-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QXhNtssGqaKWYYcXzS5ZFoCtDy1p64IC2ORgrQcp4bbphjPZgJ2JIAxpbUCwh0OK tmOzS8SLw+CpxVErAR2bGQ== 0000910680-04-001194.txt : 20041115 0000910680-04-001194.hdr.sgml : 20041115 20041115165148 ACCESSION NUMBER: 0000910680-04-001194 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20041115 DATE AS OF CHANGE: 20041115 EFFECTIVENESS DATE: 20041115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TII NETWORK TECHNOLOGIES INC CENTRAL INDEX KEY: 0000277928 STANDARD INDUSTRIAL CLASSIFICATION: SWITCHGEAR & SWITCHBOARD APPARATUS [3613] IRS NUMBER: 660328885 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-120509 FILM NUMBER: 041146218 BUSINESS ADDRESS: STREET 1: 1385 AKRON ST CITY: COPIAGUE STATE: NY ZIP: 11726 BUSINESS PHONE: 5167895000 MAIL ADDRESS: STREET 1: 1385 AKRON STREET CITY: COPIAGUE STATE: NY ZIP: 11726 FORMER COMPANY: FORMER CONFORMED NAME: TII INDUSTRIES INC DATE OF NAME CHANGE: 19920703 S-8 1 fs8-11152004.txt NOVEMBER 15, 2004 As filed with the Securities and Exchange Commission on November 15, 2004 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________ TII NETWORK TECHNOLOGIES, INC. (Exact name of registrant as specified in its charter) Delaware 66-0328885 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1385 Akron Street, Copiague, New York 11726 (Address of Principal Executive Offices) (Zip Code) 2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (Full title of the plan) Timothy J. Roach, President TII Network Technologies, Inc. 1385 Akron Street Copiague, New York 11726 (Name and address of agent for service) (631) 789-5000 (Telephone number, including area code, of agent for service) with a copy to: Leonard W. Suroff, Esq. 1385 Akron Street Copiague, New York 11726 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------- PROPOSED PROPOSED TITLE OF MAXIMUM MAXIMUM EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION TO BE REGISTERED REGISTERED(1) SHARE (2) PRICE (2) FEE (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value, and associated Series D Junior Participating Preferred Stock, $1.00 par value, Purchase Rights(3) 500,000 shs $1.33 $665,000.00 $84.26
- -------------------------------------------------------------------------------- (1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all additional securities resulting from anti-dilution adjustments under the 2003 Non-Employee Director Stock Option Plan. (2) Estimated solely for the purpose of calculating the registration fee on the basis of, pursuant to Rules 457(h) and 457(c), the average of the high and low sales prices of the registrant's Common Stock on The Nasdaq Stock Market's National Market System on November 12, 2004. (3) Common Stock includes associated rights to purchase shares of the registrant's Series D Junior Participating Preferred Stock. Until the occurrence of certain prescribed events, none of which has occurred, the rights are not detachable from the Common Stock nor exercisable and will be transferred along with and only with the Common Stock. Accordingly, no separate registration fee is payable with respect thereto. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents heretofore filed by the Company with the Securities and Exchange Commission (File No. 1-8048) pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein by reference: (a) The registrant's Annual Report on Form 10-K for the fiscal year ended June 25, 2004; (b) The registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended September 24, 2004. (c) The description of the registrant's Common Stock contained in the registrant's Registration Statement on Form 8-A filed on November 3, 1980 under the 1934 Act and the description of the Company's Series D Junior Participating Preferred Stock Purchase Rights contained in the Company's Registration Statement on Form 8-A as filed May 15, 1998 under the 1934 Act, including any amendment or report filed for the purpose of updating such descriptions. All documents filed subsequent to the date of this Registration Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference 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 other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. II-1 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") provides, in general, that a corporation incorporated under the laws of the State of Delaware, such as the registrant, may indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding , whether civil, criminal, administrative or investigative (other than a derivative action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. In the case of a derivative action, a Delaware corporation may indemnify any such person against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court determines such person is fairly and reasonably entitled to indemnity for such expenses. Article XII of the registrant's By-laws provides that the registrant shall so indemnify such persons. In addition, Article 12 of the registrant's Restated Certificate of Incorporation, as amended, provides, in general, that no director of the registrant shall be personally liable to the registrant or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL (which provides that, under certain circumstances, directors may be jointly and severally liable for willful or negligent violations of the DGCL provisions regarding the payment of dividends or stock repurchases or redemptions), as the same exists or hereafter may be amended; or (iv) for any transaction from which the director derived an improper personal benefit. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. II-2 ITEM 8. EXHIBITS. Exhibit Number Description - ------ ----------- 4(a)(1) Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on December 10, 1996. Incorporated by reference to Exhibit 3 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended December 27, 1996 (File No. 1-8048). 4(a)(2) Certificate of Designation, as filed with the Secretary of State of the State of Delaware on January 26, 1998. Incorporated by reference to Exhibit 4.3 to the Company's Current Report on Form 8-K dated (date of earliest event reported) January 26, 1998 (File No. 1-8048). 4(a)(3) Certificate of Designation, as filed with the Secretary of State of the State of Delaware on May 15, 1998. Incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated (date of earliest event reported) May 7, 1998 (File No. 1-8048). 4(a)(4) Certificate of Amendment of the Company's Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on December 5, 2001. Incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated (dated of earliest event reported) December 5, 2001 (File No. 1-8048). 4(b) By-laws of the Company, as amended. Incorporated by reference to Exhibit 4.02 to Amendment No. 1 to the Company's Registration Statement on Form S-3 (File No. 33- 64980). 4(c) Rights Agreement, dated as of May 15, 1998, between the Company and Harris Trust of Chicago. Incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated (date of earliest event reported) May 7, 1998 (File No. 1-8048). 5* Opinion of Jenkens & Gilchrist Parker Chapin LLP as to the legality of the Common Stock being offered and consent. 23(a)* Consent of KPMG LLP. 23(b)* Consent of Jenkens & Gilchrist Parker Chapin LLP (included in Exhibit 5). 24+ Powers of Attorney of certain officers and directors of the registrant. 99(a)* Registrant's 2003 Non-Employee Director Stock Option Plan, as amended. 99(b)* Form of Stock Option Contract under Registrant's 2003 Non-Employee Director Stock Option Plan, as amended, for an initial option grant. 99(c)* Form of Stock Option Contract under Registrant's 2003 Non-Employee Director Stock Option Plan, as amended, for annual option grants. - ------------------ * Filed herewith. + Filed as part of the signature page of the original filing of this Registration Statement. II-3 ITEM 9. UNDERTAKINGS. 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; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the 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. 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 Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Copiague, State of New York, on the 15th day of November, 2004. TII NETWORK TECHNOLOGIES, INC. By: /s/ Timothy J. Roach ------------------------------------ Timothy J. Roach, President POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Timothy J. Roach, Kenneth A. Paladino and Leonard W. Suroff and each of them with power of substitution, as his attorney-in-fact, in all capacities, to sign any amendments to this registration statement (including post-effective amendments) and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-facts or their substitutes may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on the 15th day of November, 2004. Signature Title --------- ----- Chairman of the Board - -------------------------------- Alfred J. Roach /s/ Timothy J. Roach President (Chief Executive Officer) and - -------------------------------- Director Timothy J. Roach /s/ Kenneth A. Paladino Vice President - Finance and Treasurer - -------------------------------- (Chief Financial and Accounting Officer) Kenneth A. Paladino Director - -------------------------------- C. Bruce Barksdale /s/ Mark T. Bradshaw Director - -------------------------------- Mark T. Bradshaw /s/ Lawrence M. Fodrowski Director - -------------------------------- Lawrence M. Fodrowski /s/ R. D. Garwood Director - -------------------------------- R.D. Garwood /s/ James R. Grover, Jr. Director - -------------------------------- James R. Grover, Jr. /s/ Joseph C. Hogan Director - -------------------------------- Joseph C. Hogan Director - -------------------------------- Charles H. House II-5 EXHIBIT INDEX Exhibit Number Description - ------ ----------- 4(a)(1) Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on December 10, 1996. Incorporated by reference to Exhibit 3 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended December 27, 1996 (File No. 1-8048). 4(a)(2) Certificate of Designation, as filed with the Secretary of State of the State of Delaware on January 26, 1998. Incorporated by reference to Exhibit 4.3 to the Company's Current Report on Form 8-K dated (date of earliest event reported) January 26, 1998 (File No. 1-8048). 4(a)(3) Certificate of Designation, as filed with the Secretary of State of the State of Delaware on May 15, 1998. Incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated (date of earliest event reported) May 7, 1998 (File No. 1-8048). 4(a)(4) Certificate of Amendment of the Company's Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on December 5, 2001. Incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated (dated of earliest event reported) December 5, 2001 (File No. 1-8048). 4(b) By-laws of the Company, as amended. Incorporated by reference to Exhibit 4.02 to Amendment No. 1 to the Company's Registration Statement on Form S-3 (File No. 33- 64980). 4(c) Rights Agreement, dated as of May 15, 1998, between the Company and Harris Trust of Chicago. Incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated (date of earliest event reported) May 7, 1998 (File No. 1-8048). 5* Opinion of Jenkens & Gilchrist Parker Chapin LLP as to the legality of the Common Stock being offered and consent. 23(a)* Consent of KPMG LLP. 23(b)* Consent of Jenkens & Gilchrist Parker Chapin LLP (included in Exhibit 5). 24+ Powers of Attorney of certain officers and directors of the registrant. 99(a)* Registrant's 2003 Non-Employee Director Stock Option Plan, as amended. 99(b)* Form of Stock Option Contract under Registrant's 2003 Non-Employee Director Stock Option Plan, as amended, for an initial option grant. 99(c)* Form of Stock Option Contract under Registrant's 2003 Non-Employee Director Stock Option Plan, as amended, for annual option grants. - ---------------------- * Filed herewith. + Filed as part of the signature page of the original filing of this Registration Statement. EX-5 2 exhb5.txt EXHIBIT 5 EXHIBIT 5 [JENKENS & GILCHRIST PARKER CHAPIN LLP LETTERHEAD] November , 2004 TII Network Technologies, Inc. 1385 Akron Street Copiague, New York 11726 Re: TII Network Technologies, Inc. Dear Sir or Madam: We have acted as counsel to TII Network Technologies, Inc., a Delaware corporation (the "Company"), in connection with a Registration Statement on Form S-8 (the "Registration Statement") being filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), covering an aggregate of 500,000 shares of the Company's common stock, par value $.01 per share (the "Common Stock"), upon the exercise of options which have been, or may from time to time be, granted by the Company to non-employee directors of the Company under the Company's 2003 Non-Employee Director Stock Option Plan (the "Plan"), and such additional indeterminate number of shares of Common Stock as may be issued under the anti-dilution provisions of the Plan. In rendering the opinions expressed below, we have examined the Restated Certificate of Incorporation of the Company, as amended, the By-laws of the Company, as amended, and minutes of the corporate proceedings of the Company relating to the Plan. In addition, we have examined and relied upon such other matters of law, certificates and examinations of public officials as we have deemed relevant to the rendering of this opinion. We have not examined each option contract in respect of options granted under the Plan. We have, however, examined the form of option contract which the Company has advised us is the form of option contract used by it under the Plan. We have also been informed by the Company that each option contract between the Company and option holders under the Plan is substantially in the form of the option contract we have examined. In all of our examinations, we have assumed the accuracy of all information furnished to us and the genuineness of all documents and the conformity to originals of all documents submitted to us as certified, conformed, facsimile or photostatic copies thereof, as well as the genuineness of all signatures on all such documents. Our opinion is limited to the date hereof and we do not in any event undertake to advise you of any facts or circumstances occurring or coming to our attention subsequent to the date hereof. Finally, we are counsel admitted to practice only in the State of New York, and we express no opinions as to the applicable laws of any jurisdiction other than those of the State of New York, the General Corporation Law of the State of Delaware and the United States of America. Based upon and subject to the foregoing, we are of the opinion that the shares of the Company's Common Stock to be issued pursuant to the exercise of options granted or to be granted under the Plan will be, when issued pursuant to the provisions of the Plan, legally issued, fully paid and non-assessable. We hereby consent to the filing of a copy of this opinion as an exhibit to the Company's Registration Statement with respect to the Plan. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act, the rules and regulations of the Securities and Exchange Commission promulgated thereunder or Item 509 of Regulation S-K promulgated under the Act. Very truly yours, JENKENS & GILCHRIST PARKER CHAPIN LLP EX-23 3 exhb23a.txt EXHIBIT 23(A) EXHIBIT 23(A) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated August 30, 2004, included in TII Network Technologies, Inc.'s Form 10-K for the year ended June 25, 2004, and to all references to our firm included in this registration statement. /s/ KPMG LLP Melville, New York November 9, 2004 EX-99 4 exhb99a.txt 99.A EXHIBIT 99(A) TII NETWORK TECHNOLOGIES, INC. 2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (AS AMENDED EFFECTIVE SEPTEMBER 28, 2004) 1. PURPOSE OF THE PLAN The purpose of this 2003 Non-Employee Director Stock Option Plan (the "Plan") of TII Network Technologies, Inc., a Delaware corporation (the "Company"), is to make available shares of the Common Stock, par value $.01 per share, of the Company (the "Common Stock") for purchase by Directors who are not common law employees of the Company (the "Non-Employee Directors") and thus to attract and retain the services of experienced and knowledgeable Non-Employee Directors for the benefit of the Company and its stockholders and to provide additional incentive for such Non-Employee Directors to continue to work for the best interests of the Company and its stockholders through continuing ownership of Common Stock. 2. STOCK SUBJECT TO THE PLAN Subject to the provisions of Article 10, the total number of shares of Common Stock for which options may be granted under the Plan shall be 500,000. Shares issued under the Plan may be either authorized but unissued shares or shares which shall have been purchased or acquired by the Company for this or any other purpose. Such shares are from time to time to be allotted for option and sale to Non-Employee Directors in accordance with the Plan. In the event any option granted under the Plan shall expire, be canceled or terminate for any reason without having been exercised in full or shall cease for any reason to be exercisable in whole or in part, the unpurchased shares subject thereto shall again be available for grant under the Plan. 3. ADMINISTRATION OF THE PLAN The Plan shall be administered by the Board of Directors of the Company (the "Board"). The Board shall, subject to the express provisions of the Plan, grant options pursuant to the terms of the Plan; shall have the power to interpret the Plan, correct any defect, supply any omission or reconcile any inconsistency in the Plan; prescribe, amend and rescind rules and regulations relating to, but not inconsistent with, the Plan; determine the terms and provisions of the respective option agreements (which need not be identical); and make determinations necessary or advisable for the administration of the Plan. The determination of the Board on the matters referred to in this Article 3 shall be conclusive. No member of the Board shall be liable for any action or determination made in good faith with respect to the Plan or any options granted hereunder 4. OPTION GRANTS (a) Subject to clause (c) of this Article 4, each individual who subsequent to the day on which the Company's 2003 Annual Meeting of Stockholders is concluded becomes a Non- Employee Director for the first time shall, effective as of the date such person becomes a Non-Employee Director, be granted an initial option to purchase 24,000 shares of Common Stock (an "Initial Option"). (b) In addition, immediately following each annual meeting of stockholders at which Directors are elected which is held subsequent to the Company's 2003 Annual Meeting of Stockholders, each Non-Employee Director in office immediately following the conclusion of such meeting (whether or not elected at such meeting) shall, effective as of the date such meeting is held, be granted an option to purchase 5,000 shares of Common Stock plus 5,000 shares of Common Stock for each then standing Committee of the Board on which such director will be serving, and 2,000 shares of Common Stock for each such standing Committee of the Board as to which such director will be serving as Chairperson, immediately following the organization meeting of the newly elected Board following such annual meeting of stockholders ("Annual Options"), provided that an individual who becomes a Non-Employee Director for the first time at an annual meeting of stockholders shall only be granted an Initial Option under clause (a) of this Article 4 and options with respect to such Committee memberships and Chairpersonships under this clause (b) of this Article 4. (c) An employee of the Company who ceases such relationship shall not be deemed to become a Non-Employee Director unless and until he or she is serving as a Non-Employee Director immediately following the conclusion of the next annual meeting of stockholders at which Directors are elected (including if such person is not subject to election as a Director at such meeting) and shall not be entitled to an Initial Option. 5. OPTION PRICE The exercise price at which shares of the Common Stock may be purchased pursuant to options granted under the Plan shall be 100% of the fair market value of the Common Stock on the date an option is granted, but not less than the par value of the Common Stock. The fair market value of the Common Stock on any day shall be (a) if actual sales price information is generally reported for the Common Stock on its principal market, the closing price of the Common Stock on such day (or last day of trade prior to such day if not traded on such day), (b) if actual sales price information is not generally reported for the Common Stock on its principal market, the mean between the highest bid and lowest asked prices for the Common Stock on such day (or the last day quoted prior to such day if not quoted on such day), in each case as reported by such market or on a consolidated tape reflecting transactions on such market, or (c) if neither of the above are applicable, the mean between the then current highest independent bid and lowest independent asked prices for the Common Stock, determined by the Board (the determination of which shall be conclusive) on the basis of reasonable inquiry. 6. TERM OF EACH OPTION The term of each option shall be ten years (the "Scheduled Expiration Date"), subject to earlier termination as provided in the Plan. 7. EXERCISE OF OPTIONS (a) An Initial Option, subject to the provisions of Article 9, shall vest and become exercisable, on a cumulative basis, in twelve equal quarterly installments commencing one year following the date of grant. Annual Options, subject to the provisions of Article 9, shall vest and be exercisable in four equal quarterly installments commencing immediately upon grant. (b) A Non-Employee Director purchasing less than the number of shares available to him or her in any period under the option may purchase any such unpurchased shares in any subsequent period of the option term. (c) The option shall not be exercisable at any time in an amount less than 100 shares (or the remaining shares then covered by and purchasable under the option if less than 100 shares). In no case may a fraction of a share be exercised, purchased or issued under the Plan. (d) The purchase price of the shares as to which an option shall be exercised shall be paid in full in cash or by check at the time of exercise. In addition, the Non-Employee Director shall pay to the Company in cash, upon demand, the amount, if any, which the Company determines is necessary to satisfy its obligation to withhold federal, state and local income and other taxes or other amounts incurred by reason of the grant or exercise of the option. (e) An option (or any part thereof), to the extent then exercisable, shall be exercised by giving written notice to the Company at its principal office, specifying the number of shares of Common Stock as to which such option is being exercised and accompanied by payment in full of the aggregate exercise price therefor. (f) A Non-Employee Director entitled to receive shares of Common Stock upon the exercise of an option shall not have the rights of a stockholder with respect to such shares of Common Stock until the date of issuance of a stock certificate to him or her for such shares. (g) Nothing in the Plan or in any option granted under the Plan shall confer on any Non-Employee Director any right to continue as a director of the Company. 8. NON-TRANSFERABILITY OF OPTIONS No option granted under the Plan shall be transferable other than by will or the laws of descent and distribution by the Non-Employee Director or his or her legal representatives, and may be exercised during the Non-Employee Director's lifetime only by him or her. Except to such extent, options may not be assigned, transferred, pledged, hypothecated or disposed of in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment or similar process. 9. TERMINATION OF SERVICES ON THE BOARD OF DIRECTORS In the event that a Non-Employee Director to whom an option has been granted under the Plan shall cease to serve on the Board for any reason (including as a result of not being re-elected to the Board, death or disability), such option may be exercised in whole or in part by the Non-Employee Director, at any time within one year after such cessation of service but not thereafter, and in no event after the scheduled expiration date of the option; provided, however, that if his or her service on the Board shall have been terminated for cause or if he or she resigns without the consent of a majority of the remaining members of the Board, his or her options shall terminate immediately. 10. ADJUSTMENT OF AND CHANGES IN COMMON STOCK (a) In the event of any change in the outstanding Common Stock by reason of a stock dividend, stock split, stock combination, recapitalization, spin-off, split up, merger in which the Company is the surviving corporation, reorganization or the like, the aggregate number and kind of shares subject to the Plan, the number and kind of shares to be granted initially and annually, and the aggregate number and kind of shares subject to each outstanding option and the exercise price thereof shall be adjusted by the Board in a manner similar to the antidilution adjustments made under the Company's employee stock option plans. (b) In the event of (i) the liquidation or dissolution of the Company, (ii) a merger or consolidation in which the Company is not the surviving corporation, or (iii) any other capital reorganization in which more than 50% of the shares of Common Stock of the Company are exchanged, outstanding options shall terminate, unless other provision is made therefor in the transaction (which provision shall be made in a manner similar to the provision made for options granted under the Company's employee stock option plans). 11. COMPLIANCE WITH SECURITIES LAWS (a) It is a condition to the exercise of any option that either (i) a Registration Statement under the Securities Act of 1933, as amended, or any succeeding act (collectively, the "Securities Act"), with respect to its underlying shares shall be effective and current at the time of exercise of the option or (ii) in the opinion of counsel to the Company, there shall be an exemption from registration under the Securities Act for the issuance of shares of Common Stock upon such exercise. Nothing herein shall be construed as requiring the Company to register shares subject to the Plan for issuance or for resale. (b) In connection with fulfilling the condition set forth in clause (a)(ii) of this Article 11, the Company may require a Non-Employee Director, as a condition to the exercise of an option, to execute and deliver to the Company representations and warranties, in form and substance satisfactory to counsel to the Company, that (i) the shares of Common Stock to be issued upon the exercise of the option are being acquired by the Non-Employee Director for his or her own account, for investment only and not with a view to the resale or distribution thereof, all within the meaning of the Securities Act, and (ii) any subsequent resale or distribution of shares of Common Stock by such Non-Employee Director will be made only pursuant to (x) a Registration Statement under the Securities Act which is effective and current with respect to the shares of Common Stock being sold at the time of sale or (y) a specific exemption from the registration requirements of the Securities Act, but in claiming such exemption, the Non-Employee Director shall, prior to any offer or sale or distribution of such shares of Common Stock, provide the Company with a favorable written opinion of counsel, in form and substance satisfactory to counsel to the Company, as to the applicability of such exemption to the proposed sale or distribution. The Company may endorse such legend or legends upon the certificates for shares of Common Stock issued upon exercise of an option under the Plan, and may issue such "stop transfer" instructions to its transfer agent in respect of such shares, as it determines, in its discretion, to be necessary or appropriate to prevent a violation of, or to perfect an exemption from, the registration requirements of the Securities Act. (c) The Company may also require, as a further condition to the exercise of an option, in whole or in part, that the shares of Common Stock underlying such option or the Plan be specifically listed on the securities markets on which the Company's Common Stock is traded and be registered or qualified under any applicable state securities laws, and that the consent or approval of any governmental regulatory body, which the Company deems necessary or desirable as a condition to the exercise of such option or the issue of shares thereunder, shall have been effected or obtained free of any conditions requiring the Company to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction wherein it has not already done so and free of any other conditions not customarily imposed by a securities exchange, law or governmental regulatory body in connection with such listing, qualification, consent or approval. 12. AMENDMENT AND TERMINATION The Board may amend, suspend or terminate the Plan or any portion thereof at any time. The Board may not, without the approval of the Company's stockholders within 12 months after the date of adoption of any such amendment or amendments, make any alteration or amendment thereof which (i) makes any change in the class of eligible participants as determined in accordance with Articles 1 and 4 hereof; (ii) increases the total number of shares of Common Stock for which options may be granted under the Plan except as provided in Article 10 hereof; (iii) decreases the option exercise price provided in Article 5 hereof except as provided in Article 10 hereof; or (iv) materially increases the benefits accruing to participants under the Plan within the meaning of Rule 16b-3. No amendment shall adversely affect the rights under any then outstanding option without the consent of the holder thereof. 13. STOCK OPTION CONTRACTS Each option shall be evidenced by an appropriate contract which shall be duly executed by the Company and the Non-Employee Director, and shall contain such terms and conditions not inconsistent with the Plan as may be determined by the Board. 14. DUTIES OF THE COMPANY The Company shall, at all times during the term of each option, reserve and keep available for issuance or delivery such number of shares of Common Stock as will be sufficient to satisfy the requirements of all options at the time outstanding, shall pay all original issue taxes with respect to the issuance or delivery of shares pursuant to the exercise of such options and all other fees and expenses necessarily incurred by the Company in connection therewith. 15. EFFECTIVE PERIOD The Plan shall become effective on September 24, 2003, the date of its adoption by the Board of Directors; provided, however that if the Plan is not approved within 12 months thereof by the favorable vote of stockholders then required for such action under the Delaware General Corporation Law at a meeting to be held to consider such approval, the Plan and any options granted under the Plan will be null and void and of no further effect. No options may be granted under the Plan after September 23, 2013. Options outstanding on or prior to such date shall, however, in all respects continue subject to the Plan. EX-99 5 exhb99b.txt 99.B EXHIBIT 99(B) THIS STOCK OPTION AGREEMENT entered into as of ______________ between TII NETWORK TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and _____________ ("Optionee"). W I T N E S S E T H: WHEREAS, the Board of Directors of the Company has adopted, and the Company's stockholders have approved at the Company's 2003 Annual Meeting of Stockholders, the Company's 2003 Non-Employee Director Stock Option Plan, as amended on September 28, 2004 (the "Plan"), to foster the Company's ability to attract and retain the services of experienced and knowledgeable directors who are not common law employees of the Company and to provide additional incentive for such directors to continue to work for the best interests of the Company and its stockholders through the continuing ownership of shares of the Company's Common Stock, $.01 par value per share (the "Common Stock"); NOW, THEREFORE, in consideration of the foregoing and the covenants contained herein, it is hereby agreed: 1. The Company, in accordance with and subject to the terms and conditions of this Agreement and the Plan, grants to Optionee a stock option to purchase up to an aggregate of ________shares of Common Stock at an exercise price of $_____ per share (such number of shares and exercise price being subject to adjustment as provided in the Plan). 2. This option shall expire at 5:00 P.M., New York time, on ____________, subject to earlier termination as provided in the Plan. 3. This option shall vest and become exercisable, on a cumulative basis, in twelve equal quarterly installments commencing one year following the date hereof. Notwithstanding the foregoing, this option may not be exercised at any time in an amount less than 100 shares (or the remaining shares then covered by and purchasable under this option if less than 100 shares). This option may not be exercised in respect of a fraction of a share. 4. This option shall be exercised by the giving of written notice to the Company at its New York office, presently 1385 Akron Street, Copiague, New York 11726, Attention: Vice President-Administration, specifying the number of shares of Common Stock being purchased and accompanied by the payment in full of the aggregate exercise price for the shares to be purchased in cash or by check. Optionee shall not have the rights of a stockholder with respect to shares subject to this option until the date of issuance of a stock certificate to Optionee for such shares. In addition, Optionee shall pay to the Company in cash or by check, upon demand, the amount, if any, which the Company determines is necessary to satisfy its obligation to withhold federal, state and local income and other taxes or other amounts incurred by reason of the grant or exercise of this option. 5. It is a condition to the exercise of this option that either (i) a Registration Statement under the Securities Act of 1933, as amended, or any succeeding act (collectively, the "Securities Act"), with respect to the shares underlying this option shall be effective and current at the time of exercise of this option or (ii) in the opinion of counsel to the Company, there shall be an exemption from registration under the Securities Act for the issuance of shares of Common Stock upon such exercise. Nothing herein shall be construed as requiring the Company to register shares subject to the Plan for issuance or for resale. 6. This option is subject to all of the terms and conditions of the Plan, receipt of a copy of which is acknowledged by Optionee. In the event of a conflict between the terms of this option and the terms of the Plan, the terms of the Plan shall govern. The Company may amend the Plan and options granted to the Optionee under the Plan, subject to the limitations contained in the Plan. 7. This option may not be transferred otherwise than by will or the laws of descent and distribution and may be exercised, during Optionee's lifetime, only by Optionee or Optionee's legal representatives. 8. This option shall be binding upon and inure to the benefit of any successor or assign of the Company and to the executor, administrator or other legal representative entitled by law and the Plan to the Optionee's rights hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. TII NETWORK TECHNOLOGIES, INC. By: ------------------------------------ Timothy J. Roach, President ------------------------------------ (Optionee) ------------------------------------ (Optionee Address) EX-99 6 exhib99c.txt 99.C EXHIBIT 99(C) THIS STOCK OPTION AGREEMENT entered into as of ______________ between TII NETWORK TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and _____________ ("Optionee"). W I T N E S S E T H: WHEREAS, the Board of Directors of the Company has adopted, and the Company's stockholders have approved at the Company's 2003 Annual Meeting of Stockholders, the Company's 2003 Non-Employee Director Stock Option Plan, as amended on September 28, 2004 (the "Plan"), to foster the Company's ability to attract and retain the services of experienced and knowledgeable directors who are not common law employees of the Company and to provide additional incentive for such directors to continue to work for the best interests of the Company and its stockholders through the continuing ownership of shares of the Company's Common Stock, $.01 par value per share (the "Common Stock"); NOW, THEREFORE, in consideration of the foregoing and the covenants contained herein, it is hereby agreed: 1. The Company, in accordance with and subject to the terms and conditions of this Agreement and the Plan, grants to Optionee a stock option to purchase up to an aggregate of ________shares of Common Stock at an exercise price of $_____ per share (such number of shares and exercise price being subject to adjustment as provided in the Plan). 2. This option shall expire at 5:00 P.M., New York time, on ____________, subject to earlier termination as provided in the Plan. 3. This option shall vest and become exercisable, on a cumulative basis, in four equal quarterly installments commencing on the date hereof. Notwithstanding the foregoing, this option may not be exercised at any time in an amount less than 100 shares (or the remaining shares then covered by and purchasable under this option if less than 100 shares). This option may not be exercised in respect of a fraction of a share. 4. This option shall be exercised by the giving of written notice to the Company at its New York office, presently 1385 Akron Street, Copiague, New York 11726, Attention: Vice President-Administration, specifying the number of shares of Common Stock being purchased and accompanied by the payment in full of the aggregate exercise price for the shares to be purchased in cash or by check. Optionee shall not have the rights of a stockholder with respect to shares subject to this option until the date of issuance of a stock certificate to Optionee for such shares. In addition, Optionee shall pay to the Company in cash or by check, upon demand, the amount, if any, which the Company determines is necessary to satisfy its obligation to withhold federal, state and local income and other taxes or other amounts incurred by reason of the grant or exercise of this option. 5. It is a condition to the exercise of this option that either (i) a Registration Statement under the Securities Act of 1933, as amended, or any succeeding act (collectively, the "Securities Act"), with respect to the shares underlying this option shall be effective and current at the time of exercise of this option or (ii) in the opinion of counsel to the Company, there shall be an exemption from registration under the Securities Act for the issuance of shares of Common Stock upon such exercise. Nothing herein shall be construed as requiring the Company to register shares subject to the Plan for issuance or for resale. 6. This option is subject to all of the terms and conditions of the Plan, receipt of a copy of which is acknowledged by Optionee. In the event of a conflict between the terms of this option and the terms of the Plan, the terms of the Plan shall govern. The Company may amend the Plan and options granted to the Optionee under the Plan, subject to the limitations contained in the Plan. 7. This option may not be transferred otherwise than by will or the laws of descent and distribution and may be exercised, during Optionee's lifetime, only by Optionee or Optionee's legal representatives. 8. This option shall be binding upon and inure to the benefit of any successor or assign of the Company and to the executor, administrator or other legal representative entitled by law and the Plan to the Optionee's rights hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. TII NETWORK TECHNOLOGIES, INC. By: ---------------------------------- Timothy J. Roach, President ---------------------------------- (Optionee) ---------------------------------- (Optionee Address) -----END PRIVACY-ENHANCED MESSAGE-----