-----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, Qr+NYTri8PItHFz+2/tfK1ucUkm7D4MsQsOSsRs5NhmXyfFG+mXui11GJsxKK1OK nAwbDTYpvYBsMaGuwAdYEA== 0000278352-01-500019.txt : 20020410 0000278352-01-500019.hdr.sgml : 20020410 ACCESSION NUMBER: 0000278352-01-500019 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20011114 EFFECTIVENESS DATE: 20011114 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SYMBOL TECHNOLOGIES INC CENTRAL INDEX KEY: 0000278352 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 112308681 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-73322 FILM NUMBER: 1789674 BUSINESS ADDRESS: STREET 1: ONE SYMBOL PLAZA CITY: HOLTSVILLE STATE: NY ZIP: 11742-1300 BUSINESS PHONE: 5165632400 MAIL ADDRESS: STREET 1: ONE SYMBOL PLAZA CITY: HOLTSVILLE STATE: NY ZIP: 11742-1300 S-8 1 registr1.txt S-8 LIVE FILING As filed with the Securities and Exchange Commission Registration No. 33 - on November 14, 2001 ______________________________________________________________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ____________________________ 2001 Non-Executive Stock Option Plan and 1997 Employee Stock Option Plan SYMBOL TECHNOLOGIES, INC. (Exact name of registrant as specified in its charter) Delaware 11-2308681 (State or other jurisdiction of (I.R.S. Employer Identification incorporation or organization) Number) One Symbol Plaza Holtsville, New York 11742-1300 (631) 738-2400__________ (Address of registrant's principal executive offices) Mr. Tomo Razmilovic Leonard H. Goldner, Esq. Chief Executive Officer and Executive Vice President and President General Counsel Symbol Technologies, Inc. Symbol Technologies, Inc. One Symbol Plaza One Symbol Plaza Holtsville, New York 11742-1300 Holtsville, New York 11742-1300 (631) 738-2400 (631) 738-2400 _______________________________________________________ (Name and address of agents for service) -1- CALCULATION OF REGISTRATION FEE _______________________________________________________________________________ Proposed Title of Each Proposed Maximum Class of maximum aggregate Amount of Securities to Amount to be offering price offering registration Be registered Registered* per share** price** fee Common Stock 7,500,000 $15.59 $116,925,000 $29,231.25 2001 Non- Executive Stock Option Plan Common Stock 5,812,500 $15.59 $90,616,875 $22,654.21 1997 Employee Stock Purchase Plan ______________________________________________________________________________ TOTAL $51,885.46 * There are also being registered (1) such additional indeterminate number of shares of the Registrant's Common Stock as may be required to cover possible adjustments under the plan; and (2) such indeterminable amount of interests in the Plan that are deemed to be separate securities under the Securities Act of 1933. ** Estimated solely for the purpose of calculation of the registration fee, on the basis of the average high and low prices of the Registrant's Common Stock as quoted on the New York Stock Exchange on a date within five (5) days of filing hereof. -2- PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The document(s) containing information specified by Part I of this Form S-8 Registration Statement (the "Registration Statement") will be or have been sent or given to participants in the plan listed on the cover of the Registration Statement (the "Plan") as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the 1933 Act. Such document(s) are not being filed with the Commission but constitute (along with the documents incorporated by reference into the Registration Statement pursuant to Item 3 of Part II hereof), a prospectus that meets the requirements of Section 10(a) of the 1933 Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed with the Commission are incorporated herein by reference: (1) Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000 which is the Company's latest Annual Report on Form 10- K filed pursuant to Section 13(a) of 15(d) of the Securities and Exchange Act of 1934 (the "Exchange Act") which contains certified financial statements for the Company's latest fiscal year for which a Form 10-K was required to have been filed. (2) Quarterly Reports on Form 10Q for the quarterly periods ending March 31, 2001, June 30, 2001 and September 30, 2001 filed pursuant to the Exchange Act. (3) The description of the Company's Common Stock which is contained in a registration statement on Form 8-B dated November 23, 1987 filed under Section 12 of the Exchange Act, including any amendment or reports filed for the purpose of updating such information. All documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the time of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Prospectus 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. Any such statement so modified or so superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Item 4. Not applicable -3- Item 5. Interests of Named Experts and Counsel Certain legal matters related to this offering have been passed upon for the Company by Leonard H. Goldner, Executive Vice President, General Counsel and Secretary of the Company. As of November 1, 2001, Mr. Goldner, owned in the aggregate 383,343 shares of Common Stock. In addition, Mr. Goldner owns options to purchase an aggregate of 760,309 shares of Common Stock (including options to purchase 286,875 shares held by a Trust of which Mr. Goldner is a Co-Trustee and a beneficiary). Mr. Goldner's wife owns 9,225 shares of the Common Stock of the Company and is co-trustee of a trust which owns options to purchase 253,123 shares of Common Stock. Mr. Goldner disclaims beneficial ownership of any shares held by his wife or this trust. Item 6. Indemnification of Directors and Officers The indemnification of officers and directors of the Company is governed by Section 145 of the General Corporation Law of the State of Delaware (the "DGCL"). Among other matters, the DGCL permits indemnification of a director, officer, employee or agent in civil, criminal, administrative or investigative actions, suits or proceedings (other than any action by or in the right of the corporation) to which such person is a party or is threatened to be made a party by reason of the fact of such relationship with the corporation or the fact that such person is or was serving in a similar capacity with another entity at the request of the corporation against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe his conduct was unlawful. Indemnification in a suit by or in the right of the corporation is permitted if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, but no indemnification may be made in such suit to any person adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which the action was brought determines that, despite the adjudication of liability, such person is under all circumstances, fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. Under the DGCL, to the extent that a director, officer, employee or agent is successful, on the merits or otherwise, in the defense of any action, suit or proceeding or any claim, issue or matter therein (whether or not the suit is brought by or in the right of the corporation), he shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred by him. In all cases in which indemnification is permitted (unless ordered by a court), it may be made by the corporation only as authorized in the specific case upon a determination that the applicable standard of conduct has been met by the party to be indemnified. The determination must be made by a majority vote of a quorum consisting of the directors who were not parties to the action or, if such a quorum is not obtainable, or even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or by the stockholders. The statute authorizes the corporation to pay expenses incurred by an officer or director in advance of a final disposition of a proceeding upon receipt of an undertaking, by or on behalf of the person to whom the advance will be made, to repay the advance if it shall ultimately be determined that he was not entitled to indemnification. The DGCL provides that indemnification and advances of expenses permitted thereunder are not to be exclusive of any rights to which those seeking indemnification or advancement of expenses may be entitled under any -4- by-law, agreement, vote of stockholders or disinterested directors, or otherwise. The Company's by-laws provide that the Company shall indemnify its officers and directors to the fullest extent permitted by law. Such by-law provisions are intended to be broader than the statutory indemnification provided in the DGCL. However, the extent to which such broader indemnification may be permissible under Delaware law has not been established. The DGCL also authorizes a corporation to purchase and maintain liability insurance on behalf of its directors, officers, employees and agents regardless of whether the corporation would have the statutory power to indemnify such persons against the liabilities insured and the Company maintains such insurance. The Certificate of Incorporation of the Company provides that no director of the Company shall be personally liable to the Company or its shareholders for monetary damages for breach of fiduciary duty as director except for liability (i) for any breach of the director's duty of liability to the Company or its shareholders, (ii) for acts of omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for paying a dividend or approving a stock repurchase in violation of Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. The Company has agreements with all directors and executive officers pursuant to which they are indemnified to the maximum extent allowable by Delaware law. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed 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. Item 7. Not Applicable Item 8. Exhibits 4.1 2001 Non-Executive Stock Option Plan 4.2 1997 Employee Stock Option Plan, as amended 5(a) Opinion and Consent of Leonard H. Goldner 23.1 Consent of Deloitte & Touche 23.2 Consent of Leonard H. Goldner (included in Exhibit 5(a)) 24 Power of Attorney of Directors and certain officers of the Company (see page 8) Item 9. Undertakings (a) The undersigned registrant hereby undertakes: -5- (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 1933 Act; (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, represents a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (sec. 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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)(l)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 (sec. 239.13 of this chapter) or Form S-8 (sec. 239.16b of this chapter) 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 section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, 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 1933 Act 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 Commission such indemnification is against public policy as expressed in the 1933 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 -6- 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 1933 Act and will be governed by the final adjudication of such issue. POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Dr. Jerome Swartz, Tomo Razmilovic and Leonard H. Goldner, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or 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 attorneys-in- fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof and the registrant hereby confers like authority on its behalf. 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 Hamlet of Holtsville, State of New York, on this 13th day of November, 2001. SYMBOL TECHNOLOGIES, INC. By /s/Tomo Razmilovic Tomo Razmilovic Chief Executive Officer and President -7- Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date Chief Executive Officer, President and Director /s/Tomo Razmilovic (Principal Executive Officer) November 13, 2001 Tomo Razmilovic Chairman of the Board, /s/ Jerome Swartz and Director November 13, 2001 Jerome Swartz /s/ Raymond R. Martino Director November 13, 2001 Raymond R. Martino /s/ Harvey P. Mallement Director November 13, 2001 Harvey P. Mallement /s/ George Bugliarello Director November 13, 2001 George Bugliarello /s/ Charles B. Wang Director November 13, 2001 Charles B. Wang /s/ Leo A. Guthart Director November 13, 2001 Leo A. Guthart /s/ James Simons Director November 13, 2001 James Simons 468: /s/ Kenneth V. Jaeggi Senior Vice President November 13, 2001 Kenneth V. Jaeggi Finance (Chief Financial Officer) /s/ Robert Korkuc Vice President and Robert Korkuc Controller (Chief Accounting November 13, 2001 Officer) -8- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 __________________________________ EXHIBITS TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________________________________ SYMBOL TECHNOLOGIES,INC. -9- EXHIBIT INDEX Sequentially Numbered Exhibit Page 4.1 2001 Non-Executive Stock Option Plan, as amended 11 4.2 1997 Employee Stock Option Plan, as amended 16 5(a) Opinion and Consent of Leonard H. Goldner 24 23.1 Consent of Deloitte & Touche 27 23.2 Consent of Leonard H. Goldner 29 (included in Exhibit 5(a)) 24 Power of Attorney of Directors and certain officers 30 of the Company (see page 7 of Form S-8) -10- EXHIBIT 4.1 -11- 2001 NON-EXECUTIVE STOCK OPTION PLAN SYMBOL TECHNOLOGIES, INC. The Company has duly adopted the Plan, the terms of which are hereby incorporated by reference. In the case of any conflict between the provisions hereof and those of the Plan, the provisions of the Plan shall be controlling. A copy of the Plan will be made available for inspection by the Optionee during normal business hours at the principal office of the Company. In accordance with Paragraph 3 of the Plan, the Board of Directors of the Company (the "Board") has designated by resolution of the Board, a Committee of the Board which administers the Plan (the "Committee"). The Committee has adopted a resolution granting the Optionee a stock option (the "Option") under the Plan to purchase shares of the Company's Common Stock, par value $.01 per share (the "Shares"), for the price and on the terms and conditions set forth in this Agreement and in the Plan. 1. (a) Except as provided in subparagraph (b) hereof, regardless of the Expiration Date of this Option, the Option shall cease to be exercisable on the date the Optionee voluntarily or involuntarily terminates his services as an employee of the Company or any subsidiary of the Company, and all rights of the Optionee hereunder shall thereupon terminate. (b) If the Optionee ceases to be an employee of the Company or any subsidiary of the Company and this cessation is due to retirement (as defined by the Board or, if so designated, by the Committee in its sole discretion) or to death, the Option shall be exercisable as provided in this subparagraph. The Optionee or, in the event of his disability, his duly appointed guardian or, in the event of his death, his executor or administrator shall have the privilege of exercising the unexercised portion of the Option which the Optionee could have exercised on the day on which he ceased to be an employee of the Company or any subsidiary of the Company, provided, however, that such exercise must be in accordance with the terms of this Agreement and within three (3) months of the Optionee's retirement or within one (1) year of the Optionee's disability or death, as the case may be. In no event, however, shall the Optionee or his guardian, executor or administrator, as the case may be, exercise the Option after the Expiration Date. For all purposes of this Agreement, an approved leave of absence shall not constitute an interruption or cessation of the Optionee's service as an employee of the Company or any subsidiary of the Company. 2. Nothing contained herein shall be construed to confer on the Optionee any right to continue as an employee of the Company or any subsidiary of the Company or to derogate from any right of the Company or any subsidiary thereof to retire, request the resignation thereof or discharge the Optionee, or to lay off or require a leave of absence of the Optionee, with or without pay, at any time, with or without cause. 3. The Option shall not be sold, pledged, assigned or transferred in any manner except to the extent that the Option may be exercised by an executor or administrator as provided in subparagraph 1 (b) above. The Option may be exercised, during the lifetime of the Optionee, only by the Optionee. 4. (a) If the outstanding Shares of the Company are subdivided, consolidated, increased, decreased, changed into or exchanged for a different number or kind of shares or securities of the Company through reorganization, merger, recapitalization, reclassification, capital adjustment or otherwise, -12- or if the Company shall issue Shares as a dividend or upon a stock split, then the number and kind of shares subject to the unexercised portion of the Option and the exercise price of the Option shall be adjusted to prevent the inequitable enlargement or dilution of any rights hereunder, provided, however, that any such adjustment shall be made without change in the total exercise price applicable to the unexercised portion of the Option except that the exercise price may be rounded to the nearest one cent. Adjustments under this paragraph shall be made by the Board or, if so designated, by the Committee, whose determination shall be final and binding and conclusive. In computing any adjustment under this paragraph, any fractional share shall be eliminated. Nothing contained in this Agreement shall be construed to affect in any way the right or power of the Company to make any adjustment, reclassification, reorganization, or changes to its capital or business structure or to merge or to consolidate or to dissolve, liquidate or transfer all or any part of its business or assets. (b) If in the event of a merger or consolidation in which the Company is not the surviving corporation, and in the event that the agreements governing such merger or consolidation do not provide for the substitution of new options or other rights in lieu of this Option or for the express assumption of this Option by the surviving corporation, or in the event of a dissolution or liquidation of the Company, the Optionee shall have the right no less than five (5) days prior to the record date (the "Record Date") for the determination of shareholders entitled to participate in such merger, consolidation, dissolution or liquidation to exercise the Option in whole or in part, without regard to any installment provisions contained in this Agreement; provided, that any conditions precedent to such exercise set forth in this Agreement, other than the passage of time, have occurred. In such event, the Company will mail or cause to be mailed to the Optionee a notice specifying the Record Date. Such notice shall be mailed at least ten (10) days prior to the date therein specified to the address as the Optionee delivers or transmits by registered or certified mail to the Secretary of the Company at its principal office. In the event the Option is not exercised on or prior to the date specified therein, the Option and any rights hereunder shall terminate as of said date. 5. This Option shall be exercised when written notice of such exercise, signed by the person entitled to exercise the Option, has been delivered or transmitted by registered or certified mail, to the secretary of the Company at its principal office. Such written notice shall specify the number of Shares purchasable under the Option which such person then wishes to purchase and shall be accompanied by (i) such documentation, if any, as may be required by the Company as provided in Paragraph 7 and (ii) payment of the aggregate option price. Payment shall be in the form of (i) cash or a certified check (unless such certification is waived by the Company) payable to the order of the Company in the amount of the aggregate option price for such number of Shares, (ii) certificates duly endorsed for transfer (with all transfer taxes paid or provided for) evidencing a number of shares of Common Stock of the Company (provided, however, that the Optionee has owned such Shares for at least six months) of which the aggregate fair market value (as that phrase is defined in the Plan) on the date of exercise is equal to the aggregate option exercise price of the Shares being purchased, (iii) by delivering to the Company (a) irrevocable instructions to deliver the stock certificates representing the Shares for which the Option is being exercised directly to a broker, and (b) instructions to the broker to sell such Shares and promptly deliver to the Company the portion of sales proceeds equal to the aggregate option exercise price, or (iv) a combination of these methods of -13- payment. Delivery of said notice and such documentation shall constitute an irrevocable election to purchase the Shares specified in said notice and the date on which the Company receives said notice and documentation shall, subject to the provisions of Paragraphs 6 and 7, be the date as of which the Shares so purchased shall be deemed to have been issued. The person entitled to exercise the Option shall not have the right or status as a holder of the Shares to which such exercise relates prior to receipt by the Company of such payment, notice and documentation. 6. Anything in this Agreement to the contrary notwithstanding, in no event may the Option be exercisable if the Company shall, at anytime and in its sole discretion, determine that (i) the listing, registration, qualification of any shares otherwise deliverable upon such exercise, upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any regulatory body or the satisfaction of withholding tax or other withholding liabilities is necessary or desirable in connection with such exercise. In such event, such exercise shall be held in abeyance and shall not be effective unless and until such withholding, listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to the Company. 7. The Committee may require as a condition to the right to exercise the Option hereunder that the Company receive from the person exercising the Option, representations, warranties and agreements, at the time of any such exercise, to the effect that the Shares are being purchased without any present intention to sell or otherwise distribute such Shares except in compliance with the Securities Act of 1933 and applicable state "blue sky" laws and that the Shares will not be disposed of in transactions which, in the opinion of counsel to the Company, would violate the registration provisions of the Securities Act of 1933 and applicable state "blue sky" laws, and the rules and regulations thereunder. The certificate issued to evidence such Shares shall bear appropriate legends summarizing such restrictions on the dispositions thereof. 8. (a) If the Optionee is not an "officer" of the Company (as that term is defined in Rule 16(a)-1(f) promulgated pursuant to the Securities and Exchange Act of 1934, the Optionee may elect to tender Shares to the Company in order to satisfy federal and state withholding tax liability (a "share withholding election"), provided, (i) the Committee shall not have revoked its advance approval of the holder's share withholding election and (ii) the share withholding election is made on or prior to the date on which the amount of withholding tax liability is determined. (b) A share withholding election shall be deemed made when written notice of such election signed by the Optionee, has been delivered or transmitted by registered or certified mail to the Secretary of the Company at its then principal office. Delivery of said notice shall constitute an irrevocable election to have Shares withheld. (c) If the Optionee has made a share withholding election pursuant to this Paragraph 8, the Company shall subtract from the number of Shares deliverable to the Optionee on the date of exercise, the number of Shares having an aggregate fair market value (as determined in good faith by the Committee in its sole discretion) equal to the amount of tax required to be withheld plus cash for any fractional amount. -14- 9. This Agreement shall be construed and enforced in accordance with the laws of the State of New York. Subject to Paragraph 3, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors or assigns, as the case may be. -15- EXHIBIT 4.2 -16- SYMBOL TECHNOLOGIES, INC. 1997 EMPLOYEE STOCK OPTION PLAN (as of May 21, 2001) 1. Purpose. The 1997 Employee Stock Option Plan (the "Plan") of Symbol Technologies, Inc. (the "Company"), a Delaware corporation, is designed to aid the Company and its subsidiaries in retaining and attracting personnel of exceptional ability by enabling key employees to purchase a proprietary interest in the Company, thereby stimulating in such individuals an increased desire to render greater services which will contribute to the continued growth and success of the Company and its subsidiaries. Certain of the options to be granted under the Plan are intended to satisfy the requirement for classification as "Incentive Stock Options" as defined in Section 422A of the Internal Revenue Code 1986, as amended (the "Code"). (An option granted under the Plan which is intended to satisfy the requirements for classification as an Incentive Stock Option shall be referred to herein as a "Plan Incentive Stock Option"). 2. Amount and Source of Stock. The total number of shares of Common Stock, par value $.01 per share (the "Shares"), of the Company which may be the subject of options granted pursuant to the Plan shall not exceed 14,000,000 of the Company's Shares subject to adjustment as provided in paragraph 10. Such Shares may be reserved or made available from the Company's authorized and unissued Shares or from Shares reacquired and held in the Company's treasury. In the event that any option granted hereunder shall terminate prior to its exercise in full for any reason, then the Shares subject to such option shall be added to the Shares otherwise available for issuance pursuant to the exercise of options under the Plan. 3. Administration of Plan. If all of the members of the Board of Directors of the Company (the "Board") are "disinterested persons" as that term is defined in Rule 16b-3(c)(2) (or any successor provision) promulgated under the Securities and Exchange Act of 1934, as amended (the "Exchange Act") ("Disinterested Persons"), then the Plan shall be administered by the Board or, if so designated by resolution of the Board by a committee of the Board comprised of two or more members of the Board, selected by the Board, all of which members shall be "Disinterested Persons" (the "Committee"). If all of the members of the Board are not "Disinterested Persons", then the Board shall designate such a Committee to administer the Plan. (The body which is administering the Plan pursuant to this paragraph shall at times be referred to herein as the "Administrative Body".) The Administrative Body shall have full authority to interpret the Plan, to establish and amend rules and regulations relating to it, to determine the key employees to whom options may be granted under the Plan, to select from among the eligible individuals those to whom options are to be granted, to determine the terms and provisions of the respective option agreements (which need not be identical) and to make all other determinations necessary or advisable for the administration of the Plan. The date on which the Administrative Body adopts resolutions granting an option to a specified individual shall constitute the date of grant of such option (the "Date of Grant"); provided, however, that if the grant of an option is made subject to the occurrence of a subsequent event (such as, for example, the commencement of employment), the date on which such subsequent event occurs shall be the Date of Grant. Such resolutions shall also specify whether the option is or -17- is not intended to qualify as a Plan Incentive Stock Option; provided, however, that in the event no such specification is made in such resolutions, the Administrative Body will be deemed to have specified that such option is not intended to qualify as a Plan Incentive Stock Option; provided further, however, that in the event such specification, whether explicit or implicit, is inconsistent with terms set forth in such resolutions for such option, then such specification shall be deemed of no force and effect, and the Administrative Body will be deemed to have made a specification which is consistent with such terms. The adoption of any such resolution by the majority of the members of the Administrative Body shall complete the necessary corporate action constituting the grant of said option and an offer of Shares for sale to said individual under the Plan. 4. Eligibility. All officers and key employees of the Company or subsidiaries of the Company, as determined by the Administrative Body, shall be eligible to receive options hereunder; provided, however, that no Plan Incentive Stock Option shall be granted hereunder to any person who, together with his spouse, children and trusts and custodial accounts for their benefit, at the time of the grant of such option, owns, within the meaning of Section 425(d) of the Code, Shares constituting more than ten percent (10%) of the total combined voting power of all of the outstanding stock of the Company (a "Ten Percent Shareholder"), unless the Plan Incentive Stock Option granted to the Ten Percent Shareholder satisfies the additional conditions for the options granted to Ten Percent Shareholders set forth in subparagraphs 5(a) and 6(a). For purposes of the Plan, a subsidiary shall mean any corporation of which the Company owns or controls, directly or indirectly, fifty percent (50%) or more of the outstanding shares of stock normally entitled to vote for the election of directors including voting securities issuable upon conversion of another security which is, or may be issuable upon the exercise of any warrant, option or other similar right, and any partnership of which the Company or a corporate subsidiary is a general partner. From time to time the Administrative Body shall, in its sole discretion, within the applicable limits of the Plan, select from among the eligible individuals those persons to whom options shall be granted under the Plan, the number of Shares subject to each option, and the exercise price, terms and conditions of any options to be granted hereunder. 5. Option Price; Maximum Grant. (a) The exercise price for the Shares purchasable under any option granted pursuant to the Plan shall not be less than 100% or, in the case of a Plan Incentive Stock Option granted to a Ten Percent Shareholder, 110% of the fair market value per share of the Shares subject to option under the Plan at the Date of Grant, solely as determined by the Administrative Body in good faith. The exercise price for options granted pursuant to the Plan shall be subject to adjustment as provided in paragraph 10. For purposes of the Plan, the "fair market value per share" of the Shares on a given date shall be: (i) if the Shares are listed on a registered securities exchange or traded on the NASDAQ National Market System, the closing price per share of the Shares on such date (or, if there was no trading in the Shares on such date, on the next preceding day on which there was trading); (ii) if the Shares are not listed on a registered securities exchange or traded on the NASDAQ National Market System but the bid and asked prices per share for the Shares are provided by NASDAQ, the National Quotation Bureau Incorporated or any similar organization, the average of the closing bid and asked price per share of the Shares on such date (or, if there was no trading in the Shares on such date, on the next preceding day on which there was trading) as provided -18- by such organization; and (iii) if the Shares are not listed on a registered securities exchange or traded on the NASDAQ National Market System and the bid and asked prices per share of the Shares are not provided by NASDAQ, the National Quotation Bureau Incorporated or any similar organization, as determined by the Administrative Body in good faith. (b) To the extent necessary for Plan Incentive Stock Options to qualify as Incentive Stock Options, the aggregate fair market value, determined as the Date of Grant, of the Shares subject to options which may first become exercisable by an individual in any calendar year, under this Plan and all other stock option plans of the Company and of any parent or subsidiary of the Company pursuant to which Incentive Stock Options may be granted, shall not exceed $100,000. (c) The maximum number of Shares purchasable under any option or options granted pursuant to the Plan to any one individual in any calendar year shall in no event exceed one percent of the then issued and outstanding shares of Common Stock of the Company. 6. Term of Option. (a) Subject to the provisions of the Plan, the Administrative Body shall have absolute discretion in determining the period during which, the rate at which and the terms and conditions upon which any option granted hereunder may be exercised, and whether any option exercisable in installments is to be exercisable on a cumulative or non-cumulative basis; provided, however, that no option granted hereunder shall be exercisable for a period exceeding ten (10) years or, in the case of a Plan Incentive Stock Option granted to a Ten Percent Shareholder, five (5) years from the Date of Grant. The Administrative Body may, at any time before complete termination of any option granted hereunder, accelerate the time or times at which such option may be exercised in whole or in part. (b) The grant of options by the Administrative Body shall be effective as of the date on which the Administrative Body shall authorize the option; provided, however, that no option granted hereunder shall be exercisable unless and until the holder shall enter into an individual option agreement with the Company that shall set forth the terms and conditions of such option. Each such agreement shall expressly incorporate by reference the provisions of this Plan (a copy of which shall be made available for inspection by the optionee during normal business hours at the principal office of the Company), and shall state that in the event of any inconsistency between the provisions hereof and the provisions of such agreement, the provisions of this Plan shall govern. 7. Exercise of Options. An option shall be exercised when written notice of such exercise, signed by the person entitled to exercise the option, has been delivered or transmitted by registered or certified mail to the Secretary of the Company at its then principal office. Said notice shall specify the number of Shares for which the option is being exercised and shall be accompanied by (i) such documentation, if any, as may be required by the Company as provided in subparagraph 11(b), and (ii) payment of the aggregate option price. Such payment shall be in the form of (i) cash or a certified check (unless such certification is waived by the Company) payable to the order of the Company in the amount of the aggregate option price, (ii) certificates duly endorsed for transfer (with all transfer taxes paid or provided for) evidencing a number of Shares (provided, however, that such -19- Shares have been owned by the Optionee for at least six months) of which the aggregate fair market value on the date of exercise is equal to the aggregate option exercise price of the Shares being purchased, (iii) by delivering to the Company (a) irrevocable instructions to deliver the stock certificates representing the Shares for which the option is being exercised, directly to a broker, and (b) instructions to the broker to sell such Shares and promptly deliver to the Company the portion of the sale proceeds equal to the aggregate option exercise price, or (iv) a combination of these methods of payment. Delivery of said notice shall constitute an irrevocable election to purchase the Shares specified in said notice, and the date on which the Company receives the last of said notice, documentation and the aggregate option exercise price for all of the Shares covered by the notice shall, subject to the provisions of paragraph 11 hereof, be the date as of which the Shares so purchased shall be deemed to have been acquired. The optionee shall not have the right or status as a holder of the Shares to which such exercise relates prior to receipt by the Company of the payment, notice and documentation expressly referred to in this Paragraph 7. 8. Exercise and Cancellation of Options Upon Termination of Employment or Death. Except as set forth below, if an optionee shall voluntarily or involuntarily terminate his service as an employee of the Company or any subsidiary of the Company, any option awarded hereunder shall terminate upon the date of such termination of employment regardless of the expiration date specified in such option. Notwithstanding the foregoing, an option agreement may, at the Administrative Body's discretion, provide that the optionee shall have the right to exercise an option after his employment has terminated for any reason whatsoever, including death, disability or retirement provided, however that the exercise must be accomplished within the term of such option. Furthermore, all option agreements shall provide that if the termination of employment is due to retirement or disability (as defined by the Administrative Body in its sole discretion), the optionee (or his duly appointed guardian or conservator) shall have the privilege of exercising any option that the optionee could have exercised on the day upon which he ceased to be an employee of the Company or any subsidiary of the Company, provided, however, that such exercise must be accomplished within the term of such option and within one (1) year of the date of the termination of the optionee's employment with the Company or any subsidiary of the Company. If the termination of employment is due to the death of the optionee, the duly appointed executor or administrator of his estate shall have the privilege at any time of exercising any option that the optionee could have exercised on the date of his death; provided, however that such exercise must be accomplished within the term of such option and within one (1) year of the optionee's death. For all purposes of the Plan, an approved leave of absence shall not constitute interruption or termination of employment. Nothing contained herein or in any option agreement shall be construed to confer on any optionee any right to be continued in the employ of the Company or any subsidiary of the Company or derogate from any right of the Company or any subsidiary of the Company to retire, request the resignation or discharge of such optionee, or to lay off or require a leave of absence of such optionee (with or without pay), at any time, with or without cause. 9. Transferability of Options. (a) Subject to the provisions of subparagraph 9(b) hereof, options granted under this Plan shall not be transferable except by will or the laws -20- of descent and distribution. Such options shall be exercisable during the optionee's lifetime only by the optionee (or his duly appointed guardian or conservator). (b) The Administrative Body may, in its discretion, authorize the transfer of all or a portion of any options granted hereunder on terms which permit the transfer by the optionee to (i) the spouse, children or grandchildren of the optionee ("Immediate Family Members"), (ii) a trust or trusts for the exclusive benefit of such Immediate Family Members, or (iii) a partnership in which such Immediate Family Members and/or the optionee are the only partners, provided that (a) the optionee shall receive the approval of the Administrative Body prior to such transfer, and such transfer must be limited to the persons or entities listed in this subparagraph 9(b), and (b) subsequent transfers of such transferred options shall be prohibited except in accordance with this Paragraph 9. Following any such transfer, such options shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that for purposes of this plan, the term "optionee" shall be deemed to refer to the transferor. In the event of the termination of the employment of the transferor, the provisions provided herein shall continue to be applicable to the option and shall limit the ability of the transferee to exercise any such transferred options to the same extent they would have limited the optionee. 10. Adjustments Upon Changes in Capitalization. (a) If the outstanding Shares are subdivided, consolidated, increased, decreased, changed into, or exchanged for a different number or kind of shares or other securities of the Company through reorganization, merger, re-capitalization, reclassification, capital adjustment or otherwise, or if the Company shall issue additional Shares as a dividend or pursuant to a stock split, then the number and kind of shares available for issuance pursuant to the exercise of options to be granted under this Plan and all Shares subject to the unexercised portion of any option theretofore granted and the option price of such options shall be adjusted to prevent the inequitable enlargement or dilution of any rights hereunder; provided, however, that any such adjustment in outstanding options under the Plan shall be made without change in the aggregate exercise price applicable to the unexercised portion of any such outstanding option. Distributions to the Company's shareholders consisting of property other than shares of Common Stock of the Company or its successor and distributions to shareholders of rights to subscribe for Common Stock shall not result in the adjustment of the Shares purchasable under outstanding options or the exercise price of outstanding options. Adjustments under this paragraph shall be made by the Administrative Body, whose determination thereof shall be conclusive and binding. Any fractional Share resulting from adjustments pursuant to this paragraph shall be eliminated from any then outstanding option. Nothing contained herein or in any option agreement shall be construed to effect in any way the right or power of the Company to make or become a party to any adjustments, reclassification, reorganizations or changes in its capital or business structure or to merge, consolidate, dissolve, liquidate or otherwise transfer all or any part of its business or assets. (b) If, in the event of a merger or consolidation, the Company is not the surviving corporation, and in the event that the agreements governing such merger or consolidation do not provide for substitution of new options or other rights in lieu of the options granted hereunder or for the express assumption of such outstanding options by the surviving corporation, -21- or in the event of the dissolution or liquidation of the Company, the holder of any option theretofore granted under this Plan shall have the right no less than five (5) days prior to the record date for the determination of shareholders entitled to participate in such merger, consolidation, dissolution or liquidation, to exercise his option, in whole or in part, without regard to any installment provision that may have been made part of the terms and conditions of such option; provided that any conditions precedent to such exercise set forth in any option agreement granted under this Plan, other than the passage of time, shall have been satisfied. In any such event, the Company will mail or cause to be mailed to each holder of an option hereunder a notice specifying the date that is to be fixed as of which all holders of record of Shares shall be entitled to exchange their Shares for securities, cash or other property issuable or deliverable pursuant to such merger, consolidation, dissolution or liquidation. Such notice shall be mailed at least ten (10) days prior to the date therein specified. In the event any then outstanding option is not exercised in its entirety on or prior to the date specified therein, all remaining outstanding options granted hereunder and any and all rights thereunder shall terminate as of said date. 11. General Restrictions. (a) No option granted hereunder shall be exercisable if the Company shall, at any time and in its sole discretion, determine that (i) the listing upon any securities exchange, registration or qualification under any state or federal law of any Shares otherwise deliverable upon such exercise, or (ii) the consent or approval of any regulatory body or the satisfaction of withholding tax or other withholding liabilities, is necessary or appropriate in connection with such exercise. In any of such events, the exercisability of such options shall be suspended and shall not be effective unless and until such withholding, listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to the Company in its sole discretion, notwithstanding any termination of any option or any portion of any option during the period when exercisability has been suspended. (b) The Administrative Body may require, as a condition to the right to exercise an option, that the Company receive from the optionee, at the time of any such exercise, representations, warranties and agreements to the effect that the Shares are being purchased by the optionee without any present intention to sell or otherwise distribute such Shares in violation of the Securities Act of 1933 (the "1933 Act") and that the optionee will not dispose of such Shares in transactions which, in the opinion of counsel to the Company, would violate the registration provisions of the 1933 Act and the rules and regulations thereunder and any applicable "blue sky" laws or regulations. The certificates issued to evidence such Shares shall bear appropriate legends summarizing such restrictions on the disposition thereof. 12. Withholding Tax Liability. (a) An optionee may elect to tender shares to the Company in order to satisfy federal and state withholding tax liability (a "share withholding election"), provided, (i) the Administrative Body shall not have revoked its advance approval of the optionee's share withholding election and (ii) the share withholding election is made on or prior to the date on which the amount of withholding tax liability is determined. Notwithstanding the foregoing, an optionee whose transactions in Common Stock are subject to Section 16(b) of -22- the 1934 Act may make a share withholding election only if said elections also in compliance with the provisions of said Section and the rules and regulations promulgated thereunder. (b) A share withholding election shall be deemed made when written notice of such election, signed by the optionee, has been received by the Secretary of the Company. Delivery of said notice shall constitute an irrevocable election to have Shares so withheld. (c) Upon exercise of an option, the Company shall transfer the total number of Shares so exercised less the number of Shares deliverable, if any, in connection with the share withholding election (which shall be the number of Shares having an aggregate fair market value as provided herein equal to the statutory minimum amount of tax required to be withheld plus cash for any fractional amount.) (d) If an optionee has made a share withholding election, at the same time he may also elect to tender Shares having an aggregate fair market value equal to his estimated incremental tax liability (determined using his marginal federal and state and local tax rates) in excess of the minimum statutory withholding tax liability provided that he has held said Shares for at least six months. 13. Amendment. The Board shall have full authority to amend the Plan; provided, however, that any amendment that (i) increases the number of Shares that may be the subject to stock options granted under the Plan, (ii) expands the class of individuals eligible to receive options under the Plan, (iii) increases the period during which options may be granted or the permissible term of options under the Plan, or (iv) decreases the minimum exercise price of such options, shall only be adopted by the Board subject to shareholder approval. No amendment to the Plan shall, without the consent of the holder of an existing option, materially and adversely affect his rights under any option. 14. Termination. Unless the Plan shall theretofore have been terminated as hereinafter provided, the Plan shall terminate on February 9, 2007 and no options under the Plan shall thereafter be granted, provided, however, the Board at any time may, in its sole discretion, terminate the Plan prior to the foregoing date. No termination of the Plan shall without the consent of the holder of an existing option, materially and adversely affect his rights under such option. -23- EXHIBIT 5(A) -24- November 13, 2001 Symbol Technologies, Inc. One Symbol Plaza Holtsville, New York 11742-1300 Dear Sirs: Symbol Technologies, Inc., a Delaware corporation (the "Company"), intends to transmit for filing with the Securities and Exchange Commission a registration statement under the Securities Act of 1933, as amended on Form S- 8 (the "Registration Statement") which relates to an aggregate of 7,500,000 shares (the "Shares"), of the Company's Common Stock, par value $.01 per share, which are being offered pursuant to the Company's 2001 Non-Executive Stock Option Plan (the "2001 Plan"), and 5,812,500 of which are being offered pursuant to the Company's 1997 Employee Stock Option Plan, as amended (the "1997 Plan"). This opinion is an exhibit to the Registration Statement. I am Executive Vice President, General Counsel and Secretary of the Company. I have acted as counsel to the Company and in such capacity have participated in various corporate and other proceedings taken by or on behalf of the Company in connection with the proposed offer and sale of the Shares referred to above as contemplated by the Registration Statement. I have taken part in the preparation or examined copies (in each case signed, certified or otherwise proven to my satisfaction) of the Company's Certificate of Incorporation, its By-Laws as presently in effect, minutes and other instruments evidencing actions taken by its directors and shareholders, the Registration Statement and exhibits thereto and such other documents and instruments relating to the Company and the proposed offering as I have deemed necessary under the circumstances. Insofar as this opinion relates to securities to be issued in the future, I have assumed that all applicable laws, rules and regulations in effect at the time of such issuance are the same as such laws, rules and regulations in effect as of the date hereof. I note that I am a member of the Bar of the State of New York and that I am not admitted to the Bar of the State of Delaware. To the extent that the opinion expressed herein involves the law of Delaware, my opinion is based -25- Symbol Technologies, Inc. November 13, 2001 Page -2- solely upon my reading of the Delaware General Corporation Law and my review of the Company's certified Certificate of Incorporation. In connection with my rendering of this opinion, I wish to note that, as of November 1, 2001, I own in the aggregate 383,343 shares of the Common Stock of the Company. In addition, I own options to purchase an aggregate of 760,309 shares of Common Stock, (including options to purchase 286,875 shares held by a trust of which I am a co-trustee and a beneficiary). My wife owns 9,225 shares of the Common Stock of the Company and is co-trustee of a trust which owns options to purchase 253,123 shares of Common Stock. I disclaim beneficial ownership of any shares held by my wife or this trust. Subject to and based on the foregoing, it is my opinion that: 1. The Company has been duly incorporated under the laws of the State of Delaware and has an authorized capital stock consisting of 600,000,000 shares of Common Stock, par value $.01 per share and 10,000,000 shares of Preferred Stock, par value $1.00 per share. 2. Subject to the effectiveness of the Registration Statement and compliance with applicable state securities laws, Shares issued upon the valid exercise of options issued pursuant to the 2001 Plan will be duly authorized, legally issued, fully paid and non-assessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and as an exhibit to any filing made by the Company under the securities or "Blue Sky" laws of any state. Very truly yours, /s/ Leonard H. Goldner Leonard H. Goldner Executive Vice President and General Counsel LHG:dac -26- EXHIBIT 23.1 -27- INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Symbol Technologies, Inc. on Form S-8 of our reports dated February 20, 2001, (and February 26, 2001 as to Note 20), and March 23, 2001 appearing in the Annual Report on Form 10-K of Symbol Technologies, Inc. for the year ended December 31, 2000 and in the Annual Report on Form 11-K of the Symbol Technologies, Inc. 1997 Employee Stock Purchase Plan for the year ended December 31, 2000, respectively. /s/Deloitte & Touche LLP Deloitte & Touche LLP New York, New York November 14, 2001 -28- EXHIBIT 23.2 (Included in Exhibit 5(a)) -29- EXHIBIT 24 (See Page 7 of Form S-8) -30- regist\s8plan.doc regist\s8plan-form.doc -----END PRIVACY-ENHANCED MESSAGE-----