<PAGE>
<PAGE>
As filed with the Securities and Exchange Commission on September 13, 1996
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
NAI TECHNOLOGIES, INC.
-----------------------------------------------------------
(Exact name of registrant as specified in its charter)
New York 11-1798773
--------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2405 Trade Centre Avenue
Longmont, Colorado 80503
--------------------------------- ----------------------
(Address of Principal (Zip Code)
Executive Offices)
NAI Technologies, Inc.
1996 Stock Option Plan
-----------------------------------------------------------
(Full title of the plan)
Richard A. Schneider
NAI Technologies, Inc.
2405 Trade Centre Avenue
Longmont, Colorado 80503
-----------------------------------------------------------
(Name and address of agent for service)
(303) 776-5674
-----------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
Proposed Proposed Amount
maximum maximum of
Amount offering aggregate regis-
Title of securities to be price offering tration
to be registered registered per share(1) price(1) fee
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 400,000 shs. $3.5625 $1,425,000 $491.38
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee on the basis of the average of the high and low prices
of the Common Stock as reported on The Nasdaq Stock Market on September
10, 1996.
<PAGE>
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated in this registration statement
(this "Registration Statement") by reference:
(a) The Annual Report of NAI Technologies, Inc., a New York
corporation (the "Company"), on Form 10-K for the fiscal year ended December 31,
1995;
(b)(1) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 30, 1996;
(b)(2) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended June 29, 1996;
(b)(3) The Company's Current Report on Form 8-K dated February
15, 1996;
(b)(4) The Company's Current Report on Form 8-K dated May 9,
1996; and
(c) The Company's Registration Statement on Form 10 filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on May 7,
1969 (Registration No. 0982125).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part of the
Registration Statement from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The financial statements and schedules of the Company as of
December 31, 1995 and 1994 and for each of the years in the three-year period
ended December 31, 1995 have been incorporated by reference herein in reliance
upon the reports of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
II-1
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<PAGE>
The legality of the issuance of the shares of Common Stock being
registered by this Registration Statement will be passed upon for the Company by
Whitman Breed Abbott & Morgan, New York, New York.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721 through 726 of the New York Business Corporation Law
provide the following with respect to the indemnification of directors, officers
and employees:
SS. 721. NONEXCLUSIVITY OF STATUTORY PROVISIONS FOR
INDEMNIFICATION OF DIRECTORS AND OFFICERS.- The indemnification and
advancement of expenses granted pursuant to, or provided by, this
article shall not be deemed exclusive of any other rights to which a
director or officer seeking indemnification or advancement of expenses
may be entitled, whether contained in the certificate of incorporation
or the by-laws or, when authorized by such certificate of incorporation
or by-laws, (i) a resolution of shareholders, (ii) a resolution of
directors, or (iii) an agreement providing for such indemnification,
provided that no indemnification may be made to or on behalf of any
director or officer if a judgment or other final adjudication adverse to
the director or officer establishes that his acts were committed in bad
faith or were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated, or that he personally
gained in fact a financial profit or other advantage to which he was not
legally entitled. Nothing contained in this article shall affect any
rights to indemnification to which corporate personnel other than
directors and officers may be entitled by contract or otherwise under
law.
SS. 722. AUTHORIZATION FOR INDEMNIFICATION AND OFFICERS. (a) A
corporation may indemnify any person made, or threatened to be made, a
party to an action or proceeding (other than one by or in the right of
the corporation to procure a judgment in its favor), whether civil or
criminal, including an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the corporation served in
any capacity at the request of the corporation, by reason of the fact
that he, his testator or intestate, was a director or officer of the
corporation, or served such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any
capacity, against judgments, fines, amounts paid in settlement and
reasonable expenses, including
II-2
<PAGE>
<PAGE>
attorneys' fees actually and necessarily incurred as a result of such
action or proceeding, or any appeal therein, if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be
in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, not opposed to, the best interests of the corporation and,
in criminal actions or proceedings, in addition, had no reasonable cause
to believe that his conduct was unlawful.
(b) The termination of any such civil or criminal action or
proceeding by judgment, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not in itself create a presumption
that any such director or officer did not act, in good faith, for a
purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise, not opposed to, the
best interest of the corporation or that he had reasonable cause to
believe that his conduct was unlawful.
(c) A corporation may indemnify any person made, or threatened to
be made, a party to an action by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he, his
testator or intestate, is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of any other corporation of any type or kind,
domestic or foreign, of any partnership, joint venture, trust, employee
benefit plan or other enterprise, against amounts paid in settlement and
reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense or settlement of such
action, or in connection with an appeal therein, if such director or
officer acted, in good faith, for a purpose which he reasonably believed
to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, not opposed to, the best interests of the corporation,
except that no indemnification under this paragraph shall be made in
respect of (1) a threatened action, or a pending action which is settled
or otherwise disposed of, or (2) any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the court in which the action was
brought, or, if no action was brought, any court of competent
jurisdiction, determines upon
II-3
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<PAGE>
application that, in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such portion
of the settlement amount and expenses as the court deems proper.
(d) For the purpose of this section, a corporation shall be
deemed to have requested a person to serve an employee benefit plan
where the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such person
to the plan or participants or beneficiaries of the plan; excise taxes
assessed on a person with respect to an employee benefit plan pursuant
to applicable law shall be considered fines; and action taken or omitted
by a person with respect to an employee benefit plan in the performance
of such person's duties for a purpose reasonably believed by such
person to be in the interest of the participants and beneficiaries of
the plan shall be deemed to be for a purpose which is not opposed to the
best interests of the corporation.
SS. 723. PAYMENT OF INDEMNIFICATION OTHER THAN BY COURT AWARD.
(a) A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character
described in section 722 shall be entitled to indemnification as
authorized in such section.
(b) Except as provided in paragraph (a), any indemnification
under section 722 or otherwise permitted by section 721, unless ordered
by a court under section 724 (Indemnification of directors and officers
by a court) shall be made by the corporation, only if authorized in the
specific case:
(1) By the board acting by a quorum consisting of
directors who are not parties to such action or proceeding upon a
finding that the director or officer has met the standard of
conduct set forth in section 722 or established pursuant to
section 721, as the case may be, or,
(2) If a quorum under subparagraph (1) is not obtainable
or, even if obtainable, a quorum of disinterested directors so
directs:
(A) By the board upon the opinion in writing of independent legal
counsel that indemnification is proper in the circumstances because the
applicable standard of conduct set forth in such sections has been met
by such director or officer, or
II-4
<PAGE>
<PAGE>
(B) By the shareholders upon a finding that the director or
officer has met the applicable standard of conduct set forth in such
sections.
(c) Expenses incurred in defending a civil or criminal action or
proceeding may be paid by the corporation in advance of the final
disposition of such action or proceeding upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount as, and
to the extent, required by paragraph (a) of section 725.
SS. 724. INDEMNIFICATION OF DIRECTORS AND OFFICERS BY A COURT.
(a) Notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary resolution of the board or of
the shareholders in the specific case under section 723 (Payment of
indemnification other than by court award), indemnification shall be
awarded by a court to the extent authorized under section 722
(Authorization for indemnification of directors and officers), and
paragraph (a) of section 723. Application therefor may be made, in every
case, either:
(1) In the civil action or proceeding in which the
expenses were incurred or other amounts were paid, or
(2) To the supreme court in a separate proceeding, in
which case the application shall set forth the disposition of any
previous application made to any court for the same or similar
relief and also reasonable cause for the failure to make
application for such relief in the action or proceeding in which
the expenses were incurred or other amounts were paid.
(b) The application shall be made in such manner and form as may
be required by the applicable rules of court or, in the absence thereof,
by direction of a court to which it is made. Such application shall be
upon notice to the corporation. The court may also direct that notice be
given at the expense of the corporation to the shareholders and such
other persons as it may designate in such manner as it may require.
(c) Where indemnification is sought by judicial action, the court
may allow a person such reasonable expenses, including attorneys' fees,
during the pendency of the litigation as are necessary in connection
with his defense therein, if the court shall find that the defendant has
by his pleadings or during
II-5
<PAGE>
<PAGE>
the course of the litigation raised genuine issues of fact or law.
SS. 725. OTHER PROVISIONS AFFECTING INDEMNIFICATION OF DIRECTORS
AND OFFICERS. (a) All expenses incurred in defending a civil or criminal
action or proceeding which are advanced by the corporation under
paragraph (c) of section 723 (Payment of indemnification other than by
court award) or allowed by a court under paragraph (c) of section 724
(Indemnification of directors and officers by a court) shall be repaid
in case the person receiving such advancement or allowance is ultimately
found, under the procedure set forth in this article, not to be entitled
to indemnification or, where indemnification is granted, to the extent
the expenses so advanced by the corporation or allowed by the court
exceed the indemnification to which he is entitled.
(b) No indemnification, advancement or allowance shall be made
under this article in any circumstance where it appears:
(1) That the indemnification would be inconsistent with
the law of the jurisdiction of incorporation of a foreign
corporation which prohibits or otherwise limits such
indemnification;
(2) That the indemnification would be inconsistent with a
provision of the certificate of incorporation, a by-law, a
resolution of the board or of the shareholders, an agreement or
other proper corporate action, in effect at the time of the
accrual of the alleged cause of action asserted in the threatened
or pending action or proceeding in which the expenses were
incurred or other amounts were paid, which prohibits or otherwise
limits indemnification; or
(3) If there has been a settlement approved by the court,
that the indemnification would be inconsistent with any condition
with respect to indemnification expressly imposed by the court in
approving the settlement.
(c) If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the
shareholders, the corporation shall, not later than the next annual
meeting of shareholders unless such meeting is held within three months
from the date of such payment, and, in any event, within fifteen months
from the date of such payment, mail to
II-6
<PAGE>
<PAGE>
its shareholders of record at the time entitled to vote for the election
of directors a statement specifying the persons paid, the amounts paid,
and the nature and status at the time of such payment of the litigation
or threatened litigation.
(d) If any action with respect to indemnification of directors
and officers is taken by way of amendment of the by-laws, resolution of
directors, or by agreement, then the corporation shall, not later than
the next annual meeting of shareholders, unless such meeting is held
within three months from the date of such action, and, in any event,
within fifteen months from the date of such action, mail to its
shareholders of record at the time entitled to vote for the election of
directors a statement specifying the action taken.
(e) Any notification required to be made pursuant to the
foregoing paragraph (c) or (d) of this section by any domestic mutual
insurer shall be satisfied by compliance with the corresponding
provisions of section one thousand two hundred sixteen of the insurance
law.
(f) The provisions of this article relating to indemnification of
directors and officers and insurance therefor shall apply to domestic
corporations and foreign corporations doing business in this state,
except as provided in section 1320 (Exemption from certain provisions).
SS. 726. INSURANCE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Subject to paragraph (b), a corporation shall have power to purchase
and maintain insurance:
(1) To indemnify the corporation for any obligation which
it incurs as a result of the indemnification of directors and
officers under the provisions of this article, and
(2) To indemnify directors and officers in instances in
which they may be indemnified by the corporation under the
provisions of this article, and
(3) To indemnify directors and officers in instances in
which they may not otherwise be indemnified by the corporation
under the provisions of this article provided the contract of
insurance covering such directors and officers provides, in a
manner acceptable to the superintendent of insurance, for a
retention amount and for co-insurance.
II-7
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<PAGE>
(b) No insurance under paragraph (a) may provide for any payment,
other than cost of defense, to or on behalf of any director or officer:
(1) If a judgment or other final adjudication adverse to
the insured director or officer establishes that his acts of
active and deliberate dishonesty were material to the cause of
action so adjudicated, or that he personally gained in fact a
financial profit or other advantage to which he was not legally
entitled, or
(2) In relation to any risk the insurance of which is
prohibited under the insurance law of this state.
(c) Insurance under any or all subparagraphs of paragraph (a) may
be included in a single contract or supplement thereto. Retrospective
rated contracts are prohibited.
(d) The corporation shall, within the time and to the persons
provided in paragraph (c) of section 725 (Other provisions affecting
indemnification of directors or officers), mail a statement in respect
of any insurance it has purchased or renewed under this section,
specifying the insurance carrier, date of the contract, cost of the
insurance, corporate positions insured, and a statement explaining all
sums, not previously reported in a statement to shareholders, paid under
any indemnification insurance contract.
(e) This section is the public policy of this state to spread the
risk of corporate management, notwithstanding any other general or
special law of this state or of any other jurisdiction including the
federal government.
Paragraph 15 of the Restated Certificate of Incorporation of the
Company provides as follows:
The liability to the Corporation and its shareholders of each and
every person who is at any time a director of the Corporation, in such
person's capacity as such director, is, and shall be, limited and
eliminated to the full extent authorized or permitted by law (as now or
hereafter in effect). Any repeal or modification of this Paragraph shall
not adversely affect any right or protection of any person existing at
the time of such repeal or modification.
II-8
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<PAGE>
Section 6.1 of the Amended and Restated By-laws of the Company
provides as follows:
Section 6.1. Indemnification. To the full extent authorized or
permitted by law (as now or hereafter in effect), the Corporation shall
indemnify any person who shall at any time be made or be threatened to
be made a party to or otherwise involved in any civil or criminal action
or proceeding by reason of the fact that such person, or such person's
testator or intestate, is or was a director or officer of the
Corporation or by reason of the fact that such director or officer, at
the request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, and the Corporation shall pay the expenses
incurred by any such person in defending any such action or proceeding
as such expenses are incurred, including in advance of the final
disposition of such action or proceeding. Nothing contained herein shall
affect any rights to indemnification to which employees other than
directors and officers may be entitled by law. No amendment or repeal of
this Section 6.1 shall apply to or have any effect on any right to
indemnification or advancement of expenses provided hereunder with
respect to any acts or omissions occurring prior to such amendment or
repeal.
In furtherance and not in limitation of the powers conferred by
statute, the Corporation may enter into agreements providing
indemnification to the full extent authorized or permitted by law (as
now or hereafter in effect) and including as part thereof provisions
with respect to the creation of trust funds, the granting of security
interests and the use of other means (including, without limitation,
letters of credit, surety bonds and other similar arrangements) to
ensure the payment of such amounts as may become necessary to effect
indemnification as provided therein or elsewhere.
The Company has purchased insurance to indemnify its directors
and officers against liabilities incurred as a result of serving in such
capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-9
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<PAGE>
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
-------- --------
<C> <S>
5 Opinion of Whitman Breed
Abbott & Morgan re legality,
including consent of such
counsel.
23(a) Consent of KPMG Peat Marwick
LLP.
(b) The consent of Whitman Breed Abbott
& Morgan is contained in the opinion
filed as Exhibit 5 to this
Registration Statement.
24 Power of Attorney (included on
page II-13 of this Registration
Statement on Form S-8).
99.1 1996 Stock Option Plan.
</TABLE>
II-10
<PAGE>
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the "Securities
Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment hereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company'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.
II-11
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<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and persons controlling
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 Securities Act and will be governed by the final adjudication
of such issue.
II-12
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 11th day of
September, 1996.
NAI TECHNOLOGIES, INC.
By /s/Robert A. Carlson
---------------------------------
Robert A. Carlson
Chairman and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Robert A. Carlson and Richard A.
Schneider, 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 such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement on Form S-8 has been
II-13
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<PAGE>
signed below by the following persons in the capacities indicated on this 11th
day of September, 1996.
<TABLE>
<CAPTION>
Name Title
---- -----
<S> <C>
/s/Robert A. Carlson Chairman and Chief Executive
- ---------------------------------- Officer (principal executive
Robert A. Carlson officer) and Director
/s/Richard A. Schneider Executive Vice President,
- ---------------------------------- Treasurer, Chief Financial
Richard A. Schneider Officer and Secretary
(principal financial
and accounting officer) and
Director
Director
- ----------------------------------
Stephen Barre
Director
- ----------------------------------
Edward L. Hennessy
/s/Charles S. Holmes Director
- ----------------------------------
Charles S. Holmes
/s/C. Shelton James Director
- ----------------------------------
C. Shelton James
Director
- ----------------------------------
Dennis McCarthy
</TABLE>
II-14
STATEMENT OF DIFFERENCES
The section symbol shall be expressed as SS.
<PAGE>
<PAGE>
Exhibit 5
Whitman Breed Abbott & Morgan
200 Park Avenue
New York, NY 10166
September 13, 1996
NAI Technologies, Inc.
2405 Trade Centre Avenue
Longmont, Colorado 80503
Re: NAI Technologies, Inc.
----------------------
Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), filed by NAI Technologies, Inc., a New York corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission"). The
Registration Statement covers 400,000 shares (the "Shares") of the Company's
common stock, par value $.10 per share, to be issued and sold by the Company to
key management employees and directors pursuant to the Company's 1996 Stock
Option Plan (the "Plan").
We have examined the original, or a photostatic or certified
copy, of such records of the Company, certificates of officers of the Company
and of public officials and such other documents as we have deemed relevant and
necessary as the basis for the opinion set forth below. In such examination, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon our examination mentioned above, subject to the
assumptions stated and relying on statements of fact contained in the documents
that we have examined, we are of the opinion that the Shares proposed to be
issued and sold by the Company have been duly authorized for issuance and that
the Shares, when issued to and paid for by the purchasers in accordance with the
terms of the Plan, will have been validly issued and will be fully paid and
non-assessable.
<PAGE>
<PAGE>
We consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the General Rules and Regulations of the Commission.
Very truly yours,
WHITMAN BREED ABBOTT & MORGAN
-2-
<PAGE>
<PAGE>
Exhibit 23(a)
INDEPENDENT AUDITORS CONSENT
The Board of Directors
NAI Technologies, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-8 of NAI Technologies, Inc. of our report dated March 1, 1996, relating
to the consolidated balance sheets of NAI Technologies, Inc. and subsidiaries
as of December 31, 1995, and 1994, and the related consolidated statements of
operations, shareholder's equity, and cash flows for each of the years in the
three-year period ended December 31, 1995, and related schedule, and to the
reference to our firm under the heading 'Experts'.
KPMG PEAT MARWICK LLP
Boulder, Colorado
September 11, 1996
<PAGE>
<PAGE>
Exhibit 99.1
NAI TECHNOLOGIES, INC.
1996 STOCK OPTION PLAN
1. PURPOSE. The purpose of the NAI Technologies, Inc. 1996 Stock Option
Plan (the "Plan") is to advance the interests of NAI Technologies, Inc. ("NAI")
and its subsidiaries and affiliates (all such companies being hereinafter
referred to collectively as the "Company") by providing, through the grant of
options to purchase shares of NAI common stock, a larger personal and financial
interest in the success of the Company to key management employees and directors
upon whose judgment, interest and special efforts the Company is largely
dependent for the successful conduct of its operations. It is believed that the
acquisition of such interests will stimulate the efforts of such key management
employees and directors on behalf of the Company and strengthen their desire to
remain in the employ of the Company.
As used herein, the term "subsidiary" shall mean any corporation of
which NAI or another subsidiary owns stock possessing 50% or more of the total
combined voting power of all classes of stock, and the term "affiliate" shall
mean any entity in which NAI has a significant equity interest or management
control as determined by the Board of Directors.
2. ADMINISTRATION. The Plan shall be administered by a committee (the
"Committee"), no member of which shall be eligible for options under the Plan,
consisting of three members of the Board of Directors of NAI (the "Board"). The
Committee shall be constituted in such a manner as to satisfy the requirements
of applicable law, the provisions of Rule 16b-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or any successor rule. The
Committee shall be appointed, and vacancies shall be filled, by the Board. The
Committee shall have full power and authority to (i) select the key management
employees and directors of the Company to whom options may be granted under the
Plan; (ii) determine the number of shares subject to each option and the terms
and conditions, not inconsistent with the provisions of the Plan, governing such
option; (iii) interpret the Plan and any option granted thereunder; (iv)
establish such rules and regulations as it deems appropriate for the
administration of the Plan; and (v) take such other action as it deems necessary
or desirable for the administration of the Plan. The Committee's interpretation
and construction of any provision of the Plan or the terms of any option shall
be conclusive and binding on all parties.
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3. PARTICIPANTS. Only directors and key management employees of the
Company shall be eligible to be granted options under the Plan.
Nothing contained in the Plan, or in any option granted pursuant to the
Plan, shall confer upon any employee or director any right to the continuation
of his employment or directorship.
4. EFFECTIVENESS AND TERMINATION OF THE PLAN. The Plan is effective as
of March 11, 1996, the date of its adoption by the Board of Directors, and will
terminate on March 11, 2001 or such earlier time as the Board of Directors may
determine. Any option outstanding under the Plan at the time of its termination
shall remain in effect in accordance with its terms and conditions and those of
the Plan.
5. THE SHARES. Options may be granted from time to time under the Plan
for the purchase, in the aggregate, of not more than 400,000 shares of common
stock, $.10 par value of the Company ("Common Stock") (subject to adjustment
pursuant to section 14). Such shares of Common Stock may be set aside out of the
authorized but unissued shares of Common Stock not reserved for any other
purpose or out of previously issued shares acquired by the Company and held in
its treasury. Any shares of Common Stock which, by reason of the termination or
expiration of an option or otherwise, are no longer subject to purchase pursuant
to an option granted under the Plan, may again be subjected to an option under
the Plan.
6. STATUS OF OPTIONS. Options granted under the Plan are nonstatutory
options not intended to qualify as incentive stock options under Section 422 of
the Internal Revenue Code.
7. OPTION PRICE. The price at which shares of Common Stock may be
purchased upon the exercise of an option granted under the Plan shall be the
fair market value of such shares on the date of grant of such option.
8. TERM AND EXERCISABILITY OF OPTIONS. Options may be granted for terms
of not more than ten years and shall be exercisable in accordance with such
terms and conditions as are set forth in the option agreements evidencing the
grant of such options.
Except as otherwise determined by the Committee pursuant to Section 9,
no option granted under the Plan shall be exercisable by a participant during
the first year after the date of grant of such option. In no event shall an
option be exercised or shares be issued pursuant to an
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option if any requisite approval or consent of any governmental authority having
jurisdiction over the exercise of options or the issue and sale of the Common
Stock shall not have been secured.
9. TERMINATION OF EMPLOYMENT. Except as otherwise provided in this
Section 9, no person may exercise an option more than 30 days (or such longer
period as the Committee may establish) after the first date on which he is
neither an employee nor a director of the Company. If a participant ceases to be
an employee or director of the Company by reason of death, disability, or an
employee's retirement at or after his normal retirement date under the Company's
pension plan in which he is a participant, he or his estate may exercise any
options held by him within 12 months after the later of the date he ceases to be
an employee or the date he ceases to be a director of the Company.
Except as otherwise determined by the Committee, options may be
exercised following the termination of a participant's employment or
directorship with respect only to such number of shares of Common Stock as to
which the right of exercise had accrued on or before the last day on which he
was either an employee or a director of the Company. In no event may an option
be exercised after the expiration of the term of such option.
10. PAYMENT. Full payment of the purchase price for shares of Common
Stock purchased upon the exercise, in whole or in part, of an option granted
under the Plan shall be made at the time of such exercise. The purchase price
may be paid in cash or in shares of Common Stock valued at the fair market value
thereof on the date of purchase, or in a combination thereof. Alternatively, an
option may be exercised in whole or in part by delivering a properly executed
exercise notice together with irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds necessary to pay the
purchase price and applicable withholding taxes, and such other documents as the
Committee may determine.
No shares of Common Stock shall be issued or transferred to a
participant until full payment therefor has been made, and a participant shall
have none of the rights of a stockholder until shares are issued or transferred
to him.
11. NONTRANSFERABILITY. Options granted under the Plan shall not be
transferable other than by will or by the laws of descent and distribution, and,
during a participant's lifetime, shall be exercisable only by him.
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12. SURRENDER OF OPTIONS. The Committee may require the surrender of
outstanding options as a condition to the granting of new options.
13. ISSUANCE OF SHARES. If a participant so requests, shares purchased
upon the exercise of an option may be issued or transferred in the name of the
participant and another person jointly with the right of survivorship.
14. CHANGES IN CAPITAL STRUCTURE, ETC. In the event of any change in the
outstanding Common Stock by reason of any stock dividend, stock split,
combination of shares, recapitalization, or other similar change in the capital
stock of NAI, or in the event of the merger or consolidation of NAI into or with
any other corporation or the reorganization of NAI, the number of shares covered
by each outstanding option granted under the Plan, the price per share thereof,
and the total number of shares for which options may be granted under the Plan
shall be adjusted by the Board in such manner as it determines to be appropriate
and equitable.
15. AMENDMENT. The Board may amend the Plan in any respect from time to
time; provided, however, that, no amendment shall become effective unless
approved by affirmative vote of the Company's shareholders if such approval is
necessary for the continued validity of the Plan or if the failure to obtain
such approval would adversely affect the compliance of the Plan with Rule 16b-3
under the Exchange Act or any other rule or regulation. No amendment may,
without the consent of a participant, impair his rights under any option
previously granted under the Plan.
The Board shall have the power, in the event of any disposition of
substantially all of the assets of the Company, its dissolution, any merger or
consolidation of the Company with or into any other corporation, or the merger
or consolidation of any other corporation into the Company, to amend all
outstanding options to permit their exercise prior to the effectiveness of any
such transaction and to terminate such options as of such effectiveness. If the
Board shall exercise such power, all options then outstanding shall be deemed to
have been amended to permit the exercise thereof in whole or in part by the
holder at any time or from time to time as determined by the Board prior to the
effectiveness of such transaction and such options shall be deemed to terminate
upon such effectiveness.
16. LEGAL AND REGULATORY REQUIREMENTS. No option shall be exercisable
and no shares will be delivered under the Plan except in compliance with all
applicable federal and state laws and regulations including, without
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limitation, compliance with withholding tax requirements and with the rules of
all domestic stock exchanges on which the Common Stock may be listed. Any share
certificate issued to evidence shares for which an option is exercised may bear
such legends and statements as the Committee shall deem advisable to assure
compliance with federal and state laws and regulations. No option shall be
exercisable, and no shares will be delivered under the Plan, until the Company
has obtained consent or approval from regulatory bodies, federal or state,
having jurisdiction over such matters as the Committee may deem advisable.
In the case of the exercise of an option by a person or estate acquiring
the right to exercise the option by bequest or inheritance, the Committee may
require reasonable evidence as to the ownership of the option and may require
consents and releases of taxing authorities that it may deem advisable.
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