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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RADYNE CORP.
(Exact name of registrant as specified in its charter)
New York
(State or other jurisdiction of incorporation or organization)
11-2569467
(I.R.S. Employer Identification No.)
5225 South 37th Street
Phoenix, Arizona 85040
(Address of Principal Executive offices)
1996 Incentive Stock Option Plan
(Full title of the plan)
John B. Wade, III, Esq.
Brock, Fensterstock, Silverstein,
McAuliffe & Wade, LLC
One Citicorp Center
153 East 53rd Street
New York, New York 10022
(212) 371-2000
(Name, Address and Telephone Number of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered Share Price Fee
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Common Stock,
Par value
$0.002
per share 1,282,042 shs. $2.50(1) $3,205,105.00 $971.25
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Total 1,282,042 shs. $3,205,105.00 $971.25
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(1) Calculated pursuant to Rule 457(h)(1) on the basis of the exercise prices of
the options to purchase 968,395 shares of the Registrant's Common Stock
heretofore granted pursuant to the Registrant's 1996 Incentive Stock Option
Plan, which is the subject of this Registration Statement.
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This Registration Statement shall become effective immediately upon filing as
provided in Rule 462 under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference the following documents
into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1996.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1996.
(c) The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended March 31, 1996.
(d) The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended December 31, 1995.
(e) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, File No. 000-11685, filed under
the Securities Exchange Act of 1934 on March 8, 1984.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in and made a part of this Registration Statement from the date of
filing of such documents.
Item 4. Description of Securities.
Not required, in as much as the Registrant's Common Stock is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The Registrant carries directors and officers liability insurance in the
amount of $2,000,000. In addition, New York Business Corporation Law, Article 7,
enables a corporation in its original certificate of incorporation, or an
amendment thereto validly approved by stockholders, to eliminate or limit
personal liability of members of its Board of Directors for violations of a
director's fiduciary duty of care. However, the elimination or limitation shall
not apply where there has been bad faith, intentional misconduct or a knowing
violation of law, the payment of a dividend or approval of a stock repurchase
which is deemed illegal, any other violation of Section 719 of the New York
Business Corporation Law, or a financial profit or other advantage to which the
director was not legally entitled. The Registrant's Certificate of Incorporation
includes the following language:
"SEVENTH: A director of the Corporation shall not be
personally liable to the Corporation or its shareholders for
damages for any breach of duty as a director; provided that,
except as hereinafter provided, this Article SEVENTH shall
neither eliminate nor limit liability: (a) if a judgment or
final adjudication adverse to the director establishes that
(i) the director's acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law,
(ii) the director personally gained in fact a financial profit
or other advantage to which the director was not legally
entitled, or (iii) the director's acts violated Section 719 of
the New York Business Corporation Law; or (b) for any act or
omission prior to the effectiveness of this Article SEVENTH.
If the Corporation hereafter may by law be permitted to
further eliminate or limit the personal liability of
directors, then pursuant hereto the liability of a director of
the Corporation shall, at such time, automatically be further
eliminated or limited to the fullest extent permitted by law.
Any repeal of or modification to the provisions of this
Article SEVENTH shall not adversely affect any right or
protection of a director of the Corporation existing pursuant
to this Article SEVENTH immediately prior to such repeal or
modification.
EIGHTH: The Corporation may, to the fullest extent permitted
by Section 721 through 726 of the Business Corporation Law of
New York, indemnify any and all directors and officers whom it
shall have power to indemnify under the said sections from and
against any and all of the expenses, liabilities or other
matters referred to in or covered by such section of the
Business Corporation
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Law, and the indemnification provided for herein shall not be
deemed exclusive of any other rights to which the persons so
indemnified may be entitled under any By-Law, agreement, vote
of shareholders or disinterested directors or otherwise, both
as to action in his/her official capacity and as to action in
another capacity by holding such office, and shall continue as
to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and
administrators of such a person."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index on page II-7 of this Registration Statement.
Item 9. Undertakings.
(1) The undersigned Registrant undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act of 1933, unless the information required to be
included in such post-effective amendment is contained in a periodic
report required to be filed by the Registrant or plan pursuant to
Section 13 or 15(d) of the Exchange Act that is incorporated herein
by reference;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement, unless the information required
to be included in such post-effective amendment is contained in a
periodic report filed by the Registrant or plan pursuant to Section
13 or 15(d) of the Exchange Act that is incorporated herein by
reference;
(iii) to include any material information with respect to the
plan of
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distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement related to the securities offered
herein, and the offering of such securities at the time shall be deemed to
be the initial bona fide offering thereof.
(c) 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.
(d) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the provisions described in Item 6 above,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by the director, officer or
controlling person of the Registrant in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on March 11, 1997.
RADYNE CORP.
By: /s/ ROBERT C. FITTING
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Robert C. Fitting
President
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert C. Fitting, his true and lawful
attorney-in-fact, with power of substitution and resubstitution, to execute in
the name of such person, in his capacity as a director or officer of Radyne
Corp., any and all amendments to this Registration Statement on Form S-8 and all
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact, or his substitute, may do or cause to
be done by virtue hereof.
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 date indicated.
Signature Title Date
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/s/ ROBERT C. FITTING President March 11, 1997
- -------------------------- (Principal Executive
Robert C. Fitting Officer); Director
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/s/ GARRY D. KLINE Controller, Principal March 11, 1997
- -------------------------- Financial Officer
Garry D. Kline
/s/ LIM MING SEONG Chairman of the March 11, 1997
- -------------------------- Board of Directors
Lim Ming Seong
/s/ LEE YIP LOI Director March 11, 1997
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Lee Yip Loi
/s/ CHAN WEE PIAK Director March 11, 1997
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Chan Wee Piak
/s/ ROBERT A. GRIMES Director March 11, 1997
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Robert A. Grimes
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EXHIBIT INDEX
Exhibit No.
(4) - Registrant's 1996 Incentive Stock Option Plan, including forms
of option agreements.
(5) - Opinion of Brock, Fensterstock, Silverstein, McAuliffe & Wade,
LLC
(24)(a) - Consent of Brock, Fensterstock, Silverstein, McAuliffe & Wade,
LLC (included in Exhibit 5).
(24)(b) - Consent of Deloitte & Touche LLP
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EXHIBIT 4
RADYNE CORP.
1996 Incentive Stock Option Plan
1. Purpose
The purpose of this Incentive Stock Option Plan (the "Plan") is to
advance and promote the interests of Radyne Corp. (the "Company"), by
encouraging and enabling the acquisition of a personal financial interest in the
Company by employees upon whose judgment and ability the Company and its
subsidiaries are dependent for the conduct of their operations. It is
anticipated that the acquisition of such interest in the Company will stimulate
the efforts of such employees on behalf of the Company and its subsidiaries and
strengthen their desire to remain with the Company and its subsidiaries. It is
also anticipated that the Plan may help to attract new talent in the event the
Company and its subsidiaries should find it necessary or beneficial to do so.
In furtherance of the above stated purpose, it is intended that
options to purchase an aggregate of 668,395 shares of Common Stock (as defined
below) shall be granted and allocated among a group of 30 key employees of the
Company, who would thereby have the option to acquire ownership of 10% of the
fully diluted common equity in the Company, provided that certain earnings
milestones, set forth in the agreements evidencing such options, are achieved by
the Company (the "Milestone Options"). Each
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milestone achieved would render one-third of the Milestone Options exercisable.
By providing for cash bonuses payable upon the exercise of Milestone Options,
the aggregate net amount payable to the Company upon exercise of the Milestone
Options would be approximately $522,150 ($174,050) for the options becoming
exercisable upon the achievement of each milestone). The above stated figures of
668,395 and 10% have been determined after giving effect to a 5-for-1 reverse
split of the Common Stock and a certain rights offering approved by the Board
(as defined below) on November 13, 1996. If the Company issues additional shares
of Common Stock in the future (except pursuant to such rights offering or
employee stock options), each holder of unexercised Milestone Options would be
granted new options ("Anti-Dilution Options") to purchase Common Stock, at the
then current Common Stock price, as necessary to avoid dilution of the equity
percentage represented by such unexercised options. It is intended that all
Milestone Options will have been granted no later than February 13, 1997.
Also in furtherance of the above stated purpose, it is intended that
selected employees of the Company will be granted options to purchase 280,000
shares of Common Stock at the price, and during the term, offered in the above
mentioned rights offering (the "Rights Offering Options"). It is expected that
any options granted under the Plan (except Rights Offering Options, Milestone
Options or Anti-Dilution Options) will provide for exercisability staged over a
minimum four-year period of employment, provided that the Board shall have the
authority to vary such period.
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2. Administration
The Plan shall be administered by the Board of Directors of the
Company (the "Board"), acting through the Compensation Committee thereof, which
shall be composed solely of disinterested members within the meaning of Rule
16b-3 under the Securities Exchange Act of 1934, as amended.
Subject to the provisions of the Plan, the Board is authorized (i)
to prescribe, amend and rescind such rules and regulations as it may deem
appropriate for the administration of the Plan and (ii) to make such
determinations and interpretations as it deems necessary or advisable for the
administration of the Plan (including but not limited to determinations as to
which eligible persons shall receive options under the Plan and the number of
shares to be optioned to each eligible person). The Board's determinations and
interpretations relating to the Plan shall be final and conclusive.
3. Eligibility
All employees of the Company and its subsidiaries may be offered an
opportunity to participate in the Plan as herein provided. For purposes of the
Plan, the term "subsidiary" shall have the meaning set forth in Section 424(f)
of the Internal Revenue Code of 1986, as amended (the "Code").
4. Term and Effective Date of the Plan
The effective date of the Plan is the later of November 13, 1996 or
the date as of which the Plan shall have been adopted by the Board. The Plan
shall continue in effect until November 12, 2006 unless sooner terminated
pursuant to Section 17 hereof. The Plan
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and all options which may be granted hereunder are, however, expressly
conditioned upon approval of the Plan by the vote of holders of at least a
majority of the outstanding shares of the common stock of the Company ("Common
Stock") within twelve months before or after the effective date of the Plan.
Each option granted hereunder prior to such approval shall be conditioned upon,
and there shall be expressly set forth in the agreement evidencing such option,
the condition that the option may not be exercised to any extent until the Plan
is so approved by the stockholders of the Company. If such stockholder approval
is not obtained, then any options theretofore granted under the Plan shall be
null and void.
5. Operation of Plan
The Board may from time to time until November 12, 2006 grant
options to persons eligible therefor for the purchase of shares of Common Stock,
not exceeding in the aggregate 1,282,042 shares (subject to adjustment as
hereinafter provided in Section 14). The agreements evidencing such options
shall, in the case of options for the purchase of an aggregate of 668,395 shares
of Common Stock (subject to adjustment as provided in Section 14) pursuant to
Milestone Options, be in substantially the form attached hereto as Exhibit 1 or
2, and, in the case of options for the purchase of an aggregate of 333,647
shares of Common Stock (subject to adjustment as provided in Section 14), be in
substantially the form attached hereto as Exhibit 3, and, in the case of options
for the purchase of an aggregate of 280,000 shares of Common Stock (subject to
adjustment as provided in Section 14) pursuant to Rights Offering Options be in
substantially the form attached hereto as Exhibit 4. Such shares shall be made
available from the authorized shares of Common Stock. If any option lapses or
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terminates for any reason, the shares then covered thereby may again be
subjected to options under the Plan. If the Company is unable to obtain from any
regulatory body having jurisdiction any authorization deemed by the Company's
counsel to be necessary to the lawful issuance or sale of any shares hereunder,
the Company shall be relieved from any liability in respect of the non-issuance
or sale of such shares as to which such authorization shall not have been
obtained.
6. Option Price
The purchase price per share of Common Stock under each option
shall, upon the grant thereof, be as determined by the Board after consultation
with management, taking into account the Company's anticipated performance and
applicable law, but such price shall not be less than 100% (110% in the case of
an option granted to a person owning directly or constructively within the
meaning of Section 424(d) of the Code stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company or any parent
or subsidiary thereof (a "Major Shareholder")) of the Fair Market Value per
share of Common Stock as of the date the option is granted. As such term is used
in the Plan, the "Fair Market Value" per share of Common Stock shall be the
price, determined in good faith by the Board, at which a willing buyer would
purchase and a willing seller would sell such share, both being informed of all
material facts and under no compulsion to act, without regard to any restriction
other than one which, by its terms, will never lapse, within the meaning of
Section 422(c)(7) of the Code. However, if the Common Stock is quoted on the
NASDAQ National Market or the NASDAQ SmallCap Market, such Fair Market Value
shall be the last readily
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available sales price for the date as of which such Fair Market Value is to be
determined or, if no sales occurred on such date, such Fair Market Value shall
be the mean between the last bid and asked prices on such system on the date as
of which such Fair Market Value is to be determined; or if the Common Stock is
listed on a national securities exchange, such Fair Market Value shall be the
last sale price of such Common Stock on such exchange on the date as of which
such Fair Market Value is to be determined, or if no sales occurred on such date
the mean between the closing bid and asked prices on such date.
7. Exercise and Duration of Options
Notwithstanding any other provision of the Plan or any agreement
evidencing options granted hereunder, each option granted under the Plan shall
terminate not later than ten (10) years (five (5) years in the case of an option
granted to a Major Shareholder) after the date on which it was granted. Each
option granted under the Plan shall be exercisable by the option holder only
while he is an employee of the Company, or of a parent or subsidiary of the
Company, subject to the provisions of Sections 10, 11 and 12 hereof. The date of
grant of an option shall, for all purposes, be the date on which the Board makes
the determination granting such option.
Each agreement evidencing options granted hereunder shall expressly
set forth when, and under what conditions (including, but not limited to, the
fulfillment of corporate performance targets), such options shall become vested
and/or exercisable; provided, however, that in no instance shall options granted
to an employee (under the Plan or any other incentive stock option plan of the
Company or any parent or subsidiary thereof) to acquire common
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stock with a Fair Market Value in excess of $100,000 (determined as of the date
on which the options were granted) become exercisable for the first time during
any single calendar year, unless the excess shall be expressly designated in the
option agreement as not constituting incentive stock options within the meaning
of Section 422 of the Code. Subject to the first sentence of this Section 7, to
the extent (if any) that an employee's incentive stock options to acquire common
stock with a Fair Market Value in excess of $100,000 (as so determined) would
otherwise first become exercisable during a single calendar year, options to
acquire Stock with a Fair Market Value of $100,000 shall become exercisable
during that calendar year, and the remaining options shall become exercisable as
of the first day of the following calendar year. In applying the immediately
preceding sentence, options shall become exercisable in the order in which they
were granted.
The option price for shares purchased shall be paid in full in cash
or certified check at the time of exercise, provided, however, that the Board
may in its discretion elect to include in any stock option agreement a provision
for payment of the option price in whole or in part in shares of Common Stock,
which Common Stock shall be valued for this purpose at its Fair Market Value as
of the date of such payment. No shares shall be delivered until such payment is
made. A person to whom an option is granted shall not be deemed the holder of
any shares subject to the option for any purpose until the shares are delivered
to him. An option may not be exercised for fractional shares.
8. Tax Obligations
The Board may require as a condition of the exercise of an option
that the
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person seeking to exercise such option shall pay to the Company, in cash, an
amount sufficient to satisfy the Company's obligation (if any) to withhold
federal, state and local taxes with respect to the exercise of such option.
9. Transferability of Options
An option granted under the Plan may not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner except by will or the
laws of descent and distribution. During the lifetime of the individual to whom
an option is granted, such option may be exercised only by him. The Board may
require as a condition to the exercise of any option that the optionee execute a
stockholders' agreement or impose such other restrictions on the transferability
of Common Stock issued upon such exercise as it may deem appropriate.
10. Termination of Employment
Upon termination of employment for any reason, except as provided in
Section 11 or 12 hereof or in the agreement evidencing such option, a person to
whom an option is granted may, at any time within three months after the date of
such termination (but in no event later than the date of expiration of the
option under the provisions of Section 7 hereof or those of any agreement
evidencing such option), exercise the option to the extent, and only to the
extent, he was entitled to do so on the date of termination. Any options of
terminated employees not so exercised shall forthwith terminate.
For purposes of this Section 10, an individual's employment
relationship will be treated as continuing intact while he is on military leave,
sick leave or other bona fide
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leave of absence if the period of such leave does not exceed 90 days or, if
longer, so long as his right to reemployment with the Company (or a parent or
subsidiary thereof) is guaranteed by either statute or contract. Where the
period of leave exceeds 90 days and the individual's right to reemployment is
not guaranteed either by statute or by contract, the employment relationship
will be deemed to have terminated on the 91st day of such leave.
11. Death
If any person to whom an option has been granted shall die (i)
during the period of his employment by the Company or a parent or subsidiary
thereof or within three (3) months after the termination of such employment and
(ii) holding an option which has not been fully exercised, his estate or any
person who acquired the right to exercise the option by bequest or inheritance
or by reason of the death of such person may, at any time within such period as
the Board shall in its discretion provide in the agreement evidencing such
option, after the date of such death (but in no event after the option has
expired under the provisions of Section 7 hereof) exercise the option with
respect to the unexercised balance of the shares subject to the option to the
extent, and only to the extent, the decedent could have exercised the option
immediately before death.
12. Retirement and Disability
If any person to whom an option has been granted shall retire in
accordance with the normal retirement practices of the Company or shall
terminate employment as a result of permanent and total disability within the
meaning of Section 22(e)(3) of the Code while holding an option which has not
been fully exercised, the retired or disabled optionee
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may at any time within three months after the date of such retirement or within
one year after the date of such termination as a result of disability, as the
case may be, (but in no event after the option has expired under the provisions
of Section 7 hereof) exercise the option with respect to the unexercised balance
of the shares subject to the option to the extent, and only to the extent, such
optionee could have exercised the option immediately before such retirement or
termination.
13. Other Terms and Conditions
Each person to whom a stock option is granted under the Plan shall
be required to enter into a stock option agreement with the Company, providing,
inter alia, that the employee shall obligate himself: (1) not to disclose any
trade or secret data or any other confidential information acquired by him
during his employment by the Company or a parent or subsidiary of the Company;
and (2) to abide by all the terms and conditions of the Plan and such other
terms and conditions as may be imposed by the Board.
14. Option Adjustments Upon Changes in Capitalization
If all or any portion of an option is exercised subsequent to any
stock dividend, split-up, recapitalization, combination or exchange of shares,
merger, consolidation, acquisition of property (other than cash) for stock,
separation, reorganization or liquidation (provided that such transaction has
not been approved by the Board on or before the date of approval of the Plan by
the shareholders of the Company) as a result of which shares of any class shall
be issued in respect of outstanding shares of Common Stock or shares of Common
Stock shall be changed into the same or a different number of shares of the same
or another
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class or classes, the person or persons so exercising such option shall receive,
for the aggregate price payable upon exercise of the option, the aggregate
number and class of shares which, if shares of Common Stock (as authorized at
the date of the granting of such option) had been purchased at the date of
granting of the option for the same aggregate price (on the basis of the price
per share provided in the option) and had not been disposed of, such person or
persons would be holding at the time of such exercise, as a result of such
purchase and any such stock dividend, split-up, recapitalization, combination or
exchange of shares, merger, consolidation, acquisition of property for stock,
separation, reorganization or liquidation; provided, however, that no fractional
share shall be issued upon any such exercise. If any such adjustment would
result in an optionee being entitled to exercise an option with respect to a
fractional share, the number of shares subject to such option shall be reduced
to the next lowest number of full shares. In the event of any such change in the
outstanding Common Stock, the aggregate number and class of shares remaining
available under the Plan shall be that number and class which a person to whom
an option had been granted for all of the available shares under the Plan, on
the date preceding such change, would be entitled to receive as provided in the
first sentence of this Section.
If in connection with any contemplated merger, consolidation, tender
offer or other acquisition of Common Stock or sale or transfer by the Company of
substantially all of its assets, any option is not proposed to be assumed by the
surviving corporation or the purchaser in a manner which will carry out the
intention of the Plan in the view of the Board, (i) the terms of any outstanding
option may be amended to provide that the date of termination of such option may
be extended, (ii) the date on which such option, or any part
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thereof not then exercisable, may be exercised may be advanced to a date to be
fixed by the Board, or a limited period of exercisability may be so established,
(iii) the terms of such option may be modified so as to permit the acquisition
by the optionee (during the same period of exercisability as provided in the
option agreement, including amendments whenever effected) of any cash, property
or securities which would be receivable by him if he were a holder of the shares
of Common Stock purchasable by him upon exercise of his option in full
immediately prior to such event and (iv) such action, if any, shall be taken
through amendment to options or otherwise, including surrender for value and/or
the grant of rights to acquire cash, property or securities, as may be necessary
or appropriate to carry out the intent of the Plan. All options granted on the
same date shall be modified by the Board in a consistent manner.
15. Amendment of the Plan
Except as otherwise provided in Section 16 or 17 hereof or by the
laws of the State of New York, the Plan may be amended or revised by the Board
by the affirmative vote of a majority of the directors in office, provided that
no such amendment may alter or impair any option then outstanding without the
consent of the holder thereof.
16. Compliance with Certain Laws, Rules and Regulations
The Company, in its discretion, may postpone the issuance or
delivery of shares of Common Stock upon any exercise of an option until
completion of such stock exchange listing, registration or other qualification
of such shares under any state and/or federal law, rule or regulation as the
Company may consider appropriate, and may require any person
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exercising an option to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or delivery of
the shares in compliance with applicable laws, rules and regulations. Any
amendment of the Plan or of awards previously made hereunder may be made if
necessary to receive any required governmental approval of the Plan or of such
awards or if necessary to comply with any request of any governmental agency for
any such amendment if in the judgment of the Board it is in the interest of the
Company to comply with such request.
17. Termination
The Plan may be terminated at any time by resolution of the Board by
the affirmative vote of a majority of the directors in office. Such termination
shall not impair any rights which have accrued, or options which have been
granted, prior to such termination, but any Common Stock theretofore reserved
for options not granted prior to such termination shall be released.
18. Miscellaneous
The right of any participant to receive a distribution or payment
under the Plan shall be an unsecured claim against the general assets of the
Company.
No participant shall have any right to be retained in the employ of
the Company by reason of his participation in the Plan.
The Plan shall be governed by and construed in accordance with the
laws of the State of New York.
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<PAGE>
EXHIBIT 1
STOCK OPTION AGREEMENT
AGREEMENT made as of November 13, 1996, between Radyne Corp., a New
York corporation (hereinafter called the "Company"), and ___________________
(hereinafter called "Employee").
WHEREAS the Company considers it desirable and in its best interest
that Employee be given an inducement to acquire a proprietary interest in the
Company as an added incentive to advance the interests of the Company;
WHEREAS on November 13, 1996, the Company's Board of Directors adopted
its 1996 Incentive Stock Option Plan (the "Plan") and on November 13, 1996
determined to grant the option evidenced hereby, which is intended to constitute
an incentive stock option within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"); and
WHEREAS the Company has determined that the fair market value of its
common stock as of the date hereof, after giving effect to a 5-for-1 reverse
split which has been approved by its Board of Directors (the "Board") and which
shall have been approved by its shareholders prior to the option hereunder
becoming exercisable, is $2.50 per share;
NOW, THEREFORE, in consideration of the premises, it is agreed as follows:
1. Grant of option. The Company hereby grants to Employee the right,
privilege, and option to purchase ______ shares of its common stock, par value
$0.002 per share (the
-1-
<PAGE>
"Optioned Shares") at $2.50 per share in the manner and subject to the
conditions hereinafter provided.
2. Time of exercise of option; milestones. Except as otherwise provided in
this Agreement or in the Plan, the option granted hereunder may be exercised
only after the shareholders of the Company have approved the Plan and then only
in accordance with the following schedule: from and after the date on which the
Board in its good faith judgment, or the Company's independent auditing firm,
determines (a) that the Company's earnings before interest and taxes, determined
in accordance with generally accepted accounting principles consistently applied
(but without deduction of any cash bonus paid or payable pursuant to Paragraph
10 hereof or any other stock option agreement of even date herewith), for a
period composed of four successive calendar quarters ending no later than June
30, 2001 ("4-Quarter EBIT"), has exceeded $1,000,000, the option shall
thenceforth be exercisable as to one-third (1/3) of the shares covered thereby,
(b) that 4-Quarter EBIT has exceeded $2,500,000, the option shall thenceforth be
exercisable as to two-thirds (2/3) of the shares originally covered thereby,
less any shares as to which it shall have already been exercised, or (c) that
4-Quarter EBIT has exceed $6,000,000, the option shall thenceforth be
exercisable as to any remaining shares covered thereby.
3. Method of exercise. The option shall be exercised by written notice
directed to the Company at its principal place of business, accompanied by cash
in payment of the option price. The Company shall make immediate delivery of the
shares subject to the exercise of the option; provided that if any law or
regulation requires the Company to take any action with respect to such shares
(including but not limited to registration of such shares under the
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<PAGE>
Securities Act of 1933) before the issuance thereof, or if the Company deems
such action to be appropriate or advisable, then the date of delivery of such
shares shall be extended for the period necessary to take such action.
4. Termination of option. Except as otherwise stated in this Agreement, the
option (to the extent not previously exercised) shall terminate upon the earlier
of:
(a) the expiration of three months from the date on which Employee's
continuous employment by the Company (or by a parent or subsidiary thereof, as
defined in the Plan) is terminated; or
(b) the tenth anniversary of the date of this Agreement.
5. Death, disability or retirement. Notwithstanding Paragraph 4(a) hereof,
but in all events subject to Paragraph 4(b) hereof:
(a) in the event of Employee's death (i) while in the employ of the
Company (or a parent or subsidiary thereof) or (ii) within three months after
the termination of such employment, his estate or any person who acquires the
right to exercise the option by bequest, inheritance, or by reason of the death
of Employee may exercise the unexercised portion of the option, at any time
before the expiration thereof, to the same extent, and only such extent, that
Employee could have exercised the option immediately before his death;
(b) in the event Employee terminates employment with the Company (or a
parent or subsidiary thereof) as a result of permanent and total disability (as
such term is defined in Section 22(e)(3) of the Internal Revenue Code of 1986,
as amended) on a date as of which the option has not been fully exercised,
Employee may within one year after the date of such termination exercise the
unexercised portion of the option to the same extent, and only such
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<PAGE>
extent, that Employee could have exercised the option immediately before such
termination; and
(c) in the event Employee retires in accordance with the normal
retirement practices of the Company (or a parent or subsidiary thereof) on a
date as of which the option has not been fully exercised, Employee may within
three months after the date of such retirement exercise the unexercised portion
of the option to the same extent and only such extent, as Employee could have
exercised the option immediately before such retirement.
6. $100,000 annual limit. In no instance shall incentive stock options
granted to Employee under the Plan (or under any other incentive stock option
plan of the Company or any parent or subsidiary thereof) to acquire common stock
with a fair market value in excess of $100,000 (determined as of the date on
which the options were granted) become exercisable for the first time during any
single calendar year. Subject to Paragraph 4(b) hereof, to the extent (if any)
that Employee's incentive stock options to acquire common stock of the Company
(or a parent or subsidiary thereof) with a fair market value in excess of
$100,000 (so determined) would otherwise first become exercisable during a
single calendar year, options to acquire common stock with a fair market value
of $100,000 (so determined) shall become exercisable during such year and the
remaining options shall become exercisable as of the first day of the succeeding
calendar year, subject again to this Paragraph 6. In applying this paragraph,
options shall become exercisable in the order in which they were granted.
7. Change in stock and adjustments.
(a) If all or any portion of the option evidenced hereby is exercised
subsequent to any stock dividend, split-up, recapitalization, combination or
exchange of shares, merger, consolidation, acquisition of property (other than
cash) for stock, separation,
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<PAGE>
reorganization or liquidation (provided that such transaction has not been
approved by the Board on or before the date hereof) as a result of which shares
of any class shall be issued in respect of outstanding shares of common stock of
the Company of shares of common stock of the Company shall be changed into the
same or a different number of shares of the same or another class or classes,
the person or persons so exercising such option shall receive, for the aggregate
price payable upon exercise of the option, the aggregate number and class of
shares which, if shares of common stock of the Company had been purchased at the
date of granting of the option for the same aggregate price (on the basis of the
price per share provided in the option) and had not been disposed of, such
person or persons would be holding at the time of such exercise, as a result of
such purchase and any such stock dividend, split-up, recapitalization,
combination or exchange of shares, merger, consolidation, acquisition of
property for stock, separation, reorganization or liquidation; provided,
however, that no fractional share shall be issued upon any such exercise. If any
such adjustment would result in the optionee being entitled to exercise an
option with respect to a fractional share, the number of shares subject to such
option shall be reduced to the next lowest number of full shares. Employee
acknowledges that this Agreement, including the figures stated herein, has been
prepared taking into account a 5-for-1 reverse split of the Company's common
stock, which was approved by the Board on November 13, 1996.
(b) In the event that the Company shall for any reason issue shares
("New Shares") of its common stock after the date hereof (except pursuant to an
employee stock option), then (unless an adjustment shall be required pursuant to
Paragraph 7(a) hereof as a result of such issuance) the Company shall grant
Employee an option to acquire such number of additional common shares as would
prevent the reduction of the percentage of the Company's
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<PAGE>
fully diluted common equity which is represented by the portion of the option
set forth in Paragraph 1 hereof which shall not have been exercised prior to the
date of issuance of the New Shares (the "Employee's Percentage"), that is, a
number of additional common shares equal to the excess of (i) the number of New
Shares, divided by 1 minus the Employee's Percentage (expressed as a decimal),
minus (ii) the number of New Shares.
For example, if the Employee has unexercised options which give him an
Employee's Percentage of 1% and the Company sells 9,900,000 shares of common
stock to third parties pursuant to a private placement, the Employee would be
entitled to a new option to purchase 100,000 shares.
Any option granted pursuant to this Paragraph 7(b) shall be evidenced
by a stock option agreement containing all of the terms of this Agreement,
except that (i) Paragraph 10 hereof shall not be included, (ii) the number of
Optioned Shares shall be determined in accordance with this Paragraph 7(b),
(iii) the per share option price shall be equal to the per share issue price of
the New Shares, and (iv) such option shall be an incentive stock option within
the meaning of Section 422 of the Code only if and to the extent so determined
by the Board.
8. Rights prior to exercise of option. The option granted hereunder is not
transferable by Employee except by will or the laws of descent and distribution,
and during his lifetime is exercisable only by him. Employee shall have no
rights as a shareholder in the Optioned Shares until payment of the option price
and delivery to him of such shares as herein provided.
9. Tax obligations. The Company may require as a condition of the exercise
of the
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<PAGE>
option granted hereunder that Employee pay to the Company, in cash, an amount
sufficient to satisfy the Company's obligation, if any, to withhold federal,
state and local taxes with respect to the exercise of such option.
10. Cash bonus. Upon any exercise of the option evidenced hereby on the
terms hereof and payment by Employee of the option price in accordance with
Paragraph 3 hereof (subject to this Paragraph 10), the Company shall grant
Employee a cash bonus equal to $1.719 for each share of common stock acquired
pursuant to such exercise (subject to adjustment pursuant to Paragraph 7(a)
hereof). Such bonus shall be paid by offset against the amount otherwise payable
by Employee under Paragraph 3.
11. Tenure. Nothing herein shall be construed as a right of continued
employment by the Company (or any parent or subsidiary thereof) or as affecting
the Company's right to terminate your employment at any time.
12. Liquidity. If, as of the later of December 31, 1998 or the last day of
any calendar quarter as of which all or a portion of the option evidenced hereby
becomes exercisable as provided in Paragraph 2 hereof (in either case, the
"Liquidity Date"), Stetsys US, Inc. (and/or any other entity which controls, is
controlled by or is under common control with Stetsys US, Inc.) is the
beneficial owner of more than 80% of the Company's outstanding common stock,
Employee shall have the right to require the Company to purchase from Employee
any or all common stock of the Company acquired by Employee hereunder as a
result of such exercisability. For purposes of the above 80% test, there shall
be treated as outstanding all shares of common stock which are subject to
employee stock options issued by the Company, to the extent that such options
are exercisable as of the Liquidity Date. Employee shall exercise
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<PAGE>
that right by written notice to the Company of the number of shares which he
desires to sell no later than the last day of the second calendar quarter
succeeding the Liquidity Date (the "Valuation Date").
The price at which the Company shall purchase such shares shall be
determined as of the end of the Valuation Date by an independent consultant
which is mutually acceptable to the Company and the holders of a majority of the
shares as to which such notices have been given on or before the Valuation Date
by Employee and other optionees under the Plan. In the event that the Company
and the optionees shall not agree upon the identity of such consultant within 30
days after the Valuation Date, the price shall be determined by a nationally
recognized investment banking firm selected by the Board within 45 days after
the Valuation Date. The closing of the purchase shall occur at the principal
office of the Company no later than 30 days after such consultant or firm shall
have reported its determination of the price to the Company and the optionees.
13. Other terms and conditions. In consideration of the grant of the option
made hereunder, Employee agrees (1) not to disclose any trade or secret data or
any other confidential information acquired by him during his employment by the
Company or a subsidiary of the Company, or after the termination of his
employment or his retirement, provided that any information which, at the time
of receipt by Employee or thereafter, becomes known outside the Company through
no wrongful act of Employee shall not constitute confidential information for
purposes of this Agreement; and (2) to abide by all the terms and conditions of
the Plan and such other terms and conditions as may be imposed by the Board.
14. Binding effect. This Agreement shall be binding upon the heirs,
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<PAGE>
executors, administrators, and successors of the parties hereto.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed the day and year first above written.
Radyne Corp.
By______________________________
, its
________________________________
, Employee
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<PAGE>
EXHIBIT 2
STOCK OPTION AGREEMENT
AGREEMENT made as of November 13, 1996, between Radyne Corp., a New
York corporation (hereinafter called the "Company"), and [Robert C. Fitting or
Steven W. Eymann] (hereinafter called "Employee").
WHEREAS the Company considers it desirable and in its best interests
that Employee be given an inducement to acquire a proprietary interest in the
Company as an added incentive to advance the interests of the Company;
WHEREAS on November 13, 1996, the Company's Board of Directors
adopted its 1996 Incentive Stock Option Plan (the "Plan") and on November 13,
1996 determined to grant the option evidenced hereby, which (except to the
extent set forth in Paragraph 6 hereof) is intended to constitute an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"); and
WHEREAS the Company has determined that the fair market value of its
common stock as of the date hereof, after giving effect to a 5-for-1 reverse
split which has been approved by its Board of Directors (the "Board") and which
shall have been approved by its shareholders prior to the option granted
hereunder becoming exercisable, is $2.50 per share;
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
1. Grant of option. The Company hereby grants to Employee the right,
privilege, and option to purchase 215,085 shares of its common stock, par value
$0.002 per share (the "Optioned Shares") at $2.50 per share in the manner and
subject to the conditions hereinafter provided.
<PAGE>
2. Time of exercise of option; milestones. Except as otherwise provided in
this Agreement (including without limitation Paragraph 13) or in the Plan, the
option granted hereunder may be exercised only after the shareholders of the
Company have approved the Plan and then only in accordance with the following
schedule: from and after the date on which the Board in its good faith judgment,
or the Company's independent auditing firm, determines (a) that the Company's
earnings before interest and taxes, determined in accordance with generally
accepted accounting principles consistently applied (but without deduction of
any cash bonus paid or payable pursuant to Paragraph 10 hereof or any other
stock option agreement of even date herewith), for a period composed of four
successive calendar quarters ending no later than June 30, 2001 ("4-Quarter
EBIT"), has exceeded $1,000,000, the option shall thenceforth be exercisable as
to one-third (1/3) of the shares covered thereby, (b) that 4-Quarter EBIT has
exceeded $2,500,000, the option shall thenceforth be exercisable as to
two-thirds (2/3) of the shares originally covered thereby, less any shares as to
which it shall have already been exercised, or (c) that 4-Quarter EBIT has
exceeded $6,000,000, the option shall thenceforth be exercisable as to any
remaining shares covered thereby.
3. Method of exercise. The option shall be exercised by written notice
directed to the Company at its principal place of business, accompanied by cash
in payment of the option price. The Company shall make immediate delivery of the
shares subject to the exercise of the option; provided that if any law or
regulation requires the Company to take any action with respect to such shares
(including but not limited to registration of such shares under the Securities
Act of 1933) before the issuance thereof, or if the Company deems such action to
be appropriate or advisable, then the date of delivery of such shares shall be
extended for the period necessary to take such action.
4. Termination of option. Except as otherwise stated in this Agreement,
the option (to the extent not previously exercised) shall terminate upon the
earlier of:
(a) the expiration of three months from the date on which Employee's
continuous employment by the Company (or by a parent or subsidiary thereof, as
defined in the
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<PAGE>
Plan) is terminated; or
(b) the tenth anniversary of the date of this Agreement.
5. Death, disability or retirement. Notwithstanding Paragraph 4(a) hereof,
but in all events subject to Paragraph 4(b) hereof:
(a) in the event of Employee's death (i) while in the employ of the
Company (or a parent or subsidiary thereof) or (ii) within three months after
the termination of such employment, his estate or any person who acquires the
right to exercise the option by bequest, inheritance, or by reason of the death
of Employee may exercise the unexercised portion of the option, at any time
before the expiration thereof, to the same extent, and only such extent, that
Employee could have exercised the option immediately before his death;
(b) in the event Employee terminates employment with the Company (or
a parent or subsidiary thereof) as a result of permanent and total disability
(as such term is defined in Section 22(e)(3) of the Internal Revenue Code of
1986, as amended) on a date as of which the option has not been fully exercised
Employee may within one year after the date of such termination exercise the
unexercised portion of the option to the same extent, and only such extent, that
Employee could have exercised the option immediately before such termination;
and
(c) in the event Employee retires in accordance with the normal
retirement practices of the Company (or a parent or subsidiary thereof) on a
date as of which the option has not been fully exercised, Employee may within
three months after the date of such retirement exercise the unexercised portion
of the option to the same extent, and only such extent, as Employee could have
exercised the option immediately before such retirement.
6. $100,000 annual limit. In no instance shall incentive stock options
granted to Employee under the Plan (or under any other incentive stock option
plan of the Company or any parent or subsidiary thereof) to acquire common stock
with a fair market value in excess of $100,000 (determined as of the date on
which the options were granted) become exercisable for the first time during any
single calendar year. To the extent (if any) that Employee's incentive stock
options to acquire common stock of the Company (or a parent or subsidiary
thereof) with a
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<PAGE>
fair market value in excess of $100,000 (so determined) would otherwise first
become exercisable during a single calendar year, incentive stock options to
acquire common stock with a fair market value of $100,000 (so determined) shall
become exercisable during such year, and the remaining options are hereby
designated as not constituting incentive stock options and shall nevertheless
become exercisable at the same time. In applying this paragraph, options shall
become exercisable in the order in which they were granted.
7. Change in stock and adjustments.
(a) If all or any portion of the option evidenced hereby is
exercised subsequent to any stock dividend, split-up, recapitalization,
combination or exchange of shares, merger, consolidation, acquisition of
property (other than cash) for stock, separation, reorganization or liquidation
(provided that such transaction has not been approved by the Board on or before
the date of approval of the Plan by the shareholders of the Company) as a result
of which shares of any class shall be issued in respect of outstanding shares of
common stock of the Company or shares of common stock of the Company`shall be
changed into the same or a different number of shares of the same or another
class or classes, the person or persons so exercising such option shall receive,
for the aggregate price payable upon exercise of the option, the aggregate
number and class of shares which, if shares of common stock of the Company had
been purchased at the date of granting of the option for the same aggregate
price (on the basis of the price per share provided in the option) and had not
been disposed of, such person or persons would be holding at the time of such
exercise, as a result of such purchase and any such stock dividend, split-up,
recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property for stock, separation, reorganization or liquidation;
provided, however, that no fractional share shall be issued upon any such
exercise. If any such adjustment would result in the optionee being entitled to
exercise an option with respect to a fractional share, the number of shares
subject to such option shall be reduced to the next lowest number of full
shares. Employee acknowledges that this Agreement, including the figures stated
herein, has been prepared taking into account a 5 for 1 reverse split of the
Company's common stock, which was approved by the Board on November 13, 1996.
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<PAGE>
(b) In the event that the Company shall for any reason issue shares
("New Shares") of its common stock after the date hereof (except pursuant to an
employee stock option), then (unless an adjustment shall be required pursuant to
Paragraph 7(a) hereof as a result of such issuance) the Company shall grant
Employee an option to acquire such number of additional common shares as would
prevent the reduction of the percentage of the Company's fully diluted common
equity which is represented by the portion of the option set forth in Paragraph
1 hereof which shall not have been exercised prior to the date of issuance of
the New Shares (the "Employee's Percentage"), that is, a number of additional
common shares equal to the excess of (i) the number of New Shares, divided by 1
minus the Employee's Percentage (expressed as a decimal), minus (ii) the number
of New Shares.
For example, if the Employee has unexercised options which give him an
Employee's Percentage of 1% and the Company sells 9,900,000 shares of common
stock to third parties pursuant to a private placement, the Employee would be
entitled to a new option to purchase 100,000 shares.
Any option granted pursuant to this Paragraph 7(b) shall be evidenced by a
stock option agreement containing all of the terms of this Agreement, except
that (i) Paragraph 10 hereof shall not be included, (ii) the number of Optioned
Shares shall be determined in accordance with this Paragraph 7(b), (iii) the per
share option price shall be equal to the per share issue price of the New
Shares, and (iv) such options shall be incentive stock options within the
meaning of Section 422 of the Code only if and to the extent so determined by
the Board.
8. Rights prior to exercise of option. The option granted hereunder is not
transferable by Employee except by will or the laws of descent and distribution,
and during his lifetime is exercisable only by him. Employee shall have no
rights as a shareholder in the Optioned Shares until payment of the option price
and delivery to him of such shares as herein provided.
-5-
<PAGE>
9. Tax obligations. The Company may require as a condition of the exercise
of the option granted hereunder that Employee pay to the Company, in cash, an
amount sufficient to satisfy the Company's obligation, if any, to withhold
federal, state and local taxes with respect to the exercise of such option.
10. Cash bonus. Upon any exercise of the option evidenced hereby on the
terms hereof and payment by Employee of the option price in accordance with
Paragraph 3 hereof (subject to this Paragraph 10), the Company shall grant
Employee a cash bonus equal to $1.719 for each share of common stock acquired
pursuant to such exercise (subject to adjustment pursuant to Paragraph 7(a)
hereof). Such bonus shall be paid by offset against the amount otherwise payable
by Employee under Paragraph 3.
11. Tenure. Nothing herein shall be construed as a right of continued
employment by the Company (or any parent or subsidiary thereof) or as affecting
the Company's right to terminate your employment at any time.
12. Liquidity. If, as of the later of December 31, 1998 or the last day of
any calendar quarter as of which all or a portion of the option evidenced hereby
becomes exercisable as provided in Paragraph 2 hereof (in either case, the
"Liquidity Date"), Stetsys US, Inc. (and/or any other entity which controls, is
controlled by or is under common control with Stetsys US, Inc.) is the
beneficial owner of more than 80% of the Company's outstanding common stock,
Employee shall have the right to require the Company to purchase from Employee
any or all common stock of the Company acquired by Employee hereunder as a
result of such exercisability. For purposes of the above 80% test, there shall
be treated as outstanding all shares of common stock which are subject to
employee stock options issued by the Company, to the extent that such options
are exercisable as of the Liquidity Date. Employee shall exercise that right by
written notice to the Company of the number of shares which he desires to sell
no later than the last day of the second calendar quarter succeeding the
Liquidity Date (the "Valuation Date").
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<PAGE>
The price at which the Company shall purchase such shares shall be
determined as of the end of the Valuation Date by an independent consultant
which is mutually acceptable to the Company and the holders of a majority of the
shares as to which such notices have been given on or before the Valuation Date
by Employee and other optionees under the Plan. In the event that the Company
and the optionees shall not agree upon the identity of such consultant within 30
days after the Valuation Date, the price shall be determined by a nationally
recognized investment banking firm selected by the Board within 45 days after
the Valuation Date. The closing of the purchase shall occur at the principal
office of the Company no later than 30 days after such consultant or firm shall
have reported its determination of the price to the Company and the optionees.
13. Voluntary termination of employment. Notwithstanding the foregoing, a
portion of the option evidenced hereby equal to 25% of the portion otherwise
exercisable under Paragraph 2 hereof shall not be exercisable before the
earliest of (i) a determination pursuant to clause (c) of Paragraph 2 that
4-Quarter EBIT has exceeded $6,000,000, (ii) August 16, 2001, or (iii)
Involuntary Termination (as defined below). In the event that Employee ceases to
be employed by the Company before the earlier of (i) a determination pursuant to
clause (c) of Paragraph 2 that 4-Quarter EBIT has exceeded $6,000,000 or (ii)
August 16, 2001, other than due to Involuntary Termination, such 25% portion of
the option shall be forfeited.
For purposes of this Agreement, "Involuntary Termination" means
termination of Employee's employment by the Company (i) which is the result of
his death or permanent and total disability (as defined in Section 22(e)(3) of
the Code) or (ii) which is neither voluntary nor Termination For Cause (as
defined below). For purposes of this Agreement, "Termination For Cause" means
termination upon written notice from the Company, if Employee (a) engages in
willful neglect of, or gross negligence concerning, his duties, or willful
misconduct in the performance of his duties, in either such instance so as to
cause harm to the Company, (b) is proven to have committed fraud,
misappropriation or embezzlement in the performance of his duties as an employee
of the Company, (c) is convicted of any crime which involves moral
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<PAGE>
turpitude, or (d) materially breaches any of the terms of this Agreement if such
breach has caused or will cause actual harm to the Company and Employee shall
have failed to cure his performance within thirty (30) days after written notice
by the Company.
14. Noncompete covenant. Employee covenants and agrees that he will not,
directly or indirectly, for the period commencing on the date hereof and
terminating two (2) years following the termination of the Employee's employment
with the Company (the "Restricted Period") do business with any entity which at
any time during the Restricted Period is a customer or prospective customer of
the Company by: (i) engaging in the business of designing, manufacturing or
selling products used for the transmission and reception of data over satellite
communication networks (the "Business") for the Employee's own account, or (ii)
becoming interested in any person or entity (other than the Company or any
subsidiary or parent thereof) engaged in the Business, as a partner,
shareholder, manager or principal; provided, however, that notwithstanding the
above, Employee may own, directly or indirectly, solely as an investment,
securities of any such entity which are traded on any national securities
exchange or NASDAQ if the Employee (A) is not a controlling person of, or a
member of a group which controls, such entity and (B) does not, directly or
indirectly, own two and one-half percent (2 1/2%) or more of any class of
securities of such entity. This Paragraph 14 shall be of no force or effect (i)
if the Company's shareholders do not approve the Plan, (ii) at any time after
Involuntary Termination, or (iii) if Employee exercises none of the options
granted hereunder.
15. Other terms and conditions. In consideration of the grant of the
option made hereunder, Employee agrees (1) not to disclose any trade or secret
data or any other confidential information acquired by him during his employment
by the Company or a subsidiary of the Company, or after the termination of his
employment or his retirement, provided that any information which, at the time
of receipt by Employee or thereafter, is or becomes known by persons outside the
Company through no wrongful act of Employee shall not constitute confidential
information for purposes of this Agreement; and (2) to abide by all the terms
and conditions of the Plan and such other terms and conditions as may be imposed
by the Board.
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<PAGE>
16. Binding effect. This Agreement shall be binding upon the heirs,
executors, administrators, and successors of the parties hereto.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be executed the day and year first above written.
Radyne Corp.
__________________________ By___________________________
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EXHIBIT 3
STOCK OPTION AGREEMENT
AGREEMENT made as of ___________________, _____, between Radyne
Corp., a New York corporation (hereinafter called the "Company"), and
_____________________ (hereinafter called "Employee").
WHEREAS the Company considers it desirable and in its best interests
that Employee be given an inducement to acquire a proprietary interest in the
Company as an added incentive to advance the interests of the Company;
WHEREAS on November 13, 1996, the Company's Board of Directors
adopted its 1996 Incentive Stock Option Plan (the "Plan") and on ____________,
__ determined to grant the option evidenced hereby, which is intended to
constitute an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS the Company has determined that the fair market value of its
common stock as of the date hereof[, after giving effect to a 5 for 1 reverse
split which has been approved by its Board of Directors (the "Board") and which
shall have been approved by its shareholders prior to the option granted
hereunder becoming exercisable, is $2.50] per share;
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
1. Grant of option. The Company hereby grants to Employee the right,
privilege, and option to purchase ______ shares of its common stock, par value
$0.002 per share (the "Optioned Shares") at[ $2.50] per share in the manner and
subject to the conditions
<PAGE>
hereinafter provided.
2. Time of exercise of option. Except as otherwise provided in this
Agreement or in the Plan, the option granted hereunder may be exercised only
after the shareholders of the Company have approved the Plan and then only in
accordance with the following schedule: the option shall be exercisable as to
25% of the Optioned Shares from and after the first anniversary of the date
hereof and as to an additional 25% from and after each of the second, third and
fourth anniversaries of the date hereof.
3. Method of exercise. The option shall be exercised by written
notice directed to the Company at its principal place of business, accompanied
by cash in payment of the option price. The Company shall make immediate
delivery of the shares subject to the exercise of the option; provided that if
any law or regulation requires the Company to take any action with respect to
such shares (including but not limited to registration of such shares under the
Securities Act of 1933) before the issuance thereof, or if the Company deems
such action to be appropriate or advisable, then the date of delivery of such
shares shall be extended for the period necessary to take such action.
4. Termination of option. Except as otherwise stated in this
Agreement, the option (to the extent not previously exercised) shall terminate
upon the earlier of:
(a) the expiration of three months from the date on which
Employee's continuous employment by the Company (or by a parent or subsidiary
thereof, as defined in the Plan) is terminated; or
(b) the tenth anniversary of the date of this Agreement.
5. Death, disability or retirement. Notwithstanding Paragraph 4(a)
-2-
<PAGE>
hereof, but in all events subject to Paragraph 4(b) hereof:
(a) in the event of Employee's death (i) while in the employ
of the Company (or a parent or subsidiary thereof) or (ii) within three months
after the termination of such employment, his estate or any person who acquires
the right to exercise the option by bequest, inheritance, or by reason of the
death of Employee may exercise the unexercised portion of the option, at any
time before the expiration thereof, to the same extent, and only such extent,
that Employee could have exercised the option immediately before his death;
(b) in the event Employee terminates employment with the
Company (or a parent or subsidiary thereof) as a result of permanent and total
disability (as such term is defined in Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended) on a date as of which the option has not been fully
exercised Employee may within one year after the date of such termination
exercise the unexercised portion of the option to the same extent, and only such
extent, that Employee could have exercised the option immediately before such
termination; and
(c) in the event Employee retires in accordance with the
normal retirement practices of the Company (or a parent or subsidiary thereof)
on a date as of which the option has not been fully exercised, Employee may
within three months after the date of such retirement exercise the unexercised
portion of the option to the same extent, and only such extent, as Employee
could have exercised the option immediately before such retirement.
6. $100,000 annual limit. In no instance shall incentive stock
options granted to Employee under the Plan (or under any other incentive stock
option plan of the Company or any parent or subsidiary thereof) to acquire
common stock with a fair market value in excess of $100,000 (determined as of
the date on which the options were granted) become
-3-
<PAGE>
exercisable for the first time during any single calendar year. Subject to
Paragraph 4(b) hereof, to the extent (if any) that Employee's incentive stock
options to acquire common stock of the Company (or a parent or subsidiary
thereof) with a fair market value in excess of $100,000 (so determined) would
otherwise first become exercisable during a single calendar year, options to
acquire common stock with a fair market value of $100,000 (so determined) shall
become exercisable during such year and the remaining options shall become
exercisable as of the first day of the succeeding calendar year, subject again
to this Paragraph 6. In applying this paragraph, options shall become
exercisable in the order in which they were granted.
7. Change in stock and adjustments. If all or any portion of the
option evidenced hereby is exercised subsequent to any stock dividend, split-up,
recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property (other than cash) for stock, separation, reorganization
or liquidation (provided that such transaction has not been approved by the
Board on or before the date hereof) as a result of which shares of any class
shall be issued in respect of outstanding shares of common stock of the Company
or shares of common stock of the Company`shall be changed into the same or a
different number of shares of the same or another class or classes, the person
or persons so exercising such option shall receive, for the aggregate price
payable upon exercise of the option, the aggregate number and class of shares
which, if shares of common stock of the Company had been purchased at the date
of granting of the option for the same aggregate price (on the basis of the
price per share provided in the option) and had not been disposed of, such
person or persons would be holding at the time of such exercise, as a result of
such purchase and any such stock dividend, split-up, recapitalization,
combination or exchange of shares, merger, consolidation, acquisition of
-4-
<PAGE>
property for stock, separation, reorganization or liquidation; provided,
however, that no fractional share shall be issued upon any such exercise. If any
such adjustment would result in the optionee being entitled to exercise an
option with respect to a fractional share, the number of shares subject to such
option shall be reduced to the next lowest number of full shares. [Employee
acknowledges that this Agreement, including the figures stated herein, has been
prepared taking into account a 5 for 1 reverse split of the Company's common
stock, which was approved by the Board on November 13, 1996.]
8. Rights prior to exercise of option. The option granted hereunder
is not transferable by Employee except by will or the laws of descent and
distribution, and during his lifetime is exercisable only by him. Employee shall
have no rights as a shareholder in the Optioned Shares until payment of the
option price and delivery to him of such shares as herein provided.
9. Tax obligations. The Company may require as a condition of the
exercise of the option granted hereunder that Employee pay to the Company, in
cash, an amount sufficient to satisfy the Company's obligation, if any, to
withhold federal, state and local taxes with respect to the exercise of such
option.
10. Tenure. Nothing herein shall be construed as a right of
continued employment by the Company (or any parent or subsidiary thereof) or as
affecting the Company's right to terminate your employment at any time.
11. Other terms and conditions. In consideration of the grant of the
option made hereunder, Employee agrees (1) not to disclose any trade or secret
data or any other
-5-
<PAGE>
confidential information acquired by him during his employment by the Company or
a subsidiary of the Company, or after the termination of his employment or his
retirement, provided that any information which, at the time of receipt by
Employee or thereafter, is or becomes known by persons outside the Company
through no wrongful act of Employee shall not constitute confidential
information for purposes of this Agreement; and (2) to abide by all the terms
and conditions of the Plan and such other terms and conditions as may be imposed
by the Board.
12. Binding effect. This Agreement shall be binding upon the heirs,
executors, administrators, and successors of the parties hereto.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be executed the day and year first above written.
Radyne Corp.
By___________________________
, its
_____________________________
Employee
-6-
<PAGE>
EXHIBIT 4
STOCK OPTION AGREEMENT
AGREEMENT made as of March 3, 1997, between Radyne Corp., a New York
corporation (hereinafter called the "Company"), and _____________________
(hereinafter called "Employee").
WHEREAS the Company considers it desirable and in its best interests
that Employee be given an inducement to acquire a proprietary interest in the
Company as an added incentive to advance the interests of the Company;
WHEREAS on November 13, 1996, the Company's Board of Directors (the
"Board") adopted its 1996 Incentive Stock Option Plan (the "Plan"), which was
approved by the Company's shareholders on January 8, 1997, and on November 13,
1996 determined to grant to Employee an option (the "Original Rights Option") to
purchase shares of its common stock, such option to expire on March 14, 1997,
which date was intended to succeed the effective date of a rights offering of
common stock to the Company's shareholders approved by the Board on November 13,
1996 (the "Rights Offering");
WHEREAS in light of the fact that the effective date of the Rights
Offering has been deferred beyond March 14, 1997, the Board has determined to
extend the exercise period of the Original Rights Option and replace such option
with the option evidenced hereby, which (except as provided below) is intended
to constitute an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS the Company has determined that the fair market value of its
common stock, as of the date hereof, is $2.50 per share;
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
1. Grant of option. In place of the Original Rights Option, which
the Company and Employee agree is null and void, the Company hereby grants to
Employee the right, privilege and option to purchase ______ shares of its common
stock, par value $0.002 per
<PAGE>
share (the "Optioned Shares") at $2.50 per share in the manner and subject to
the conditions hereinafter provided.
2. Time of exercise of option. Except as otherwise provided in this
Agreement or in the Plan, the option granted hereunder may be exercised only (i)
after the later of April 15, 1997 or the effective date of the Company's
registration statement filed with the Securities and Exchange Commission in
connection with the Rights Offering and (ii) on or before the earlier of May 30,
1997 or the Expiration Date (as defined in such registration statement) of the
Rights Offering.
3. Method of exercise. The option shall be exercised by written
notice directed to the Company at its principal place of business, accompanied
by cash in payment of the option price. The Company shall make immediate
delivery of the shares subject to the exercise of the option; provided that if
any law or regulation requires the Company to take any action with respect to
such shares (including but not limited to registration of such shares under the
Securities Act of 1933) before the issuance thereof, or if the Company deems
such action to be appropriate or advisable, then the date of delivery of such
shares shall be extended for the period necessary to take such action.
4. Termination of option. Except as otherwise stated in this
Agreement, the option (to the extent not previously exercised or expired as
provided in Paragraph 2 above) shall terminate upon the date on which Employee's
continuous employment by the Company (or by a parent or subsidiary thereof, as
defined in the Plan) is terminated.
5. Death, disability or retirement. Notwithstanding Paragraph 4
hereof, but in all events subject to Paragraph 2 hereof:
(a) in the event of Employee's death while in the employ of
the Company (or a parent or subsidiary thereof), his estate or any person who
acquires the right to exercise the option by bequest, inheritance, or by reason
of the death of Employee may exercise the unexercised portion of the option to
the same extent, and only such extent, that Employee could have exercised the
option immediately before his death;
(b) in the event Employee terminates employment with the
Company (or a parent or subsidiary thereof) as a result of permanent and total
disability (as such term is
-2-
<PAGE>
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended) on
a date as of which the option has not been fully exercised, Employee may
exercise the unexercised portion of the option to the same extent, and only such
extent, that Employee could have exercised the option immediately before such
termination; and
(c) in the event Employee retires in accordance with the
normal retirement practices of the Company (or a parent or subsidiary thereof)
on a date as of which the option has not been fully exercised, Employee may
exercise the unexercised portion of the option to the same extent, and only such
extent, as Employee could have exercised the option immediately before such
retirement.
6. $100,000 annual limit. In no instance shall incentive stock
options granted to Employee under the Plan (or under any other incentive stock
option plan of the Company or any parent or subsidiary thereof) to acquire
common stock with a fair market value in excess of $100,000 (determined as of
the date on which the options were granted) become exercisable for the first
time during any single calendar year. To the extent (if any) that Employee's
incentive stock options to acquire common stock of the Company (or a parent or
subsidiary thereof) with a fair market value in excess of $100,000 (so
determined) would otherwise first become exercisable during a single calendar
year, incentive stock options to acquire common stock with a fair market value
of $100,000 (so determined) shall become exercisable during such year, and the
remaining options are hereby designated as not constituting incentive stock
options and shall nevertheless become exercisable at the same time. In applying
this paragraph, options shall become exercisable in the order in which they were
granted, and the options granted hereunder shall be treated as the first options
granted.
7. Change in stock and adjustments. If all or any portion of the
option evidenced hereby is exercised subsequent to any stock dividend, split-up,
recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property (other than cash) for stock, separation, reorganization
or liquidation (provided that such transaction has not been approved by the
Board on or before the date hereof) as a result of which shares of any class
shall be issued in respect of outstanding shares of common stock of the Company
or shares of common stock of the Company shall be changed into the same or a
different number of shares of
-3-
<PAGE>
the same or another class or classes, the person or persons so exercising such
option shall receive, for the aggregate price payable upon exercise of the
option, the aggregate number and class of shares which, if shares of common
stock of the Company had been purchased at the date of granting of the option
for the same aggregate price (on the basis of the price per share provided in
the option) and had not been disposed of, such person or persons would be
holding at the time of such exercise, as a result of such purchase and any such
stock dividend, split-up, recapitalization, combination or exchange of shares,
merger, consolidation, acquisition of
-4-
<PAGE>
property for stock, separation, reorganization or liquidation; provided,
however, that no fractional share shall be issued upon any such exercise. If any
such adjustment would result in the optionee being entitled to exercise an
option with respect to a fractional share, the number of shares subject to such
option shall be reduced to the next lowest number of full shares. Employee
acknowledges that this Agreement, including the figures stated herein, has been
prepared taking into account a 1 for 5 reverse split of the Company's common
stock, which was approved by the Board on November 13, 1996.
8. Rights prior to exercise of option. The option granted hereunder
is not transferable by Employee except by will or the laws of descent and
distribution, and during his lifetime is exercisable only by him. Employee shall
have no rights as a shareholder in the Optioned Shares until payment of the
option price and delivery to him of such shares as herein provided.
9. Tax obligations. The Company may require as a condition of the
exercise of the option granted hereunder that Employee pay to the Company, in
cash, an amount sufficient to satisfy the Company's obligation, if any, to
withhold federal, state and local taxes with respect to the exercise of such
option.
10. Tenure. Nothing herein shall be construed as a right of
continued employment by the Company (or any parent or subsidiary thereof) or as
affecting the Company's right to terminate Employee's employment at any time.
11. Other terms and conditions. In consideration of the grant of the
option made hereunder, Employee agrees (1) not to disclose any trade or secret
data or any other
-5-
<PAGE>
confidential information acquired by him during his employment by the Company or
a subsidiary of the Company, or after the termination of his employment or his
retirement, provided that any information which, at the time of receipt by
Employee or thereafter, is or becomes known by persons outside the Company
through no wrongful act of Employee shall not constitute confidential
information for purposes of this Agreement; and (2) to abide by all the terms
and conditions of the Plan and such other terms and conditions as may be imposed
by the Board.
12. Binding effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be executed the day and year first above written.
Radyne Corp.
By________________________________
,its
________________________________
Employee
-6-
<PAGE>
EXHIBIT 5
[LETTERHEAD OF BROCK, FENSTERSTOCK, SILVERSTEIN, MCAULIFFE & WADE, LLC]
March 11, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Radyne Corp.
Registration Statement on Form S-8
----------------------------------
Gentlemen:
As counsel to Radyne Corp., a New York corporation (the "Company"), with
respect to its Registration Statement on Form S-8 being filed with the
Securities and Exchange Commission, relating to 1,282,042 shares of its Common
Stock, par value $.002 (the "Shares") authorized by the Company's 1996 Incentive
Stock Option Plan (the "Plan"), we have reviewed the Plan, the Company's
Certificate of Incorporation and By-Laws and such other documents as we deemed
relevant in connection with this opinion.
Based upon the foregoing, it is our opinion that the Shares, when issued
in accordance with the terms of the Plan, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the above
mentioned Registration Statement.
Very truly yours,
BROCK, FENSTERSTOCK, SILVER-
STEIN, McAULIFFE & WADE, LLC
<PAGE>
EXHIBIT 24(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Radyne Corp. on Form S-8 of our report dated August 23, 1996, except as to Note
12 to the financial statements, the date of which is December 13, 1996 (which
report expresses an unqualified opinion and includes an explanatory paragraph
relating to the United States Bankruptcy Court of the Eastern District of New
York entering an order confirming the Company's plan of reorganization which
became effective at the close of business on December 16, 1994), appearing in
the Annual Report on Form 10-KSB for the year ended June 30, 1996.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
March 7, 1997
