As filed with the Securities and Exchange Commission on May 13, 1997
Reg. No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
the Securities Act of 1933
Tracor, Inc.
(Exact name of registrant as specified in its charter)
Delaware 74-2618088
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6500 Tracor Lane, Austin, Texas 78725-2000
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated
1995 Stock Plan for Employees of Tracor, Inc. and Subsidiaries
(Full title of the plan)
Robert K. Floyd
Vice President and Chief Financial Officer
Tracor, Inc.
6500 Tracor Lane
Austin, Texas 78725
512/929-4680
(Name, address, and telephone number,
including area code, of agent for service)
Copy to:
Russell E. Painton
Vice President and General Counsel
Tracor, Inc.
6500 Tracor Lane
Austin, Texas 78725
512/929-2230
Calculation of Registration Fee
<TABLE>
<S> <C> <C> <C> <C>
Title of Amount to be Proposed Maximum Proposed Maximum Amount of
securities to Registered (1) Offering Price Aggregate Registration
be registered per share (2) Offering Price(2) Fee
Common Stock 1,000,000 $23.00 $23,000,000 $7,187.50
par value $.01
per share
</TABLE>
1 The number of shares of Common Stock registered herein is
subject to adjustment to prevent dilution resulting from stock
splits, stock dividends, or similar transactions.
2 The registration fee has been calculated pursuant to Rule
457(h).
This Registration Statement is being filed by Tracor, Inc.
("Tracor") to register an additional one million (1,000,000)
shares of common stock to be issued under the Amended and
Restated 1995 Stock Option Plan for Employees of Tracor, Inc. and
Subsidiaries. This Registration Statement incorporates by
reference, the contents of the Form S-8 Registration Statements,
Reg. No. 33-55624 filed by Tracor on December 10, 1992, and Reg.
No. 33-93186 filed by Tracor on June 2, 1995.
Item 8. Exhibits
4.1 Amended and Restated 1995 Stock Plan for Employees of
Tracor, Inc. and Subsidiaries.
5.1 Opinion of Russell E. Painton, General Counsel to Tracor,
as to the legality of the shares being registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Russell E. Painton (contained in Exhibit 5.1).
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Austin and State of
Texas, on the ___ day of May, 1997.
TRACOR, INC.
By: /S/ James B. Skaggs
------------------------
James B. Skaggs
President
The Directors. Pursuant to the requirements of the Securities
Exchange Act of 1933, this Registration Statement has been signed
by Directors of the corporation on the 12th day of May, 1997.
/s/ William E. Conway
William E. Conway
/s/ Julian Davidson
Julian Davidson
/s/ Anthony Grillo
Anthony Grillo
/s/ Bob Marbut
Bob Marbut
/s/ Elvis Mason
Elvis Mason
/s/ James B. Skaggs
James B. Skaggs
/s/ Thomas P. Stafford
Lt. Gen. Thomas P. Stafford
EXHIBIT 4.1
AMENDED AND RESTATED 1995 STOCK PLAN
FOR EMPLOYEES OF TRACOR, INC. AND SUBSIDIARIES
1. Purpose. Tracor, Inc. (the "Corporation" or "Company")
desires to attract and retain employees of outstanding talent.
The Stock Plan for Employees of Tracor, Inc. and Subsidiaries
(the "Plan") affords eligible employees the opportunity to
acquire proprietary interests in the Corporation and thereby
encourages their highest levels of performance.
2. Scope and Duration.
a. Awards under the Plan may be granted in the following
forms
(1) incentive stock options ("Incentive Stock Options"),
as provided in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), and
non-qualified stock options ("Non-qualified
Options") (the term "Options" includes incentive
stock options and non-qualified options);
(2) shares of Common Stock of the Corporation (the
"Common Stock") which are restricted as provided in
paragraph 10. ("Restricted Shares"); or
(3) rights to acquire shares of Common Stock which are
restricted as provided in paragraph 10. ("Units or
"Restricted Units").
Options may be accompanied by stock appreciation
rights ("rights").
b. The maximum aggregate number of shares of Common Stock as
to which awards of options, restricted shares, units, or
rights may be made from time to time under the Plan is
2,000,000 shares. Shares issued pursuant to this Plan
may be in whole or in part, as the Board of Directors of
the Corporation (the "Board of Directors") shall from
time to time determine, issued from authorized but
unissued shares or issued shares reacquired by the
Corporation. If for any reason any shares as to which an
option has been granted cease to be subject to purchase
thereunder or any restricted shares or restricted units
are forfeited to the Corporation, or to the extent that
any awards under the Plan denominated in shares or units
are paid or settled in cash or are surrendered upon the
exercise of an option, then (unless the Plan shall have
been terminated) such shares or units, and any shares
surrendered to the Corporation upon such exercise, shall
become available for subsequent awards under the Plan;
provided, however, that shares surrendered by the
Corporation upon the exercise of an incentive stock
option and shares subject to an incentive stock option
surrendered upon the exercise of a right shall not be
available for subsequent award of additional stock
options under the Plan.
c. No incentive stock option shall be granted hereunder
after April 25, 2005.
3. Administration.
a. The Plan shall be administered by the Compensation
Committee or any successor thereto of the Board of
Directors of the Corporation or by such other committee
(the "Committee") as determined by the Board. The
Committee shall consist of not less than two members of
the Board of Directors each of whom shall qualify as a
"Disinterested Person" to administer the Plan as
contemplated by Rule 16b-3, as amended, or other
applicable rules under Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
b. The Committee shall have plenary authority in its sole
discretion, subject to and not inconsistent with the
express provisions of this Plan:
(1) to grant options, to determine the purchase price of
the Common Stock covered by each option, the term of
each option, the employees to whom, and the time or
times at which, options shall be granted and the
number of shares to be covered by each option;
(2) to designate options as incentive stock options or
non-qualified options and to determine which options
shall be accompanied by rights;
(3) to grant rights and to determine the purchase price
of the Common Stock covered by each right or related
option, the term of each right or related option,
the Employees (as defined herein) to whom, and the
time or times at which, rights or related options
shall be granted and the number of shares to be
covered by each right or related option;
(4) to grant restricted shares and restricted units and
to determine the term of the Restricted Period (as
defined in paragraph 10.) and other conditions
applicable to such shares or units, the Employees to
whom, and the time or times at which, restricted
shares or restricted units shall be granted and the
number of shares or units to be covered by each
grant;
(5) to interpret the Plan;
(6) to prescribe, amend and rescind rules and
regulations relating to the Plan;
(7) to determine the terms and provisions of the option
and rights agreements (which need not be identical)
and the restricted share and restricted unit
agreements (which need not be identical) entered
into in connection with awards under the Plan;
and to make all other determinations deemed necessary or
advisable for the administration of the Plan.
Without limiting the foregoing, the Committee shall have
plenary authority in its sole discretion, subject to, and not
inconsistent with, the express provisions of the Plan, to:
(1) select Tracor Officers and Employees for
participation in the Plan,
(2) determine the timing, price, and amount of any grant
or award under the Plan to any Employee, and
(3) either
(a) determine the form in which payment of any
right granted or awarded under the Plan will be
made (i.e., cash, securities, or any
combination thereof), or
(b) approve the election of the Employee to receive
cash in whole or in part in settlement of any
right granted or awarded under the Plan.
As used herein, the term "Tracor Officer" shall mean an
officer (other than an assistant officer) of the
Corporation or one of its principal subsidiaries, and any
other person who may from time to time be designated an
executive officer of the Corporation by its Board of
Directors. "Employee" shall mean an employee of the
Corporation or one of its principal subsidiaries. The
term "Subsidiary" means any corporation, one hundred
percent (100%) of the common stock of which is owned,
directly or indirectly, by the Corporation.
c. The Committee may delegate to one or more of its members
or to one or more agents such administrative duties as it
may deem advisable, and the Committee or any person to
whom it has delegated duties as aforesaid may employ one
or more persons to render advice with respect to any
responsibility the Committee or such person may have
under the Plan; provided, that the Committee may not
delegate any duties to a member of the Board of Directors
who, if elected to serve on the Committee, would not
qualify as a "Disinterested Person" to administer the
Plan as contemplated by Rule 16b-3, as amended, or other
applicable rules under the Exchange Act. The Committee
may employ attorneys, consultants, accountants, or other
persons and the Committee, the Corporation, and its
officers and directors shall be entitled to rely upon the
advice, opinions or valuations of any such persons. All
actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and
binding upon all Employees who have received awards, the
Corporation and all other interested persons. No member
or agent of the Committee shall be personally liable for
any action, determination, or interpretation made in good
faith with respect to the Plan or awards made thereunder,
and all members and agents of the Committee shall be
fully protected by the Corporation in respect of any such
action, determination, or interpretation.
4. Eligibility; Factors to be Considered in Making Awards.
a. Only Employees and Outside Directors may receive awards
under the Plan. An Outside Director is any director of
the company who is not an Employee of the Company or any
subsidiary. Outside Directors may only receive awards
under the provisions of paragraph 4.e.-4.g.
b. In determining the Employees to whom awards shall be
granted and the number of shares or units to be covered
by each award, the Committee shall take into account the
nature of the Employee's duties, his or her present and
potential contributions to the success of the Corporation
and such other factors as it shall deem relevant in
connection with accomplishing the purposes of the Plan.
c. Awards may be granted singly, in combination, or in
tandem and may be made in combination or in tandem with,
or in replacement of, or as alternatives to, awards or
grants under any other employee plan maintained by the
Corporation or its subsidiaries. An award made in the
form of an option, a unit or a right and may provide, in
the discretion of the committee, for
(1) the crediting to the account of, or the current
payment to, each Employee who has such an award of
an amount equal to the cash dividends and stock
dividends paid by the Corporation upon one share of
Common Stock for each restricted unit, or share of
Common Stock subject to an option or right, included
in such award ("Dividend Equivalents"), or
(2) the deemed reinvestment of such Dividend Equivalents
and stock dividends in shares of Common Stock, which
deemed reinvestment shall be deemed to be made in
accordance with the provisions of paragraph 10. and
credited to the Employee's account ("Additional
Deemed Shares").
Such Additional Deemed Shares shall be subject to the same
restrictions (including but not limited to provisions
regarding forfeitures) applicable with respect to the option,
unit, or right with respect to which such credit is made.
Dividend Equivalents not deemed reinvested as stock dividends
shall not be subject to forfeiture, and may bear amounts
equivalent to interest or cash dividends as the Committee may
determine. An Employee who has been granted incentive stock
options under the Plan may be granted an additional award or
awards, subject to such limitations as may be imposed by the
Code with respect to incentive stock options.
d. The Committee, in its sole discretion, may grant to an
Employee who has been granted an award under the Plan or
any other employee plan maintained by the Corporation,
one of its subsidiaries, or any successor thereto, in
exchange for the surrender and cancellation of such
award, a new award in the same or a different form and
containing such terms, including, without limitation, a
price which is different (either higher or lower) than
any price provided in the award so surrendered and
canceled, as the Committee may deem appropriate.
e. Effective April 24, 1996, each Outside Director shall
receive a grant of one thousand (1,000) restricted shares
of Common Stock of the Company and options to purchase
two thousand (2,000) shares of the Company. Thereafter,
on January 1st of each and every year, each Outside
Director then serving as a Director shall receive a grant
of one thousand (1,000) restricted shares of the Common
Stock of the Company ("Director Grants") and options to
purchase two thousand (2,000) shares of the Common Stock
of the Company ("Director Options"). All awards of
Director Grants and Director options are made pursuant to
the procedures and conditions set forth in paragraph
10b.(1) of this Plan.
f. The Restricted Period for the Director Grants, shall be
six (6) months from the date of the grant. The Director
Options will not be exercisable for a period of not less
than six (6) months from the date of the award. Except
as otherwise provided above, all other terms and
conditions for the award of Restricted Shares and
Director Options set forth herein shall apply to Director
Grants or Director Options. As necessary to carry out
the intent of this provision, and when required to give
meaning to the specific term or conditions when applied
to Director Grants or Director Options, the terms
Employee and Tracor Officer, when used in this Plan,
shall be deemed to also include the term Outside
Director.
g. All Grants or Options shall be issued subject to the
availability of the necessary number of shares of stock
being authorized and available under the Plan at the time
of Grant or Option.
5. Option Price.
a. The purchase price of the Common Stock covered by each
option shall be 100% of the fair market value of the
Common Stock on the date the option is granted. Fair
market value shall mean
(1) if the Common Stock is duly listed on the National
Association of Securities Dealers Automatic
Quotation System ("NASDAQ"), the closing price of
the Common Stock for the date on which the option is
granted, or, if there are no sales on such date, on
the next preceding day on which there were sales, or
(2) if the Common Stock is not duly listed on NASDAQ,
the fair market value of the Common Stock for the
date on which the option is granted, as determined
by the Committee in good faith. Such price shall be
subject to adjustment as provided in paragraph 13.
The price so determined shall also be applicable in connection
with the exercise of any related right.
b. The purchase price of the shares as to which an option is
exercised shall be paid in full at the time of exercise;
payment may be made in cash, which may be paid by check
or other instrument acceptable to the Corporation, in
shares of the Common Stock, valued at the closing price
of the Common Stock as reported on NASDAQ for the date of
exercise, or if there were no sales on such date, on the
next preceding day on which there were sales (or, if the
Common Stock is not duly listed on NASDAQ, the fair
market value of the Common Stock on the date of exercise,
as determined by the Committee in good faith), or, if
permitted by the Committee and subject to such terms and
conditions as it may determine, by surrender of
outstanding awards under the Plan. In addition, the
Employee shall pay any amount necessary to satisfy
applicable federal, state, or local tax requirements
promptly upon notification of the amount due. The
Committee may permit such amount to be paid in shares of
Common Stock previously owned by the Employee, or a
portion of the shares of Common Stock that otherwise
would be distributed to such Employee upon exercise of
the option, or a combination of cash and shares of such
Common Stock.
6. Term of Options. The term of each incentive stock option
granted under the Plan shall be such period of time as the
Committee shall determine, but not more than ten years from
the date of grant, subject to earlier termination as provided
in paragraphs 11. and 12. The term of each non-qualified
stock option granted under the Plan shall be such period of
time as the Committee shall determine, subject to earlier
termination as provided in paragraphs 11. and 12.
7. Exercise of Options.
a. Each option shall become exercisable, in whole or in
part, as the Committee shall determine, provided,
however, that the Committee may also, in its discretion,
accelerate the exercisability of any option in whole or
in part at any time.
b. Subject to the provisions of this Plan and unless
otherwise provided in the option agreement, an option
granted under the Plan shall become exercisable in full
at the earliest of the Employee's death, Eligible
Retirement (as defined below), Total Disability, or a
Change in Control (as defined in paragraph 12.). For
purposes of this Plan, the term "Eligible Retirement"
shall mean the date upon which an Employee, having
attained an age of not less than sixty-two, terminates
his employment with the Corporation or a subsidiary,
provided that such Employee has been employed by the
Corporation, or one of its subsidiaries, or a combination
thereof for a period of not less than five (5) years
prior to such termination.
c. An option may be exercised, at any time or from time to
time (subject, in the case of an incentive stock option,
to such restrictions as may be imposed by the Code), as
to any or all full shares as to which the option has
become exercisable, provided, however, that an option may
not be exercised at any one time as to less than 100
shares for less than the number of shares as to which the
option is then exercisable, if that number is less than
100 shares).
d. Subject to the provisions of paragraphs 11. and 12., in
the case of incentive stock options, no option may be
exercised at any time unless the holder thereof is then
an Employee of the Corporation or one of its
subsidiaries. For purposes of this subparagraph 7.d.,
the term "Subsidiary" shall include, as under Example (3)
of Treasury Regulations Section 1.421-7(h) (3) and (4),
any corporation which is a subsidiary of the Corporation
during the entire portion of the requisite period of
employment during which it is the employer of the holder.
e. Upon the exercise of an option or portion thereof in
accordance with the Plan, the option agreement and such
rules and regulations as may be established by the
Committee, the holder thereof shall have the rights of a
shareholder with respect to the shares issued as a result
of such exercise.
8. Award and Exercise of Rights.
a. A right may be awarded by the Committee in connection
with any option granted under the Plan, either at the
time the option is granted or thereafter at any time
prior to the exercise, termination or expiration of the
option ("Tandem Right"), or separately ("freestanding
right"). Each tandem right shall be subject to the same
terms and conditions as the related option and shall be
exercisable only to the extent the option is exercisable.
No right shall be exercisable for cash by a Tracor
Officer within six months from the date the right is
awarded (and then, as to a tandem right, only to the
extent the related option is exercisable) or, if the
exercise price of the right is not fixed on the date of
the award, within six months from the date when the
exercise price is so fixed, and in any case only when the
Tracor Officer's election to receive cash in full or
partial satisfaction of the right, as well as the Tracor
Officer's exercise of the right for cash, is made during
a Quarterly Window Period (as defined below); provided,
that a right may be exercised by a Tracor Officer for
cash outside a Quarterly Window Period if the date of
exercise is automatic or has been fixed in advance under
the Plan and is outside the Tracor Officer's control.
The term "Quarterly Window Period" shall mean the period
beginning on the third business day following the date of
release of each of the Corporation's quarterly and annual
summary statements of sales and earnings and ending on
the twelfth business day following such release; and the
date of any such release shall be deemed to be the date
it either:
(1) appears on a wire service,
(2) appears on a financial news service,
(3) appears in a newspaper of general circulation, or
(4) is otherwise made publicly available, for example,
by press releases to a wire service, financial news
service, or newspapers or general circulation.
b. A right shall entitle the Employee upon exercise in
accordance with its terms (subject, in the case of a
tandem right, to the surrender unexercised of the related
option or any portion or portions thereof which the
Employee from time to time determines to surrender for
this purpose) to receive, subject to the provisions of
the Plan and such rules and regulations as from time to
time may be established by the Committee, a payment
having an aggregate value equal to the product of
(1) the excess of
(a) the fair market value on the exercise date of
one share of Common Stock over
(b) the exercise price per share, in the case of a
tandem right, or the price per share specified
in the terms of the right, in the case of a
freestanding right, multiplied by
(2) the number of shares with respect to which the right
shall have been exercised.
The payment may be made in the form of all cash, all shares of
Common Stock, or a combination thereof, as elected by the
Employee, subject (where the Employee is a Tracor Officer) to
paragraph 8.a. hereof.
c. The exercise price per share specified in a right shall
be as determined by the Committee, provided that, in the
case of a tandem right accompanying an incentive stock
option, the exercise price shall be not less than fair
market value of the Common Stock subject to such option
on the date of grant.
d. If upon the exercise of a right the Employee is to
receive a portion of the payment in shares of Common
Stock, the number of shares shall be determined by
dividing such portion by the fair market value of a share
on the exercise date. The number of shares received may
not exceed the number of shares covered by any option or
portion thereof surrendered. Cash will be paid in lieu
of any fractional share.
e. No payment will be required from an Employee upon
exercise of a right, except that any amount necessary to
satisfy applicable federal, state, or local tax
requirements shall be withheld or paid promptly by the
Employee upon notification of the amount due and prior to
or concurrently with delivery of cash or a certificate
representing shares. The Committee may permit such
amount to be paid in shares of Common Stock previously
owned by the Employee, or a portion of the shares of
Common Stock that otherwise would be distributed to such
Employee upon exercise of the right, or a combination of
cash and shares of such Common Stock.
f. The fair market value of a share shall mean the closing
price of the Common Stock as reported on NASDAQ for the
date of exercise, or if there are no sales on such date,
on the next preceding day on which there were sales;
provided, however, that in the case of rights that relate
to an incentive stock option, the Committee may
prescribe, by rules of general application, such other
measure of fair market value as the Committee may in its
discretion determine but not in excess of the maximum
amount that would be permissible under Section 422 of the
Code without disqualifying such option under Section 422.
g. Upon exercise of a tandem right, the number of shares
subject to exercise under the related option shall
automatically be reduced by the number of shares
represented by the option or portion thereof surrendered.
h. A right related to an incentive stock option may only be
exercised if the fair market value of a share of Common
Stock on the exercise date exceeds the option price.
9. Transferability of Options; Holding Periods for Tracor
Officers.
a. The Committee shall have the power and authority to make
Non-Qualified Options transferable by the awardee.
b. The Committee shall take no action which would result in
any option, right or unit being transferred to anyone
other than to one or more members of the immediate family
of the Option Holder, or to a trust, the principal
beneficiary of which is the Option Holder and/or one or
more members of the immediate family of the Option
Holder.
c. The Committee shall take no action whose effect would
cause or allow a Tracor Officer or Director to transfer
or dispose of any shares of Common Stock or any options,
rights, or units awarded under the Plan for at least six
months from the date of the award thereof or the
acquisition by the Tracor Officer or Director of the
option, right or unit.
10. Award and Delivery of Restricted Shares or Restricted Units.
a. Restricted shares or restricted units shall be subject to
the following restrictions (the "Restricted Period")::
(1) the restrictions on thirty percent (30%) of the
shares shall terminate or lapse on the first
anniversary of the grant of the restricted shares;
(2) the restrictions on an additional thirty percent
(30%) of the shares shall terminate or lapse on the
second anniversary of the grant of the restricted
shares; and
(3) the restrictions on the balance of the shares shall
terminate or lapse on the third anniversary of the
grant of the restricted shares.
Notwithstanding the foregoing but subject to paragraph 9.
hereof, all restrictions shall lapse or terminate with respect
to all restricted shares or restricted units upon the earliest
to occur of an Employee's Eligible Retirement, a Change in
Control, death, or Total Disability.
b. (1) Unless such shares are issued as uncertificated shares
pursuant to subparagraph (2)(a) below, a stock
certificate representing the number of restricted shares
granted to an Employee shall be registered in the
Employee's name but shall be held in custody by the
Corporation or an agent therefor for the Employee's
account. The Employee shall generally have the rights
and privileges of a shareholder as to such restricted
shares, including the right to vote such restricted
shares, except that, subject to the provisions of
paragraphs 11. and 12., the following restrictions shall
apply:
(a) the Employee shall not be entitled to delivery
of the certificate until the expiration or
termination of the Restricted Period and the
satisfaction of any other conditions prescribed
by the Committee;
(b) none of the restricted shares may be sold,
transferred, assigned, pledged, or otherwise
encumbered or disposed of during the Restricted
Period and until the satisfaction of any other
conditions prescribed by the Committee; and
(c) all of the restricted shares shall be forfeited
and all rights of the Employee to such
restricted shares shall terminate without
further obligation on the part of the
Corporation unless the Employee has remained an
Employee of the Corporation or any of its
subsidiaries until the expiration or
termination of the Restricted Period and the
satisfaction of any other conditions prescribed
by the Committee applicable to such restricted
shares. At the discretion of the Committee,
(i) cash and stock dividends with respect to
the restricted shares may be either
currently paid or withheld by the
Corporation for the Employee's account,
and interest may be paid on the amount of
cash dividends withheld at a rate and
subject to such terms as determined by the
Committee or
(ii) the Committee may require that all cash
dividends be applied to the purchase of
additional shares of Common Stock, and
such purchased shares, together with any
stock dividends related to such restricted
shares (such purchased shares and stock
dividends are hereafter referred to as
"Additional Restricted Shares") shall be
treated as Additional Shares, subject to
forfeiture on the same terms and
conditions as the original grant of the
restricted shares to the Employee.
(2) The purchase of any such Additional Restricted
Shares shall be made either
(a) through a dividend reinvestment plan that may
be established by the Corporation which
satisfies the requirements of Rule 16b-2 under
the Exchange Act, in which event the price of
such shares so purchased through the
reinvestment of dividends shall be as
determined in accordance with the provisions of
that plan and no stock certificate representing
such Additional Restricted Shares shall be in
the Employee's name, or
(b) in accordance with such alternative procedure
as is determined by the Committee in which
event the price of such purchased shares shall
be
(i) if the Common Stock is duly listed on
NASDAQ, the closing price of the Common
Stock as reported on NASDAQ for the date
on which such purchase is made, or if
there were no sales on such date, the next
preceding day on which there were sales,
or
(ii) if the Common Stock is not duly listed on
NASDAQ, the fair market value of the
Common Stock for the date on which such
purchase is made, as determined by the
Committee in good faith. In the event
that the Committee shall not require
reinvestment, cash, or stock dividends so
withheld by the Committee shall not be
subject to forfeiture. Upon the
forfeiture of any restricted shares
(including any Additional Restricted
Shares), such forfeited shares shall be
transferred to the Corporation without
further action by the Employee. The
Employee shall have the same rights and
privileges, and be subject to the same
restrictions, with respect to any shares
received pursuant to paragraph 13.
c. Upon the expiration or termination of the Restricted
Period and the satisfaction of any other conditions
prescribed by the Committee or at such earlier time as
provided for in paragraphs 11. and 12., the restrictions
applicable to the restricted shares (including Additional
Restricted Shares) shall lapse and a stock certificate
for the number of restricted shares (including any
Additional Restricted Shares) with respect to which the
restrictions have lapsed shall be delivered, free of all
such restrictions, except any that may be imposed by law,
to the Employee or the Employee's beneficiary or estate,
as the case may be. The Corporation shall not be
required to deliver any fractional share of Common Stock
but will pay, in lieu thereof, the fair market value
(determined as of the date the restrictions lapse) of
such fractional share to the Employee or the Employee's
beneficiary or estate, as the case may be. No payment
will be required from the Employee upon the issuance or
delivery of any restricted shares, except that any amount
necessary to satisfy applicable federal, state, or local
tax requirements shall be withheld or paid promptly upon
notification of the amount due and prior to or
concurrently with the issuance or delivery of a
certificate representing such shares. The Committee may
permit such amount to be paid in shares of Common Stock
previously owned by the Employee, or a portion of the
shares of Common Stock that otherwise would be
distributed to such Employee upon the lapse of the
restrictions applicable to the restricted shares, or a
combination of cash and shares of such Common Stock.
d. In the case of an award of restricted units, no shares of
Common Stock shall be issued at the time the award is
made, and the Corporation shall not be required to set
aside a fund for the payment of any such award.
e. (1) Upon the expiration or termination of the Restricted
Period and the satisfaction of any other conditions
prescribed by the Committee or at such earlier time as
provided in paragraphs 11. and 12., the Corporation shall
deliver to the Employee or the Employee's beneficiary or
estate, as the case may be, one share of Common Stock for
each restricted unit with respect to which the
restrictions have lapsed ("Vested Unit").
(2) In addition, if the Committee has not required the
deemed reinvestment of such Dividend Equivalents
pursuant to paragraph 4., at such time the
Corporation shall deliver to the Employee cash equal
to any Dividend Equivalents or stock dividends
credited with respect to each such vested unit and,
to the extent determined by the Committee, the
interest thereupon. However, if the Committee has
required such deemed reinvestment in connection with
such restricted unit, in addition to the stock
represented by such vested unit, the Corporation
shall deliver the number of Additional Deemed Shares
credited to the Employee with respect to such vested
unit.
(3) Notwithstanding the foregoing, the Committee may, in
its sole discretion, elect to pay cash or part cash
and part Common Stock in lieu of delivering only
Common Stock for the vested units and related
Additional Deemed Shares. If a cash payment is made
in lieu of delivering Common Stock, the amount of
such cash payment shall be equal to
(a) if the Common Stock is duly listed on NASDAQ,
the closing price of the Common Stock as
reported on NASDAQ for the date on which the
Restricted Period lapsed with respect to such
vested unit and related Additional Deemed
Shares (the "Lapse Date") or, if there are no
sales on such date, on the next preceding day
on which there were sales, or
(b) if the Common Stock is not duly listed on
NASDAQ, the fair market value of the Common
Stock for the Lapse Date, as determined by the
Committee in good faith.
f. No payment will be required from the Employee upon the
award of any restricted units, the crediting or payment
of any Dividend Equivalents or Additional Deemed Shares,
or the delivery of Common Stock or the payment of cash in
respect of vested units, except that any amount necessary
to satisfy applicable federal, state, or local tax
requirements shall be withheld or paid promptly upon
notification of the amount due. The Committee may permit
such amount to be paid in shares of Common Stock
previously owned by the Employee, or a portion of the
shares of Common Stock that otherwise would be
distributed to such Employee in respect of vested units
and Additional Deemed Shares, or a combination of cash
and shares of such Common Stock.
g. In addition, the Committee shall have the right, in its
absolute discretion, upon the vesting of any restricted
shares (including Additional Restricted Shares) and
restricted units (including Additional Deemed Shares) to
award cash compensation to the Employee for the purpose
of aiding the Employee in the payment of any and all
federal, state, and local income taxes payable as a
result of such vesting, if the performance of the
Corporation during the Restricted Period meets such
criteria as then or theretofore determined by the
Committee.
11. Termination of Employment. In the event that the employment
of an Employee to whom an option or right has been granted
under the Plan shall be terminated for any reason other than
as set forth in paragraph 12., such option or right may,
subject to the provisions of the Plan, be exercised (but only
to the extent that the Employee was entitled to do so at the
termination of his employment) at any time within three (3)
months after such termination, but in no case later than the
date on which the option or right terminates.
Unless otherwise determined by the Committee, if an Employee
to whom restricted shares or restricted units have been
granted ceases to be an Employee of the Corporation or of a
subsidiary, for any reason other than as set forth in
paragraph 12., prior to the end of the Restricted Period and
the satisfaction of any other conditions prescribed by the
Committee, the Employee shall immediately forfeit all
restricted shares and restricted units, including all
Additional Restricted Shares or Additional Deemed Shares
related thereto.
Any option, right, restricted share or restricted unit
agreement, or any rules and regulations relating to the Plan,
may contain such provisions as the Committee shall approve
with reference to the determination of the date employment
terminates and the effect of leaves of absence. Any such
rules and regulations with reference to any option agreement
shall be consistent with the provisions of the Code, this Plan
and any applicable rules and regulations thereunder. Nothing
in the Plan or in any award granted pursuant to the Plan shall
confer upon any Employee any right to continue in the employ
of the Corporation of any of its subsidiaries or interfere in
any way with the right of the Corporation or any such
subsidiary to terminate such employment at any time.
12. Eligible Retirement, Death, or Total Disability of Employee,
Change in Control. If any Employee to whom an option, right,
restricted share, or restricted unit has been granted under
the Plan shall die or suffer a Total Disability while employed
by the Corporation or one of its subsidiaries, if an Employee
terminates his employment pursuant to an Eligible Retirement,
of if a Change in Control should occur, such option or right
may be exercised as set forth herein, or such restricted
shares or restricted unit shall be deemed to be vested,
whether or not the Employee was otherwise entitled at such
time to exercise such option or right, or be treated as vested
in such share or unit. Subject to the restrictions otherwise
set forth in this Plan, such option or right shall be
exercisable by the Employee, a legatee or legatees of the
Employee under the Employee's last will, or by the Employee's
personal representatives or distributees, whichever is
applicable, at the earlier of
a. the date on which the option or right terminates in
accordance with the terms of grant, or
b. any time prior to the expiration of three months after
the date of such Employee's Eligible Retirement, his
termination due to total disability, or the occurrence of
a Change in Control, or, if applicable, within one year
of such Employee's death.
For purposes of this paragraph 12., "Total Disability" is
defined as the permanent inability of an Employee, as a result
of accident or sickness, to perform any and every duty
pertaining to such Employee's occupation or employment for which
the Employee is suited by reason of the Employee's previous
training, education, and experience.
A "Change in Control" shall be deemed to have occurred upon:
a. a business combination, including a merger or
consolidation, of the Company and the shareholders of the
Company prior to the combination do not continue to own,
directly or indirectly, more than fifty-one percent (51%)
of the equity of the combined entity;
b. a sale, transfer, or other disposition in one or more
transactions (other than in transactions in the ordinary
course of business or in the nature of a financing) of
the assets or earning power aggregating more than
forty-five percent (45%) of the assets or operating
revenues of the Company and its subsidiaries, taken as a
whole, to any person or affiliated or associated group of
persons (as defined by Rule 12b-2 of the Exchange Act in
effect as of the date hereof);
c. the liquidation of the Company;
d. one or more transactions which result in the acquisition
by any person or associated or affiliated group of
persons (other than the Company, any subsidiary or any
employee benefit plan whose beneficiaries are employees
of the Company) of the beneficial ownership (as defined
in Rule 13d-3 of the Exchange Act, in effect as of the
date hereof) of forty percent (40%) or more of the common
stock of the Company, or securities representing forty
percent (40%) or more of the combined voting power of the
voting securities of the Company which affiliated persons
owned less than forty percent (40%) prior to such
transaction or transactions; or
e. the election or appointment, within a twelve month
period, of any person or affiliated or associated group,
or its or their nominees, to the Board of Directors of
the Company, such that such persons or nominees, when
elected, constitute a majority of the Board of Directors
of the Company and whose appointment or election was not
approved by a majority of those persons who were
directors at the beginning of such period or whose
election or appointment was made at the request of an
Acquiring Person.
An "Acquiring Person" is any person who, or which, together with
all affiliates or associates of such person, is the beneficial
owner of twenty percent (20%) or more of the common stock of the
Company then outstanding, except that an Acquiring Person does
not include the Company, any wholly owned subsidiary of the
Company, or any employee benefit plan of the Company or of a
subsidiary of the Company or any person holding common stock of
the Company for or pursuant to such plan. For the purpose of
determining who is an Acquiring Person, the percentage of the
outstanding shares of the Common stock of which a person is a
beneficial owner shall be calculated in accordance with Rule
13d-e.
13. Adjustments Upon Changes in Capitalization, etc.
Notwithstanding any other provision of the Plan, the Committee
may at any time make or provide for such adjustments to the
Plan, to the number and class of shares available thereunder
or to any outstanding options, restricted shares, or
restricted units as it shall deem appropriate to prevent
dilution or enlargement of rights, including adjustments in
the event of distributions to holders of Common Stock other
than a normal cash dividend, changes in the outstanding Common
Stock by reason of stock dividends, split-ups,
recapitalizations, mergers, consolidations, combinations, or
exchanges of shares, separations, reorganizations,
liquidations, and the like. In the event of any offer to
holders of Common Stock generally relating to the acquisition
of their shares, the Committee may make such adjustment as it
deems equitable in respect of outstanding options, rights, and
restricted units including in the Committee's discretion
revision of outstanding options, rights, and restricted units
so that they may be exercisable for or payable in the
consideration payable in the acquisition transaction. Any such
determination by the Committee shall be conclusive. No
adjustment shall be made in the minimum number of shares with
respect to which an option may be exercised at any time. Any
fractional shares resulting from such adjustments to options,
rights, limited rights, or restricted units shall be
eliminated.
14. Effective Date. The Plan as theretofore amended shall become
effective as of December 27, 1991, provided that the Plan
shall have been approved by Corporation's stockholders in
connection with the consummation of the Joint Defense Plans of
Reorganization of Tracor Holdings, Inc., et al., Jointly
Administered Case No. 91-10572LK in the United States
Bankruptcy Court for the Western District of Texas. The
Committee may, in its discretion, grant awards under the Plan,
the grant, exercise, or payment of which shall be expressly
subject to the conditions that, to the extent required at the
time of grant, exercise, or payment,
a. the shares of Common Stock covered by such awards shall
be duly listed, upon official notice of issuance, upon
NASDAQ, and
b. if the Corporation deems it necessary or desirable, a
Registration Statement under the Securities Act of 1933
with respect to such shares shall be effective.
15. Termination and Amendment. The Board of Directors of the
Corporation may suspend, terminate, modify, or amend the Plan,
provided that if any such amendment requires shareholder
approval to meet the requirement of the then applicable rules
under Section 16(b) of the Exchange Act, such amendment shall
be subject to the approval of the Corporation's stockholders.
If the Plan is terminated, the terms of the Plan shall,
notwithstanding such termination, continue to apply to awards
granted prior to such termination. In addition, no
suspension, termination, modification, or amendment of the
Plan may, without the consent of the Employee to whom an award
shall theretofore have been granted, adversely affect the
rights of such Employee under such award.
16. Written Agreements. Each award of options, rights, restricted
shares, or restricted units shall be evidenced by a written
agreement, executed by the Employee and the Corporation, which
shall contain such restrictions, terms and conditions as the
Committee may require which are not inconsistent with the
terms and conditions of this Plan.
17. Effect on Other Stock Plans. The adoption of the Plan shall
have no effect on awards made, or to be made, pursuant to
other stock plans covering Employees of the Corporation, its
subsidiaries, or any successors thereto.
EXHIBIT 5.1
May 12, 1997
Tracor, Inc.
6500 Tracor Lane
Austin, Texas 78725
Dear Sirs:
I have represented Tracor, Inc., a Delaware corporation (the
"Company"), in connection with the registration with the
Securities and Exchange Commission under the Securities Act of
1993, of the shares of common stock, $.01 par value, of the
Company (the "Common Stock") to be issued by the Company from
time to time upon the exercise of stock options pursuant to the
Company's Amended and Restated 1995 Stock Plan for Employees of
Tracor, Inc. and Subsidiaries (the "Plan").
In this connection, I have examined originals, or copies
certified or otherwise identified to my satisfaction of such
documents, of corporate and other records, certificates, and
other papers as I deemed it necessary to examine for the purpose
of this opinion, including the Registration Statement of the
Company for the registration of the Common Stock to be issued
pursuant to the Plan on Form S-8 under the Securities Act of 1933
(the "Registration Statement").
Based upon such examination, it is my opinion that the shares of
Common Stock registered under the Registration Statement will,
when issued pursuant to the Plan, be legally issued, fully paid,
and non-assessable.
I consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent I do not thereby
admit that I am within the category of persons whose consent is
required under '7 of the Securities Act of 1933 as amended or the
rules and regulations thereunder.
Very truly yours,
/s/ Russell E. Painton
-----------------------
Russell E. Painton
Vice President and
General Counsel
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference of our report dated
January 27, 1997, except for Note N, as to which the date is
February 17, 1997, in the Registration Statement (Form S-8)
pertaining to the registration of an additional 1,000,000 shares
of common stock to be issued under the Amended and Restated 1995
Stock Option Plan for Employees of Tracor, Inc. and Subsidiaries,
with respect to the consolidated financial statements of Tracor,
Inc. and subsidiaries included in its Annual Report (Form 10-K)
for the year ended December 31, 1996, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young, LLP
Austin, Texas
May 8, 1997
