<PAGE> 1
Registration Statement No. - 333 -
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AIRNET COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 59-3218138
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
100 RIALTO PLACE
SUITE 300
MELBOURNE, FLORIDA 32901
(Address of Principal Executive Offices, Zip Code)
AIRNET COMMUNICATIONS CORPORATION 1999 EQUITY INCENTIVE PLAN
(Full title of the plan)
GERALD Y. HATTORI
AIRNET COMMUNICATIONS CORPORATION
100 RIALTO PLACE
SUITE 300
MELBOURNE, FLORIDA 32901
(407) 953-6600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO
THE AGENT FOR SERVICE, SHOULD BE SENT TO:
JOHN G. IGOE, ESQ.
EDWARDS & ANGELL, LLP
250 ROYAL PALM WAY
PALM BEACH, FLORIDA 33480
(561) 833-7700
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per share(1) aggregate offering price(1) registration fee
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value per share........ 2,950,000(2) $54.8125 $161,696,875 $42,688
=== ======== ============ =======
</TABLE>
(1) The price is estimated in accordance with Rule 457(c) under the Securities
Act of 1933, as amended, solely for the purpose of calculating the registration
fee, based on the average of the high and low prices of the Common Stock as
reported on the NASDAQ National Market on February 25, 2000 (within 5 business
days before the filing date of the Registration Statement).
(2) Represents shares of Common Stock reserved for issuance under the AirNet
Communications Corporation 1999 Equity Incentive Plan.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required in Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required in Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by AirNet Communications Corporation (the
"Company") are incorporated herein by reference, except as superseded or
modified herein as described below:
(a) Prospectus filed with the Securities and Exchange Commission
on December 7, 1999 pursuant to Rule 424(b);
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on November 19, 1999
pursuant to Section 12(g) of the Securities and Exchange Act
of 1934.
In addition to the foregoing, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to this Registration Statement indicating that all of
the securities offered hereunder have been sold or deregistering all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed document that is
or is deemed to be also incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
See Item 3(b) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Officers and directors of the Company are covered by certain provisions of the
Delaware General Corporation Law and the Certificate of Incorporation and Bylaws
of the Company, which serve to limit, and, in certain instances, to indemnify
them against, liabilities which they may incur in such capacities.
Delaware General Corporation Law permits a corporation to indemnify its
directors, officers, employees and agents if the person acted in good faith and
in a manner the person reasonably believed to be in the best interests of the
corporation.
The Company's Certificate of Incorporation limits the liability of a director to
the fullest extent permitted by Delaware law and specifically provides that a
director of the Company will not be personally liable for monetary damages for
breach of a director's fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Company or its
shareholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions, or (iv) for
any transaction from which the director derived an improper personal benefit.
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<PAGE> 3
The Company's bylaws provide for the indemnification of directors and officers
(as well as certain other persons) if the person acted in good faith and a
manner reasonably believed to be in or not opposed to the Company's best
interests, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful. In an action by or in the
right of the Company, no indemnification may be made if the person shall have
been adjudged to be liable to the Company unless the court in which the action
was brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the person is fairly
and reasonably entitled to indemnity for the expenses which the court deems
proper. The Company's bylaws also provide that any indemnification (unless
ordered by a court) may be made by the Company only as authorized in the
specific case upon a determination that indemnification is proper in the
circumstances because the person has met the applicable standard of conduct.
This determination must be made (i) by the board of directors by a majority vote
of a quorum consisting of directors who were not parties to the action, (ii) if
a quorum is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the shareholders of the Company. If an indemnified person has been
successful on the merits or otherwise in defense of any action described above,
or in the defense of any matter in the action, the person will be indemnified
against expenses (including attorneys' fees) incurred in connection with the
action, without the necessity of authorization in the specific case. Expenses
incurred in defending or investigating a threatened or pending action may be
paid by the Company in advance of the final disposition of the action upon
receipt of an undertaking by the person to repay the amount if it is ultimately
determined that indemnification is not proper. The indemnification and
advancement of expenses provided by or granted under the Company's bylaws are
not exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, contract,
vote of shareholders or disinterested directors or otherwise, it being the
Company's policy that indemnification of the persons specified in the bylaws
shall be made to the fullest extent permitted by law. The indemnification and
advancement of expenses provided by the Company's bylaws, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director or officer and inure to the benefit of the heirs, executors and
administrators of that person.
The Company carries directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
A list of the exhibits included as part of this Registration Statement
is set forth in the Exhibit Index which immediately precedes such exhibits and
is hereby incorporated by reference herein.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(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; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission
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<PAGE> 4
by the Company pursuant to Section 13 or Section 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 of 1933, each such
post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer, or
controlling person of the registrant 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
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
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<PAGE> 5
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Melbourne, State of Florida on March 1, 2000.
AIRNET COMMUNICATIONS CORPORATION
By: /s/ R. Lee Hamilton, Jr.
-----------------------------------
R. Lee Hamilton, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints the Chief Executive Officer or the Chief
Financial Officer, or either of them, acting alone, as his true and lawful
attorney-in-fact and agent with full power of substitution and re-substitution,
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 all documents in
connection therewith, with the Securities and Exchange Commission, granting said
attorney-in-fact and agent, and each of them, 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 he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or any of them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ R. Lee Hamilton,Jr. March 1, 2000
- ----------------------------------------------
R. Lee Hamilton, Jr. Director, President and Chief Executive Officer
(Principal Executive Officer)
/s/ Gerald Y. Hattori March 1, 2000
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Gerald Y. Hattori Vice President of Finance, Chief Financial
Officer, Treasurer and Secretary (Principal
Financial Officer and Principal Accounting Officer)
- ----------------------------------------------
Joel P. Adams Director
/s/ James W. Brown
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James W. Brown Director March 1, 2000
/s/ Robert M. Chefitz
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Robert M. Chefitz Director March 1, 2000
/s/ Richard G. Coffey
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Richard G. Coffey Director March 1, 2000
/s/ Bruce R. DeMaeyer
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Bruce R. DeMaeyer Director March 1, 2000
/s/ Milo D. Harrison
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Milo D. Harrison Director March 1, 2000
/s/ J. Douglass Mullins
- ----------------------------------------------
J. Douglass Mullins Director March 1, 2000
</TABLE>
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<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ -------
<S> <C>
5 Opinion of Edwards & Angell, LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Edwards & Angell, LLP (included in Exhibit 5)
24 Power of Attorney (included in signature page)
99.1 AirNet Communications Corporation 1999 Equity Incentive Plan
</TABLE>
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<PAGE> 1
EXHIBIT 5
March 1, 2000
AirNet Communications Corporation
100 Rialto Place, Suite 300
Melbourne, Florida 32901
Ladies and Gentlemen:
We have acted as counsel for AirNet Communications Corporation, a Delaware
corporation (the "Company"), in connection with the registration of 2,950,000
shares (the "Shares") of Common Stock, $.001 par value (the "Common Stock"),
issuable upon the exercise of outstanding stock options granted, or which may be
granted, pursuant to the AirNet Communications Corporation 1999 Equity Incentive
Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement on
Form S-8 filed with the Securities and Exchange Commission pursuant to the rules
and regulations promulgated under the Securities Act of 1933, as amended, on the
date hereof (the "Registration Statement"), relating to the above-mentioned
registration. In addition, we have examined such corporate records, certificates
and other documents, and reviewed such questions of law, as we have deemed
necessary or advisable in order to enable us to render the opinion contained
herein.
In our examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to unsigned documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
Based upon the foregoing, we are of the opinion that the Shares being registered
under the Registration Statement, when issued and paid for as contemplated by
the Plan and applicable stock option agreement, assuming proper execution of the
stock certificates therefor, will be validly issued, fully paid and
non-assessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
Prospectus constituting a part of the Registration Statement. In giving such
consent, we do not admit that we come within the category of persons whose
consent is required by Section 7 of the Act or the rules and regulations
promulgated thereunder.
Very truly yours,
/s/ Edwards & Angell, LLP
------------------------------
EDWARDS & ANGELL, LLP
<PAGE> 1
EXHIBIT 23.1
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration Statement of
AirNet Communications Corporation on Form S-8 of our report dated September 22,
1999 (October 27, 1999 as to the last paragraph of Note 11 and November 11, 1999
as to Note 12), appearing in the Prospectus included in Registration Statement
No. 333-87693 on Form S-1 of AirNet Communications Corporation filed with the
Securities and Exchange Commission on December 7, 1999.
/s/ Deloitte & Touche LLP
- -------------------------------
Deloitte & Touche LLP
Orlando, Florida
March 1, 2000
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Certified Public Accountants
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the AirNet Communications Corporation 1999 Equity Incentive
Plan, of our report dated March 6, 1998 with respect to the consolidated
financial statements of AirNet Communications Corporation included in its
Prospectus filed with the Securities and Exchange Commission on December 7, 1999
pursuant to Rule 424(b).
/s/ Ernst & Young LLP
--------------------------
Ernst & Young LLP
Orlando, Florida
March 1, 2000
<PAGE> 1
Exhibit 99.1
AIRNET COMMUNICATIONS CORPORATION 1999 EQUITY INCENTIVE PLAN
EFFECTIVE SEPTEMBER 1, 1999*
1. Purpose
The purpose of the AirNet Communications Corporation 1999 Equity
Incentive Plan (the "Plan") is to attract and retain the best available talent
and encourage the highest level of performance by directors, employees and other
persons who perform services for AirNet Communications Corporation (the
"Company"). By affording eligible persons the opportunity to acquire proprietary
interests in the Company and by providing them incentives to put forth maximum
efforts for the success of the Company's business, the Plan is intended to serve
the best interests of the Company and its stockholders. The Plan shall
constitute a Second Amendment and Restatement of the Company's 1994 Stock Option
Plan, as amended, and a First Amendment and Restatement of the Company's 1996
Independent Director Stock Option Plan.
2. Definitions
"Affiliate" shall mean (i) any entity that, directly or indirectly, is
controlled by the Company, and (ii) any entity in which the Company has a
significant equity interest, in either case as determined by the Committee.
"Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock Award, Performance Award or other Stock-Based Award.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean:
(i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange act) of 50% or more of either (i) then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities") or;
(ii) the cessation for any reason of individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date
*Restated on December 29, 1999 to reflect the 66.38:1 reverse stock split
effected November 16, 1999.
<PAGE> 2
hereof whose election, or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board; or
(iii) the approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, unless, following such
reorganization, merger or consolidation, more than 50% of, respectively, then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting power of then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be; or
(iv) the approval by the shareholders of the Company of (i) a complete
liquidation or dissolution of the Company or (ii) the sale or other disposition
of all or substantially all of the assets of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean the Compensation Committee of the Board or such
other committee consisting of not less than two Board members designated by the
Board to administer the Plan.
"Common Shares" shall mean shares of the common stock, $.001 par value,
of the Company, or such other securities of the Company as may be designated by
the Committee from time to time.
"Company" shall mean AirNet Communications Corporation, a Delaware
corporation.
"Effective Date" means September 1, 1999.
"Employee" shall mean an employee of the Company or of any Affiliate, a
director of the Company, or any non-employee who provides services to the
Company or any Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" of the Common Shares shall mean the average of the
high and low prices of the Common Shares as reported by the New York Stock
Exchange, or the Fair Market
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<PAGE> 3
Value of any other property or other item being valued as determined by the
Committee in its sole discretion.
"Freestanding Right" shall mean a Stock Appreciation Right awarded by
the Committee pursuant to Paragraph 7 of the Plan other than in connection with
an Option.
"Incentive Stock Option" shall mean the right to purchase Common Shares
from the Company that is granted under Section 6 of the Plan and that is
intended to meet the requirements of Section 422 of the Code or any successor
provision thereto.
"Insider" shall mean, at any time, an individual who is an officer,
director, or 10% stockholder of the Company within the meaning of Exchange Act
Rule 16a-1(f) as promulgated and interpreted by the SEC under the Exchange Act,
or any successor rule or regulation thereto as in effect from time to time.
"Non-Qualified Stock Option" shall mean a right to purchase Common
Shares from the Company that is granted under Section 6 of the Plan and that is
not intended to be an Incentive Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
"Other Stock-Based Award" shall mean any right granted under Section 10
of the Plan.
"Participant" shall mean any Employee, director or individual
independent contractor of the Company or one of its Affiliates selected by the
Committee to receive an Award under the Plan.
"Performance Award" shall mean any right granted under Section 9 of the
Plan.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, government
or political subdivision thereof or other equity.
"Plan" shall mean this AirNet Communications Corporation 1999 Equity
Incentive Plan.
"QDRO" shall mean a domestic relations order meeting such requirements
as the Committee shall determine, in its sole discretion.
"Restricted Period" shall mean the period during which Restricted Stock
and Restricted Units may be forfeited to the Company.
"Restricted Stock" shall mean Common Shares granted under Paragraph 8
of the Plan.
"Restricted Stock Unit" shall mean any unit granted under Paragraph 8
of the Plan.
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<PAGE> 4
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission.
"Stock Appreciation Right" shall mean any Tandem Right or Freestanding
Right granted under Paragraph 7 of the Plan.
"Tandem Right" shall mean a Stock Appreciation Right awarded by the
Committee in connection with an Option pursuant to Paragraph 7 of the Plan.
"Total Disability" shall mean a determination by the Committee that the
Employee is unable to perform the duties required of him or her by the Company
as a result of any physical or mental condition.
3. Scope and Duration
Awards under the Plan may be granted in the form of Incentive Stock
Options, Non-Qualified Stock Options, Stock Appreciation Rights, Restricted
Shares, Restricted Units, Performance Awards or Other Stock-Based Awards. The
maximum aggregate number of Common Shares as to which Awards may be granted from
time to time under the Plan is 3,206,842 shares, subject to adjustment as
provided in Paragraph 14. The Common Shares available may be in whole or in
part, as the Board shall from time to time determine, authorized but unissued
shares or issued shares re-acquired by the Company. Unless otherwise provided by
the Committee, Common Shares covered by expired, terminated or forfeited Awards,
Awards which are settled for cash or consideration other than the delivery of
Common Shares, or Common Shares which are used to exercise any Award or to
satisfy the withholding tax liabilities of any Award will be available for
subsequent awards under the Plan. No Incentive Stock Option shall be granted
more than 10 years after the Effective Date.
4. Administration
The Plan shall be administered by the Committee. The Committee shall
have plenary authority in its discretion, subject to and not inconsistent with
the express provisions of the Plan, to grant Awards, to determine the terms and
conditions applicable to Awards, to determine the persons to whom, and the time
or times at which, Awards shall be granted and the number of Common Shares to be
covered by each grant; to determine the terms and provisions of the Award
Agreements entered into in connection with Awards under the Plan; to interpret
the Plan; to prescribe, amend and rescind rules and regulations relating to the
Plan; and to make all other determinations provided for in the Plan, or deemed
necessary or advisable for the administration of the Plan. To the extent
permissible by law, 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
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<PAGE> 5
persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan.
5. Eligibility; Factors to be Considered in Granting Awards
Subject to the discretion of the Committee, Awards may be granted to
any Employee of the Company and its Affiliates, a director of the Company, or a
non-employee who provides service to the Company or its Affiliates, except that
a non-employee shall not be granted an Incentive Stock Option. In determining
the Employees to whom Awards shall be granted and the number of Common Shares or
units to be covered by each Award, the Committee shall take into account the
nature of the Employee's duties, the present and potential contributions to the
success of the Company, and such other factors as it shall deem relevant in
connection with accomplishing the purposes of the Plan.
No award of Incentive Stock Options shall result in the aggregate Fair
Market Value of Common Shares with respect to which Incentive Stock Options are
exercisable for the first time by any Employee during any calendar year
(determined at the time the Incentive Stock Option is granted) exceeding
$100,000.
The maximum number of Common Shares with respect to which Options and
Stock Appreciation Rights can be awarded under the Plan to any Employee is
641,368 Common Shares during the first 4 calendar years of the Plan, and
160,342 per year thereafter. The "per Employee" limitations described in this
paragraph shall be construed and applied consistent with the rules and
regulations under Code Section 162(m).
6. Stock Options
(a) Exercise Price
The purchase price of the Common Shares covered by each Option shall be
determined by the Committee, but in the case of an Incentive Stock Option shall
not be less than 100% of the Fair Market Value (110% in the case of a
stockholder owning more than 10% of the combined voting power of all classes of
Company stock) of the Common Shares on the date the Option is granted, or if
there are no sales on such date, on the next preceding day on which there were
sales.
(b) Terms of Options
The term of each Incentive Stock Option granted under the Plan shall
not be more than 10 years (5 years in the case of a stockholder of the Company
owning more than 10% of the combined voting power of all classes of Company
stock) from the date of grant, as the Committee shall determine, 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
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<PAGE> 6
as the Committee shall determine, subject to earlier termination as provided in
Paragraphs 11 and 12.
(c) Exercise of Options
(i) Subject to the provisions provided herein, an Option granted under
the Plan shall become vested as determined by the Committee. The Committee may,
in its discretion, determine as a condition of any Option, that all or a stated
percentage of the Option shall become exercisable, in installments or otherwise,
only after the completion of a specified service requirement, or the
satisfaction or occurrence of other conditions. The Committee may also, in its
discretion, accelerate the exercisability of any Option at any time and provide
in any Award Agreement that the Option shall become immediately exercisable as
to all Common Shares remaining subject to the Option upon a Change in Control.
(ii) Subject to applicable regulatory restrictions, an Option may be
exercised at any time or from time to time (further 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.
Notwithstanding the foregoing provision, no Option may be exercised without the
prior consent of the Committee by an Insider until the expiration of six months
from the date of the grant of the Option.
(iii) Except as provided in Paragraphs 11, 12 and 13, no Option may be
exercised at any time unless the holder thereof is then an Employee, director or
individual independent contractor of the Company or one of its Affiliates.
(d) Payment
The purchase price of the Common Shares as to which an Option is
exercised shall be paid in full at the time of exercise. Payment may be made (i)
in cash, which may be paid by check, or other instrument acceptable to the
Company, (ii) with the consent of the Committee or the Chief Executive Officer,
in Common Shares, valued at the Fair Market Value on the date prior to exercise,
or if there were no sales on such date, on the next preceding day on which there
were sales, (iii) with the consent of the Committee and subject to such terms
and conditions as it may determine, by surrender of outstanding Awards under the
Plan, (iv) with the consent of the Committee, the delivery of a promissory note
containing such terms as deemed acceptable to the Committee, or (v) any
combination of the above. In addition, any amount necessary to satisfy
applicable federal, state or local tax requirements shall be paid promptly upon
notification of the amount due. The Committee may permit such amount to be paid
in Common Shares previously owned by the Employee, or a portion of the Common
Shares that otherwise would be distributed to such Employee upon exercise of the
Option, or a combination of cash and such Common Shares.
(e) Change in Control
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<PAGE> 7
Unless the Board determines otherwise, and except as otherwise provided
herein, all Options outstanding under the Plan shall accelerate and become
immediately exercisable for a period of fifteen days, or such longer or shorter
period as the Board may prescribe, (the "notice period") immediately prior to
the scheduled consummation of a Change in Control, provided, however, that any
such acceleration and any exercise of options during the notice period shall be
(i) conditioned upon the consummation of the Change in Control and (ii)
effective only immediately before the consummation of such Change in Control.
Upon consummation of any Change in Control, the Plan and all
outstanding but unexercised Options shall terminate. Notwithstanding the
foregoing, to the extent provision is made in writing in connection with such
Change in Control for the continuation of the Plan and the assumption of Options
under the Plan theretofore granted, or for the substitution for such Options of
new options covering the stock of a successor company, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kinds of shares or
units and exercise prices, then the Plan and Options theretofore granted shall
continue in the manner and under the terms so provided, and the acceleration and
termination provisions set forth in the first two sentences of this Paragraph
6(e) shall be of no effect. The Company shall send written notice of a Change in
Control to all individuals who hold Options not later than the time at which the
Company gives notice thereof to its stockholders.
7. Stock Appreciation Rights
(a) Awards
The Committee may award Stock Appreciation Rights to Employees of the
Company or any of its Affiliates. Stock Appreciation Rights may be either Tandem
Rights or Freestanding Rights. Tandem Rights may be awarded either at the time
the Option is granted or at any time prior to the exercise of the Option.
(b) Terms and Conditions
(i) 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.
(ii) The price per share specified in a Freestanding Right shall be
determined by the Committee, but in no event shall be less than the Fair Market
Value of the Common Shares as of the date of grant. The term of each
Freestanding Right shall be such period of time as the Committee shall
determine. Subject to the provisions of the Plan, each Freestanding Right shall
become vested as determined by the Committee. Prior to becoming 100% vested,
each Freestanding Right shall become exercisable, in installments or otherwise,
as the Committee shall determine. The Committee may also, in its discretion,
accelerate the exercisability of any Freestanding Right at any time, including a
Change in Control.
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<PAGE> 8
(c) Exercise
(i) Upon exercise of a Stock Appreciation Right, (subject, in the case
of a Tandem Right, to the surrender of the related Option or any unexercised
portion thereof which the Employee determines to surrender for this purpose) the
Employee shall be entitled 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 (A) the excess of (i)
the Fair Market Value on the exercise date of one Common Share over (ii) the
Option price per share, in the case of a Tandem Right, or the price per share
specified in the terms of a Freestanding Right, times (B) the number of Common
Shares with respect to which the Stock Appreciation Right shall have been
exercised.
(ii) Upon exercise of a Tandem Right, the number of Common Shares
subject to exercise under the related Option shall automatically be reduced by
the number of Common Shares represented by the Option or portion thereof
surrendered.
(iii) A Tandem Right related to an Incentive Stock Option may only be
exercised if the Fair Market Value of a Common Share on the exercise date
exceeds the Option price.
(d) Payments
(i) The payment described in subparagraph (c)(i) above shall be made in
the form of cash, Common Shares, or a combination thereof, as elected by the
Employee, provided that the Committee shall have sole discretion to consent to
or disapprove the election of an officer or director to receive all or part of a
payment in cash.
(ii) If upon exercise of a Stock Appreciation Right the Employee is to
receive a portion of the payment in Common Shares, the number of shares received
shall be determined by dividing such portion by the Fair Market Value of a share
on the exercise date. The number of Common Shares received may not exceed the
number of Common Shares covered by any Option or portion thereof surrendered.
Cash will be paid in lieu of any fractional share.
(iii) Whether payments to Employees upon exercise of Tandem Rights or
Freestanding Rights are made in cash, Common Shares or a combination thereof,
the Committee shall have sole discretion as to timing of the payments, whether
in one lump sum or in annual installments or otherwise deferred, which deferred
payments may in the Committee's sole discretion (i) bear amounts equivalent to
interest or cash dividends, (ii) be treated as invested in the manner from time
to time determined by the Committee, with dividends or other income thereon
being deemed to have been so reinvested, or (iii) for the convenience of the
Company, contributed to a trust, which may be revocable by the Company or
subject to the claims of its creditors, for investment in the manner from time
to time determined by the Committee and set forth in the instrument creating
such trust, all as the Committee shall determine.
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<PAGE> 9
(iv) No payment will be required from the Employee upon exercise of a
Stock Appreciation Right, 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 delivery of
cash or a certificate representing shares. The Committee may permit such amount
to be paid in (i) Common Shares previously owned by the Employee, (ii) a portion
of the Common Shares that otherwise would be distributed to such Employee upon
exercise of the right, or (iii) a combination of cash and Common Shares.
8. Restricted Shares or Restricted Units
(a) Awards
Restricted Stock or Restricted Stock Units may be awarded by the
Committee in its sole discretion. At the time an award of Restricted Shares or
Restricted Units is made, the Committee shall (i) establish a Restricted Period
applicable to such award, (ii) prescribe conditions for the incremental lapse of
restrictions during the Restricted Period, or for the lapse or termination of
restrictions upon the satisfaction or occurrence of other conditions in addition
to or other than the expiration of the Restricted Period, including a Change in
Control, and (iii) determine all other terms and conditions of such award,
including voting and dividend or dividend equivalent rights.
(b) Restrictions on Transfer
Upon the grant of Restricted Shares, a stock certificate representing
the number of Common Shares equal to 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 Company for the Employee's account. The Employee shall not be
entitled to delivery of the certificate or to sell, transfer, assign, pledge or
otherwise encumber the Restricted Shares until the expiration of the Restricted
Period and the satisfaction of any other conditions prescribed by the Committee.
Upon the forfeiture of any Restricted Shares, such forfeited Restricted Shares
shall be transferred to the Company without further action by the Employee.
(c) Delivery of Shares
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 Paragraph 12, a stock certificate for the number
of Common Shares with respect to which the restrictions have lapsed, or one
Common Share for each Restricted Unit 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. Fractional Shares will be paid in cash.
(d) Payment
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<PAGE> 10
No payment will be required from the Employee upon the issuance or
delivery of any Common 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 (i) Common Shares previously
owned by the Employee, (ii) a portion of the Common Shares that otherwise would
be distributed to such Employee upon the lapse of the restrictions applicable to
the Restricted Shares or Restricted Units, or (iii) a combination of cash and
Common Shares.
9. Performance Awards
(a) Grant
Performance Awards may be granted to any Employee by the Committee in
its sole discretion. A Performance Award shall consist of a right that is (i)
denominated in cash or Common Shares, (ii) valued, as determined by the
Committee, in accordance with the achievement of such performance goals during
such performance periods as the Committee shall establish, and (iii) payable at
such time and in such form as the Committee shall determine.
(b) Terms and Conditions
Subject to the terms of the Plan and any applicable Award Agreement,
the Committee shall (i) determine the performance goals to be achieved during
any performance period, (ii) the length of any performance period, (iii) the
amount of any Performance Award, (iv) the amount and kind of any payment or
transfer to be made pursuant to any Performance Award, and (v) all other terms
and conditions of any Performance Award, including the consequences of death,
Total Disability, termination of employment and Change in Control.
(c) Payment of Performance Awards
Performance Awards may be paid in a lump sum or in installments
following the close of the performance period or, in accordance with procedures
established by the Committee, on a current or deferred basis.
10. Other Stock-Based Awards
The Committee shall have authority to grant to eligible Employees an
"Other Stock-Based Award", which shall consist of any right that is an Award of
Common Shares or an Award denominated or payable in, valued in whole or in part
by reference to, or otherwise based on or related to, Common Shares (including,
without limitation, securities convertible into Common Shares), as deemed by the
Committee to be consistent with the purposes of the Plan, other than an Award
described in Paragraphs 6 through 9 above.
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<PAGE> 11
11. Termination of Employment
Unless otherwise determined by the Committee, and subject to such
restrictions as may be imposed by the Code in the case of any Incentive Stock
Options, in the event that the employment of an Employee to whom an Option or
Stock Appreciation Right has been granted under the Plan shall be terminated
(except as set forth in Paragraph 12), such Option or Stock Appreciation Right
may, subject to the provisions of the Plan, be exercised, to the extent that the
Employee was entitled to do so at the termination of his employment, at any time
within three months after such termination, but in no case later than the date
on which the Option or Stock Appreciation 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
prior to the end of the Restricted Period and the satisfaction of any other
conditions prescribed by the Committee for any reason other than death or Total
Disability, the Employee shall immediately forfeit all Restricted Shares and
Restricted Units.
12. Death or Total Disability of Employee
Unless otherwise determined by the Committee, if an Employee to whom an
Option or Stock Appreciation Right has been granted under the Plan shall die or
suffer a Total Disability while employed by the Company, such Option or Stock
Appreciation Right may be exercised, to the extent it was exercisable at the
date of such Employee's death or Total Disability, at any time within one year
after the date of the Employee's death or Total Disability, but in no case later
than the date on which the Option or Stock Appreciation Right otherwise
terminates.
If an Employee to whom Restricted Shares or Restricted Units have been
granted shall die or suffer a Total Disability prior to the end of the
Restricted Period and the satisfaction of any other conditions prescribed by the
Committee, or in cases of other special circumstances, the Committee may, in its
sole discretion, waive in whole or in part any or all remaining restrictions
with respect to such Employee's Restricted Shares or Restricted Units.
13. Non-Transferability of Awards
Awards granted under the Plan shall not be transferable other than by
will or the laws of descent and distribution, or pursuant to a qualified
domestic relations order as defined by Section 414(p) of the Code except to the
extent provided in any Award Agreement and permitted under applicable law.
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<PAGE> 12
14. Adjustment upon Changes in Capitalization, etc.
(i) The existence of outstanding Options or other Awards shall not
affect in any way the right or ability of the Company or its stockholders to
make or authorize any or all adjustments, recapitalizations, reorganizations or
other changes in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stock ahead of or affecting the Common Shares or the rights
hereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business or substantially all of
the outstanding stock of the Company, or any other corporate act or proceeding,
whether of a similar character or otherwise.
(ii) If the Company shall effect a subdivision, consolidation or
reclassification of the Common Shares or other capital readjustment or
recapitalization, the payment of a stock dividend, or other increase or
reduction in the number of the Common Shares outstanding, without receiving
compensation therefor in money, services or property, then the number, class,
and per share price of Common Shares shall be appropriately adjusted in such a
manner as to entitle Employees to receive, for the same aggregate cash
consideration, if applicable, the same total number and class of shares as he
would have received as a result of the event requiring the adjustment and the
number of shares of stock which may be issued under the Plan shall be
appropriately adjusted in order to prevent dilution or enlargement of rights.
(iii) Except as hereinbefore expressly provided, the issue by the
Company of shares of stock of any class, for cash or property, or for labor or
services, either upon direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of Common Shares then subject to outstanding options.
15. Effective Date
The Plan shall be effective as of September 1, 1999, provided that the
adoption of the Plan shall have been approved by the stockholders of the Company
not later than 12 months after such date. 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, (i) if the Company deems it necessary or desirable,
a Registration Statement under the Securities Act of 1933 with respect to such
Common Shares shall be effective, and (ii) any requisite approval or consent of
any governmental authority of any kind having jurisdiction over Awards granted
under the Plan shall be obtained.
16. Termination and Amendment
The Board may suspend, terminate, modify or amend the Plan at any time
without stockholder approval except as may be required by the Company's
Certificate of Incorporation,
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<PAGE> 13
applicable laws, regulations and exchange requirements. 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.
17. Miscellaneous
(a) Written Agreements
Each Award hereunder shall be evidenced by an Award Agreement which
shall contain such restrictions, terms and conditions as the Committee may
require.
(b) No Right to Employment
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 Company or
any of its subsidiaries or interfere in any way with the right of the Company or
any such subsidiary to terminate such employment at any time.
(c) Governing Law
The validity, construction, and effect of the Plan and any rules and
regulations relating to the Plan and any Award Agreement shall be determined in
accordance with the laws of the State of Delaware.
(d) Severability
If any provision of the Plan or any Award is or becomes or is deemed to
be invalid, illegal, or unenforceable in any jurisdiction or as to any Employee
or Award, or would disqualify the Plan or any Award under any law or regulations
deemed applicable, or the compliance with which is deemed desirable, including
any accounting rules or regulations, by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, rules or
regulations, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or
the Award, such provision shall be stricken as to such jurisdiction, Employee or
Award and the remainder of the Plan and any such Award shall remain in full
force and effect.
(e) Other Laws
The Committee may refuse to issue or transfer any Common Shares or
other consideration under an Award if, acting in its sole discretion, it
determines that the issuance or transfer of such Common Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act,
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<PAGE> 14
and any payment tendered to the Company by an Employee, other holder or
beneficiary in connection with the exercise of such Award shall be promptly
refunded to the relevant Employee, holder, or beneficiary.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer
to execute this Plan as of this 29th day of December, 1999.
AIRNET COMMUNICATIONS CORPORATION
By: /s/ R. Lee Hamilton, Jr.
--------------------------------
Title: President and Chief Operating
Officer
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