged for a different number or kind of shares
or other securities of the Company through
reorganization, merger, recapitalization,
reclassification, capital adjustment or otherwise,
or if the Company shall issue additional Shares as a
dividend or pursuant to a stock split, then the
number and kind of Shares available for issuance
pursuant to the exercise of options to be granted
under this Plan and all Shares subject to the
unexercised portion of any option theretofore
granted and the option price of such options shall
be adjusted to prevent the inequitable enlargement
or dilution of any rights hereunder; provided,
however, that any such adjustment in outstanding
options under the Plan shall be made without change
in the aggregate exercise price applicable to the
unexercised portion of any such outstanding option.
Distributions to the Company's shareholders
consisting of property other than shares of Common
Stock of the Company or its successor and
distributions to shareholders of rights to subscribe
for Common Stock shall not result in the adjustment
of the Shares purchasable under outstanding options
or the exercise price of outstanding options.
Adjustments under this paragraph shall be made by
the Administrative Body, whose determination thereof
shall be conclusive and binding. Any fractional
Share resulting from adjustments pursuant to this
paragraph shall be eliminated from any then
outstanding option. Nothing contained herein or in
any option agreement shall be construed to affect in
any way the right or power of the Company to make or
become a party to any adjustments,
reclassifications, reorganizations or changes in its
capital or business structure or to merge,
consolidate, dissolve, liquidate or otherwise
transfer all or any part of its business or assets.
(b) If, in the event of a merger or
consolidation, the Company is not the surviving
corporation, and in the event that the agreements
governing such merger or consolidation do not
provide for the substitution of new options or other
rights in lieu of the options granted hereunder or
for the express assumption of such outstanding
options by the surviving corporation, or in the
event of the dissolution or liquidation of the
Company, the holder of any option theretofore
granted under this Plan shall have the right not
less than five (5) days prior to the record date for
the determination of shareholders entitled to
participate in such merger, consolidation,
dissolution or liquidation, to exercise his option,
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; provided
that any conditions precedent to such exercise set
forth in any option agreement granted under this
Plan, other than the passage of time, have been
satisfied. In any such event, the Company will mail
or cause to be mailed to each holder of an option
hereunder a notice specifying the date that is to be
fixed as of which all holders of record of the
Shares shall be entitled to exchange their Shares
for securities, cash or other property issuable or
deliverable pursuant to such merger, consolidation,
dissolution or liquidation. Such notice shall be
mailed at least ten (10) days prior to the date
therein specified. In the event any then
outstanding option is not exercised in its entirety
on or prior to the date specified therein, all
remaining outstanding options granted hereunder and
any and all rights thereunder shall terminate as of
said date.
11. General Restrictions.
(a) No option granted hereunder shall be
exercisable if the Company shall, at any time and in
its sole discretion, determine that (i) the listing
upon any securities exchange, registration or
qualification under any state or federal law of any
Shares otherwise deliverable upon such exercise, or
(ii) the consent or approval of any regulatory body
or the satisfaction of withholding tax or other
withholding liabilities, is necessary or appropriate
in connection with such exercise. In any of such
events, the exercisability of such options shall be
suspended and shall not be effective unless and
until such withholding, listing, registration,
qualification or approval shall have been effected
or obtained free of any conditions not acceptable to
the Company in its sole discretion, notwithstanding
any termination of any option or any portion of any
option during the period when exercisability has
been suspended.
(b) The Administrative Body may require, as a
condition to the right to exercise an option, that
the Company receive from the option holder, at the
time of any such exercise, representations,
warranties and agreements to the effect that the
Shares are being purchased by the holder only for
investment and without any present intention to sell
or otherwise distribute such Shares and that the
option holder will not dispose of such Shares in
transactions which, in the opinion of counsel to the
Company, would violate the registration provisions
of the Securities Act of 1933, as then amended, and
the rules and regulations thereunder and any
applicable "blue sky" laws or regulations. The
certificates issued to evidence such Shares shall
bear appropriate legends summarizing such
restrictions on the disposition thereof.
12. Withholding Tax Liability.
(a) A holder of an option granted hereunder may
elect to tender shares to the Company in order to
satisfy federal and state withholding tax liability
(a "share withholding election"), provided, (i) the
Administrative Body, shall not have revoked its
advance approval of the holder's share withholding
election and (ii) the share withholding election is
made on or prior to the date on which the amount of
withholding tax liability is determined (the "Tax
Date").
(b) A share withholding election shall be
deemed made when written notice of such election,
signed by the holder, has been received by the
Secretary of the Company. Delivery of said notice
shall constitute an irrevocable election to have
shares so withheld.
(c) If a holder has made a share withholding
election pursuant to this paragraph 12, the Company
shall subtract from the number of Shares deliverable
to the holder on the date of exercise, the number of
Shares having an aggregate fair market value (as
determined in good faith by the Administrative Body)
equal to the statutory minimum amount of tax
required to be withheld plus cash for any fractional
amount.
(d) If a holder has made a share withholding
election, at the same time he may also elect to
tender shares having an aggregate fair market value
equal to his estimated incremental tax liability
(determined using his marginal federal and state and
local tax rates) in excess of the statutory minimum
withholding tax liability provided that he has held
said shares for at least six months.
13. Amendment. The Board shall have full
authority to amend, modify, terminate or alter the
Plan; provided, however, that no amendment to the
Plan shall, without the consent of the holder of an
existing option, materially and adversely affect his
rights under such option.
14. Termination. Unless the Plan shall
theretofore have been terminated as hereinafter
provided, the Plan shall terminate on April 30, 2003
and no options under the Plan shall thereafter be
granted, provided, however, the Board at any time
may, in its sole discretion, terminate the Plan
prior to the foregoing date. No termination of the
Plan shall, without the consent of the holder of an
existing option, materially and adversely affect his
rights under such option.
EXHIBIT 4.2
SYMBOL TECHNOLOGIES, INC.
1997 EMPLOYEE STOCK OPTION PLAN
(as of May 10, 1999)
1. Purpose. The 1997 Employee Stock Option Plan
(the "Plan") of Symbol Technologies, Inc. (the "Company"), a
Delaware corporation, is designed to aid the Company and its
subsidiaries in retaining and attracting personnel of exceptional
ability by enabling key employees to purchase a proprietary
interest in the Company, thereby stimulating in such individuals
an increased desire to render greater services which will
contribute to the continued growth and success of the Company and
its subsidiaries. Certain of the options to be granted under the
Plan are intended to satisfy the requirement for classification
as "Incentive Stock Options" as defined in Section 422A of the
Internal Revenue Code 1986, as amended (the "Code"). (An option
granted under the Plan which is intended to satisfy the
requirements for classification as an Incentive Stock Option
shall be referred to herein as a "Plan Incentive Stock Option").
2. Amount and Source of Stock. The total number of
shares of Common Stock, par value $.01 per share (the "Shares"),
of the Company which may be the subject of options granted
pursuant to the Plan shall not exceed 4,500,000 of the Company's
Shares subject to adjustment as provided in paragraph 10. Such
Shares may be reserved or made available from the Company's
authorized and unissued Shares or from Shares reacquired and held
in the Company's treasury. In the event that any option granted
hereunder shall terminate prior to its exercise in full for any
reason, then the Shares subject to such option shall be added to
the Shares otherwise available for issuance pursuant to the
exercise of options under the Plan.
3. Administration of Plan. If all of the members of
the Board of Directors of the Company (the "Board") are
"disinterested persons" as that term is defined in Rule 16b-
3(c)(2) (or any successor provision) promulgated under the
Securities and Exchange Act of 1934, as amended (the "Exchange
Act") ("Disinterested Persons"), then the Plan shall be
administered by the Board or, if so designated by resolution of
the Board by a committee of the Board comprised of two or more
members of the Board, selected by the Board, all of which members
shall be "Disinterested Persons" (the "Committee"). If all of
the members of the Board are not "Disinterested Persons", then
the Board shall designate such a Committee to administer the
Plan. (The body which is administering the Plan pursuant to this
paragraph shall at times be referred to herein as the
"Administrative Body.")
The Administrative Body shall have full
authority to interpret the Plan, to establish and amend rules and
regulations relating to it, to determine the key employees to
whom options may be granted under the Plan, to select from among
the eligible individuals those to whom options are to be granted,
to determine the terms and provisions of the respective option
agreements (which need not be identical) and to make all other
determinations necessary or advisable for the administration of
the Plan. The date on which the Administrative Body adopts
resolutions granting an option to a specified individual shall
constitute the date of grant of such option (the "Date of
Grant"); provided, however, that if the grant of an option is
made subject to the occurrence of a subsequent event (such as,
for example, the commencement of employment), the date on which
such subsequent event occurs shall be the Date of Grant. Such
resolutions shall also specify whether the option is or is not
intended to qualify as a Plan Incentive Stock Option; provided,
however, that in the event no such specification is made in such
resolutions, the Administrative Body will be deemed to have
specified that such option is not intended to qualify as a Plan
Incentive Stock Option; provided further, however, that in the
event such specification, whether explicit or implicit, is
inconsistent with terms set forth in such resolutions for such
option, then such specification shall be deemed of no force and
effect, and the Administrative Body will be deemed to have made a
specification which is consistent with such terms. The adoption
of any such resolution by the majority of the members of the
Administrative Body shall complete the necessary corporate action
constituting the grant of said option and an offer of Shares for
sale to said individual under the Plan.
4. Eligibility. All officers and key
employees of the Company or subsidiaries of the Company, as
determined by the Administrative Body, shall be eligible to
receive options hereunder; provided, however, that no Plan
Incentive Stock Option shall be granted hereunder to any person
who, together with his spouse, children and trusts and custodial
accounts for their benefit, at the time of the grant of such
option, owns, within the meaning of Section 425(d) of the Code,
Shares constituting more than ten percent (10%) of the total
combined voting power of all of the outstanding stock of the
Company (a "Ten Percent Shareholder"), unless the Plan Incentive
Stock Option granted to the Ten Percent Shareholder satisfies the
additional conditions for the options granted to Ten Percent
Shareholders set forth in subparagraphs 5(a) and 6(a). For
purposes of the Plan, a subsidiary shall mean any corporation of
which the Company owns or controls, directly or indirectly, fifty
percent (50%) or more of the outstanding shares of stock normally
entitled to vote for the election of directors including voting
securities issuable upon conversion of another security which is,
or may be issuable upon the exercise of any warrant, option or
other similar right, and any partnership of which the Company or
a corporate subsidiary is a general partner. From time to time
the Administrative Body shall, in its sole discretion, within the
applicable limits of the Plan, select from among the eligible
individuals those persons to whom options shall be granted under
the Plan, the number of Shares subject to each option, and the
exercise price, terms and conditions of any options to be granted
hereunder.
5. Option Price; Maximum Grant.
(a) The exercise price for the Shares purchasable
under any option granted pursuant to the Plan shall not be less
than 100% or, in the case of a Plan Incentive Stock Option
granted to a Ten Percent Shareholder, 110% of the fair market
value per share of the Shares subject to option under the Plan at
the Date of Grant, solely as determined by the Administrative
Body in good faith. The exercise price for options granted
pursuant to the Plan shall be subject to adjustment as provided
in paragraph 10. For purposes of the Plan, the "fair market
value per share" of the Shares on a given date shall be: (i) if
the Shares are listed on a registered securities exchange or
traded on the NASDAQ National Market System, the closing price
per share of the Shares on such date (or, if there was no trading
in the Shares on such date, on the next preceding day on which
there was trading); (ii) if the Shares are not listed on a
registered securities exchange or traded on the NASDAQ National
Market System but the bid and asked prices per share for the
Shares are provided by NASDAQ, the National Quotation Bureau
Incorporated or any similar organization, the average of the
closing bid and asked price per share of the Shares on such date
(or, if there was no trading in the Shares on such date, on the
next preceding day on which there was trading) as provided by
such organization; and (iii) if the Shares are not listed on a
registered securities exchange or traded on the NASDAQ National
Market System and the bid and asked prices per share of the
Shares are not provided by NASDAQ, the National Quotation Bureau
Incorporated or any similar organization, as determined by the
Administrative Body in good faith.
(b) To the extent necessary for Plan Incentive
Stock Options to qualify as Incentive Stock Options, the
aggregate fair market value, determined as the Date of Grant, of
the Shares subject to options which may first become exercisable
by an individual in any calendar year, under this Plan and all
other stock option plans of the Company and of any parent or
subsidiary of the Company pursuant to which Incentive Stock
Options may be granted, shall not exceed $100,000.
(c) The maximum number of Shares purchasable under
any option or options granted pursuant to the Plan to any one
individual in any calendar year shall in no event exceed one
percent of the then issued and outstanding shares of Common Stock
of the Company.
6. Term of Option.
(a) Subject to the provisions of the Plan, the
Administrative Body shall have absolute discretion in determining
the period during which, the rate at which and the terms and
conditions upon which any option granted hereunder may be
exercised, and whether any option exercisable in installments is
to be exercisable on a cumulative or non-cumulative basis;
provided, however, that no option granted hereunder shall be
exercisable for a period exceeding ten (10) years or, in the case
of a Plan Incentive Stock Option granted to a Ten Percent
Shareholder, five (5) years from the Date of Grant. The
Administrative Body may, at any time before complete termination
of any option granted hereunder, accelerate the time or times at
which such option may be exercised in whole or in part.
(b) The grant of options by the Administrative
Body shall be effective as of the date on which the
Administrative Body shall authorize the option; provided,
however, that no option granted hereunder shall be exercisable
unless and until the holder shall enter into an individual option
agreement with the Company that shall set forth the terms and
conditions of such option. Each such agreement shall expressly
incorporate by reference the provisions of this Plan (a copy of
which shall be made available for inspection by the optionee
during normal business hours at the principal office of the
Company), and shall state that in the event of any inconsistency
between the provisions hereof and the provisions of such
agreement, the provisions of this Plan shall govern.
7. Exercise of Options. An option shall be
exercised when written notice of such exercise, signed by the
person entitled to exercise the option, has been delivered or
transmitted by registered or certified mail to the Secretary of
the Company at its then principal office. Said notice shall
specify the number of Shares for which the option is being
exercised and shall be accompanied by (i) such documentation, if
any, as may be required by the Company as provided in
subparagraph 11(b), and (ii) payment of the aggregate option
price. Such payment shall be in the form of (i) cash or a
certified check (unless such certification is waived by the
Company) payable to the order of the Company in the amount of the
aggregate option price, (ii) certificates duly endorsed for
transfer (with all transfer taxes paid or provided for)
evidencing a number of Shares (provided, however, that with such
Shares have been owned by the Optionee for at least six months)
of which the aggregate fair market value on the date of exercise
is equal to the aggregate option exercise price of the Shares
being purchased, (iii) by delivering to the Company (a)
irrevocable instructions to deliver the stock certificates
representing the Shares for which the option is being exercised,
directly to a broker, and (b) instructions to the broker to sell
such Shares and promptly delivered to the Company the portion of
the sale proceeds equal to the aggregate option exercise price,
or (iv) a combination of these methods of payment. Delivery of
said notice shall constitute an irrevocable election to purchase
the Shares specified in said notice, and the date on which the
Company receives the last of said notice, documentation and the
aggregate option exercise price for all of the Shares covered by
the notice shall, subject to the provisions of paragraph 11
hereof, be the date as of which the Shares so purchased shall be
deemed to have been acquired. The optionee shall not have the
right or status as a holder of the Shares to which such exercise
relates prior to receipt by the Company of the payment, notice
and documentation expressly referred to in this Paragraph 7.
8. Exercise and Cancellation of Options Upon
Termination of Employment or Death. Except as set forth below,
if an optionee shall voluntarily or involuntarily terminate his
service as an employee of the Company or any subsidiary of the
Company, any option awarded hereunder shall terminate upon the
date of such termination of employment regardless of the
expiration date specified in such option. Notwithstanding the
foregoing, an option agreement may, at the Administrative Body's
discretion, provide that the optionee shall have the right to
exercise an option after his employment has terminated for any
reason whatsoever, including death, disability or retirement
provided, however that the exercise must be accomplished within
the term of such option. Furthermore, all option agreements
shall provide that if the termination of employment is due to
retirement or disability (as defined by the Administrative Body
in its sole discretion), the optionee (or his duly appointed
guardian or conservator) shall have the privilege of exercising
any option that the optionee could have exercised on the day upon
which he ceased to be an employee of the Company or any
subsidiary of the Company, provided, however, that such exercise
must be accomplished within the term of such option and within
one (1) year of the date of the termination of the optionee's
employment with the Company or any subsidiary of the Company. If
the termination of employment is due to the death of the
optionee, the duly appointed executor or administrator of his
estate shall have the privilege at any time of exercising any
option that the optionee could have exercised on the date of his
death; provided, however that such exercise must be accomplished
within the term of such option and within one (1) year of the
optionee's death. For all purposes of the Plan, an approved
leave of absence shall not constitute interruption or termination
of employment.
Nothing contained herein or in any option agreement
shall be construed to confer on any optionee any right to be
continued in the employ of the Company or any subsidiary of the
Company or derogate from any right of the Company or any
subsidiary of the Company to retire, request the resignation or
discharge of such optionee, or to lay off or require a leave of
absence of such optionee (with or without pay), at any time, with
or without cause.
9. Transferability of Options.
(a) Subject to the provisions of subparagraph 9(b)
hereof, options granted under this Plan shall not be transferable
except by will or the laws of descent and distribution. Such
options shall be exercisable during the optionee's lifetime only
by the optionee (or his duly appointed guardian or conservator).
(b) The Administrative Body may, in its discretion,
authorize the transfer of all or a portion of any options granted
hereunder on terms which permit the transfer by the optionee to
(i) the spouse, children or grandchildren of the optionee
("Immediate Family Members"), (ii) a trust or trusts for the
exclusive benefit of such Immediate Family Members, or (iii) a
partnership in which such Immediate Family Members and/or the
optionee are the only partners, provided that (a) the optionee
shall receive the approval of the Administrative Body prior to
such transfer, and such transfer must be limited to the persons
or entities listed in this subparagraph 9(b), and (b) subsequent
transfers of such transferred options shall be prohibited except
in accordance with this Paragraph 9. Following any such
transfer, such options shall continue to be subject to the same
terms and conditions as were applicable immediately prior to
transfer, provided that for purposes of this plan, the term
"optionee" shall be deemed to refer to the transferor. In the
event of the termination of the employment of the transferor, the
provisions provided herein shall continue to be applicable to the
option and shall limit the ability of the transferee to exercise
any such transferred options to the same extent they would have
limited the optionee.
10. Adjustments Upon Changes in Capitalization.
(a) If the outstanding Shares are subdivided,
consolidated, increased, decreased, changed into, or exchanged
for a different number or kind of shares or other securities of
the Company through reorganization, merger, re-capitalization,
reclassification, capital adjustment or otherwise, or if the
Company shall issue additional Shares as a dividend or pursuant
to a stock split, then the number and kind of shares available
for issuance pursuant to the exercise of options to be granted
under this Plan and all Shares subject to the unexercised
portion of any option theretofore granted and the option price of
such options shall be adjusted to prevent the inequitable
enlargement or dilution of any rights hereunder; provided,
however, that any such adjustment in outstanding options under
the Plan shall be made without change in the aggregate exercise
price applicable to the unexercised portion of any such
outstanding option. Distributions to the Company's shareholders
consisting of property other than shares of Common Stock of the
Company or its successor and distributions to shareholders of
rights to subscribe for Common Stock shall not result in the
adjustment of the Shares purchasable under outstanding options or
the exercise price of outstanding options. Adjustments under
this paragraph shall be made by the Administrative Body, whose
determination thereof shall be conclusive and binding. Any
fractional Share resulting from adjustments pursuant to this
paragraph shall be eliminated from any then outstanding option.
Nothing contained herein or in any option agreement shall be
construed to effect in any way the right or power of the Company
to make or become a party to any adjustments, reclassification,
reorganizations or changes in its capital or business structure
or to merge, consolidate, dissolve, liquidate or otherwise
transfer all or any part of its business or assets.
(b) If, in the event of a merger or consolidation,
the Company is not the surviving corporation, and in the event
that the agreements governing such merger or consolidation do not
provide for substitution of new options or other rights in lieu
of the options granted hereunder or for the express assumption of
such outstanding options by the surviving corporation, or in the
event of the dissolution or liquidation of the Company, the
holder of any option theretofore granted under this Plan shall
have the right no less than five (5) days prior to the record
date for the determination of shareholders entitled to
participate in such merger, consolidation, dissolution or
liquidation, to exercise his option, 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; provided that any
conditions precedent to such exercise set forth in any option
agreement granted under this Plan, other than the passage of
time, shall have been satisfied. In any such event, the Company
will mail or cause to be mailed to each holder of an option
hereunder a notice specifying the date that is to be fixed as of
which all holders of record of Shares shall be entitled to
exchange their Shares for securities, cash or other property
issuable or deliverable pursuant to such merger, consolidation,
dissolution or liquidation. Such notice shall be mailed at least
ten (10) days prior to the date therein specified. In the event
any then outstanding option is not exercised in its entirety on
or prior to the date specified therein, all remaining outstanding
options granted hereunder and any and all rights thereunder shall
terminate as of said date.
11. General Restrictions.
(a) No option granted hereunder shall be exercisable
if the Company shall, at any time and in its sole discretion,
determine that (i) the listing upon any securities exchange,
registration or qualification under any state or federal law of
any Shares otherwise deliverable upon such exercise, or (ii) the
consent or approval of any regulatory body or the satisfaction of
withholding tax or other withholding liabilities, is necessary or
appropriate in connection with such exercise. In any of such
events, the exercisability of such options shall be suspended and
shall not be effective unless and until such withholding,
listing, registration, qualification or approval shall have been
effected or obtained free of any conditions not acceptable to the
Company in its sole discretion, notwithstanding any termination
of any option or any portion of any option during the period when
exercisability has been suspended.
(b) The Administrative Body may require, as a
condition to the right to exercise an option, that the Company
receive from the optionee, at the time of any such exercise,
representations, warranties and agreements to the effect that the
Shares are being purchased by the optionee without any present
intention to sell or otherwise distribute such Shares in
violation of the Securities Act of 1933 (the "1933 Act") and that
the optionee will not dispose of such Shares in transactions
which, in the opinion of counsel to the Company, would violate
the registration provisions of the 1933 Act and the rules and
regulations thereunder and any applicable "blue sky" laws or
regulations. The certificates issued to evidence such Shares
shall bear appropriate legends summarizing such restrictions on
the disposition thereof.
12. Withholding Tax Liability.
(a) An optionee may elect to tender shares to the
Company in order to satisfy federal and state withholding tax
liability (a "share withholding election"), provided, (i) the
Administrative Body shall not have revoked its advance approval
of the optionee's share withholding election and (ii) the share
withholding election is made on or prior to the date on which the
amount of withholding tax liability is determined.
Notwithstanding the foregoing, an optionee whose transactions in
Common Stock are subject to Section 16(b) of the 1934 Act may
make a share withholding election only if said elections also in
compliance with the provisions of said Section and the rules and
regulations promulgated thereunder.
(b) A share withholding election shall be deemed made
when written notice of such election, signed by the optionee, has
been received by the Secretary of the Company. Delivery of said
notice shall constitute an irrevocable election to have Shares so
withheld.
(c) Upon exercise of an option, the Company shall
transfer the total number of Shares so exercised less the number
of Shares deliverable, if any, in connection with the share
withholding election (which shall be the number of Shares having
an aggregate fair market value as provided herein equal to the
statutory minimum amount of tax required to be withheld plus cash
for any fractional amount.)
(d) If an optionee has made a share withholding
election, at the same time he may also elect to tender Shares
having an aggregate fair market value equal to his estimated
incremental tax liability (determined using his marginal federal
and state and local tax rates) in excess of the minimum statutory
withholding tax liability provided that he has held said Shares
for at least six months.
13. Amendment. The Board shall have full authority to
amend the Plan; provided, however, that any amendment that (i)
increases the number of Shares that may be the subject to stock
options granted under the Plan, (ii) expands the class of
individuals eligible to receive options under the Plan, (iii)
increases the period during which options may be granted or the
permissible term of options under the Plan, or (iv) decreases the
minimum exercise price of such options, shall only be adopted by
the Board subject to shareholder approval. No amendment to the
Plan shall, without the consent of the holder of an existing
option, materially and adversely affect his rights under any
option.
14. Termination. Unless the Plan shall theretofore
have been terminated as hereinafter provided, the Plan shall
terminate on February 9, 2007 and no options under the Plan shall
thereafter be granted, provided, however, the Board at any time
may, in its sole discretion, terminate the Plan prior to the
foregoing date. No termination of the Plan shall without the
consent of the holder of an existing option, materially and
adversely affect his rights under such option.
The Plan shall be submitted to the shareholders of the
Company for approval in accordance with the applicable provisions
of the General Corporate Law of the State of Delaware as promptly
as practicable and in any event by February 9, 1998. Any options
granted hereunder prior to such shareholder approval shall not be
exercisable unless and until such approval is obtained. If such
approval is not obtained by February 9, 1998, the Plan and any
options granted hereunder shall be terminated.
EXHIBIT 4.3
SYMBOL TECHNOLOGIES, INC.
1999 DIRECTORS' WARRANT AGREEMENT
10,000 $53.3125
Number of Shares of Common Exercise Price
Stock Subject to Warrant Per Share
May 10, 1999
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 May 10, 2000. Subject
to Paragraph 3, this Warrant may be exercisable with respect to 25% of
the total number of shares originally covered thereby on and after May
10, 2000, and such percentage shall increase by 25% on each of the next
three consecutive anniversary dates of that date. Accordingly, on May
10, 2003, 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 notice 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.
(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) tending 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 (10) 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 (1) year
after the date of your death (but in no event after the expiration of
ten (10) 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 to the date of receipt of such payment.
Nothing contained herein shall be construed as giving any warrant
holder any right to be retained by 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.
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: /s/ Jerome Swartz____________ ___________________________
JEROME SWARTZ Director
Chairman of the Board of Directors
EXHIBIT 5(A)
May 13, 1999
Symbol Technologies, Inc.
One Symbol Plaza
Holtsville, New York 11742-1300
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 6,550,000
shares (the "Shares"), of the Company's Common Stock, par value $.01 per
share, 2,000,000 of which are being offered pursuant to the Company's 1990
Non-Executive Stock Option Plan, as amended (the "1990 Plan"), 4,500,000 of
which are being offered pursuant to the Company's 1997 Employee Stock Option
Plan, as amended (the "1997 Plan") and 50,000 of which are being offered
pursuant to the 1999 Directors' Warrants (the "1999 Director 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 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.
Symbol Technologies, Inc.
May 13, 1999
Page -2-
In connection with my rendering of this opinion, I wish to note that, as
of May 10, 1999, I own in the aggregate 116,972 shares of the Common Stock of
the Company. In addition, I own options to purchase an aggregate of 249,375
shares of Common Stock, (including options to purchase 25,000 shares held by a
trust of which I am a co-trustee and a beneficiary). My wife owns 3,000
shares of the Common Stock of the Company and is co-trustee of a trust which
owns options to purchase 75,000 shares of Common Stock. I disclaim beneficial
ownership of any shares held by my wife or this trust.
Subject to and 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
300,000,000 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 options issued pursuant to the 1990
Plan, the 1997 Plan and the 1999 Directors' 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:lac
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Symbol Technologies, Inc. on Form S-8 of our report dated
February 18, 1999 appearing in the Annual Report on Form 10-K of Symbol
Technologies, Inc. and subsidiaries for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Jericho, New York
May 14, 1999
EXHIBIT 23.2
(Included in Exhibit 5(a))
EXHIBIT 24
(See Page 8 of Form S-8)
