-----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, DcrmJQHllJkvZUd3Xa7+NpdBJYJPRlPowEJajbMVe68mNLhFXhSda4v9gbnn+Hu4 nY0j36dol71NKKYNFOMH2Q== 0000950117-96-001104.txt : 19960916 0000950117-96-001104.hdr.sgml : 19960916 ACCESSION NUMBER: 0000950117-96-001104 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960913 EFFECTIVENESS DATE: 19961002 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NAI TECHNOLOGIES INC CENTRAL INDEX KEY: 0000072575 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER TERMINALS [3575] IRS NUMBER: 111798773 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-11993 FILM NUMBER: 96630127 BUSINESS ADDRESS: STREET 1: 2405 TRADE CENTRE AVENUE STREET 2: SUITE 412 CITY: LONGMONT STATE: CO ZIP: 80503 BUSINESS PHONE: 5163644433 MAIL ADDRESS: STREET 1: 1000 WOODBURY ROAD STE 412 STREET 2: 1000 WOODBURY ROAD STE 412 CITY: WOODBURY STATE: NY ZIP: 11797-2530 FORMER COMPANY: FORMER CONFORMED NAME: NORTH ATLANTIC INDUSTRIES INC DATE OF NAME CHANGE: 19920703 S-8 1 NAI TECHNOLOGIES S-8 As filed with the Securities and Exchange Commission on September 13, 1996 Registration No. 333-_______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- NAI TECHNOLOGIES, INC. ----------------------------------------------------------- (Exact name of registrant as specified in its charter) New York 11-1798773 --------------------------------- ---------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 2405 Trade Centre Avenue Longmont, Colorado 80503 --------------------------------- ---------------------- (Address of Principal (Zip Code) Executive Offices) NAI Technologies, Inc. 1996 Stock Option Plan ----------------------------------------------------------- (Full title of the plan) Richard A. Schneider NAI Technologies, Inc. 2405 Trade Centre Avenue Longmont, Colorado 80503 ----------------------------------------------------------- (Name and address of agent for service) (303) 776-5674 ----------------------------------------------------------- (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------- Proposed Proposed Amount maximum maximum of Amount offering aggregate regis- Title of securities to be price offering tration to be registered registered per share(1) price(1) fee - ----------------------------------------------------------------------------------- Common Stock, $.10 par value 400,000 shs. $3.5625 $1,425,000 $491.38 - ----------------------------------------------------------------------------------- - -----------------------------------------------------------------------------------
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the registration fee on the basis of the average of the high and low prices of the Common Stock as reported on The Nasdaq Stock Market on September 10, 1996. PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated in this registration statement (this "Registration Statement") by reference: (a) The Annual Report of NAI Technologies, Inc., a New York corporation (the "Company"), on Form 10-K for the fiscal year ended December 31, 1995; (b)(1) The Company's Quarterly Report on Form 10-Q for the quarterly period ended March 30, 1996; (b)(2) The Company's Quarterly Report on Form 10-Q for the quarterly period ended June 29, 1996; (b)(3) The Company's Current Report on Form 8-K dated February 15, 1996; (b)(4) The Company's Current Report on Form 8-K dated May 9, 1996; and (c) The Company's Registration Statement on Form 10 filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on May 7, 1969 (Registration No. 0982125). All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part of the Registration Statement from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The financial statements and schedules of the Company as of December 31, 1995 and 1994 and for each of the years in the three-year period ended December 31, 1995 have been incorporated by reference herein in reliance upon the reports of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. II-1 The legality of the issuance of the shares of Common Stock being registered by this Registration Statement will be passed upon for the Company by Whitman Breed Abbott & Morgan, New York, New York. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Sections 721 through 726 of the New York Business Corporation Law provide the following with respect to the indemnification of directors, officers and employees: SS. 721. NONEXCLUSIVITY OF STATUTORY PROVISIONS FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS.- The indemnification and advancement of expenses granted pursuant to, or provided by, this article shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or advancement of expenses may be entitled, whether contained in the certificate of incorporation or the by-laws or, when authorized by such certificate of incorporation or by-laws, (i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Nothing contained in this article shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law. SS. 722. AUTHORIZATION FOR INDEMNIFICATION AND OFFICERS. (a) A corporation may indemnify any person made, or threatened to be made, a party to an action or proceeding (other than one by or in the right of the corporation to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, by reason of the fact that he, his testator or intestate, was a director or officer of the corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including II-2 attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful. (b) The termination of any such civil or criminal action or proceeding by judgment, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not in itself create a presumption that any such director or officer did not act, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interest of the corporation or that he had reasonable cause to believe that his conduct was unlawful. (c) A corporation may indemnify any person made, or threatened to be made, a party to an action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of any other corporation of any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys' fees, actually and necessarily incurred by him in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation, except that no indemnification under this paragraph shall be made in respect of (1) a threatened action, or a pending action which is settled or otherwise disposed of, or (2) any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon II-3 application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper. (d) For the purpose of this section, a corporation shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person's duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation. SS. 723. PAYMENT OF INDEMNIFICATION OTHER THAN BY COURT AWARD. (a) A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in section 722 shall be entitled to indemnification as authorized in such section. (b) Except as provided in paragraph (a), any indemnification under section 722 or otherwise permitted by section 721, unless ordered by a court under section 724 (Indemnification of directors and officers by a court) shall be made by the corporation, only if authorized in the specific case: (1) By the board acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in section 722 or established pursuant to section 721, as the case may be, or, (2) If a quorum under subparagraph (1) is not obtainable or, even if obtainable, a quorum of disinterested directors so directs: (A) By the board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set forth in such sections has been met by such director or officer, or II-4 (B) By the shareholders upon a finding that the director or officer has met the applicable standard of conduct set forth in such sections. (c) Expenses incurred in defending a civil or criminal action or proceeding may be paid by the corporation in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount as, and to the extent, required by paragraph (a) of section 725. SS. 724. INDEMNIFICATION OF DIRECTORS AND OFFICERS BY A COURT. (a) Notwithstanding the failure of a corporation to provide indemnification, and despite any contrary resolution of the board or of the shareholders in the specific case under section 723 (Payment of indemnification other than by court award), indemnification shall be awarded by a court to the extent authorized under section 722 (Authorization for indemnification of directors and officers), and paragraph (a) of section 723. Application therefor may be made, in every case, either: (1) In the civil action or proceeding in which the expenses were incurred or other amounts were paid, or (2) To the supreme court in a separate proceeding, in which case the application shall set forth the disposition of any previous application made to any court for the same or similar relief and also reasonable cause for the failure to make application for such relief in the action or proceeding in which the expenses were incurred or other amounts were paid. (b) The application shall be made in such manner and form as may be required by the applicable rules of court or, in the absence thereof, by direction of a court to which it is made. Such application shall be upon notice to the corporation. The court may also direct that notice be given at the expense of the corporation to the shareholders and such other persons as it may designate in such manner as it may require. (c) Where indemnification is sought by judicial action, the court may allow a person such reasonable expenses, including attorneys' fees, during the pendency of the litigation as are necessary in connection with his defense therein, if the court shall find that the defendant has by his pleadings or during II-5 the course of the litigation raised genuine issues of fact or law. SS. 725. OTHER PROVISIONS AFFECTING INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a) All expenses incurred in defending a civil or criminal action or proceeding which are advanced by the corporation under paragraph (c) of section 723 (Payment of indemnification other than by court award) or allowed by a court under paragraph (c) of section 724 (Indemnification of directors and officers by a court) shall be repaid in case the person receiving such advancement or allowance is ultimately found, under the procedure set forth in this article, not to be entitled to indemnification or, where indemnification is granted, to the extent the expenses so advanced by the corporation or allowed by the court exceed the indemnification to which he is entitled. (b) No indemnification, advancement or allowance shall be made under this article in any circumstance where it appears: (1) That the indemnification would be inconsistent with the law of the jurisdiction of incorporation of a foreign corporation which prohibits or otherwise limits such indemnification; (2) That the indemnification would be inconsistent with a provision of the certificate of incorporation, a by-law, a resolution of the board or of the shareholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the threatened or pending action or proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (3) If there has been a settlement approved by the court, that the indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement. (c) If any expenses or other amounts are paid by way of indemnification, otherwise than by court order or action by the shareholders, the corporation shall, not later than the next annual meeting of shareholders unless such meeting is held within three months from the date of such payment, and, in any event, within fifteen months from the date of such payment, mail to II-6 its shareholders of record at the time entitled to vote for the election of directors a statement specifying the persons paid, the amounts paid, and the nature and status at the time of such payment of the litigation or threatened litigation. (d) If any action with respect to indemnification of directors and officers is taken by way of amendment of the by-laws, resolution of directors, or by agreement, then the corporation shall, not later than the next annual meeting of shareholders, unless such meeting is held within three months from the date of such action, and, in any event, within fifteen months from the date of such action, mail to its shareholders of record at the time entitled to vote for the election of directors a statement specifying the action taken. (e) Any notification required to be made pursuant to the foregoing paragraph (c) or (d) of this section by any domestic mutual insurer shall be satisfied by compliance with the corresponding provisions of section one thousand two hundred sixteen of the insurance law. (f) The provisions of this article relating to indemnification of directors and officers and insurance therefor shall apply to domestic corporations and foreign corporations doing business in this state, except as provided in section 1320 (Exemption from certain provisions). SS. 726. INSURANCE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a) Subject to paragraph (b), a corporation shall have power to purchase and maintain insurance: (1) To indemnify the corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this article, and (2) To indemnify directors and officers in instances in which they may be indemnified by the corporation under the provisions of this article, and (3) To indemnify directors and officers in instances in which they may not otherwise be indemnified by the corporation under the provisions of this article provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the superintendent of insurance, for a retention amount and for co-insurance. II-7 (b) No insurance under paragraph (a) may provide for any payment, other than cost of defense, to or on behalf of any director or officer: (1) If a judgment or other final adjudication adverse to the insured director or officer establishes that his acts of active and deliberate dishonesty were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (2) In relation to any risk the insurance of which is prohibited under the insurance law of this state. (c) Insurance under any or all subparagraphs of paragraph (a) may be included in a single contract or supplement thereto. Retrospective rated contracts are prohibited. (d) The corporation shall, within the time and to the persons provided in paragraph (c) of section 725 (Other provisions affecting indemnification of directors or officers), mail a statement in respect of any insurance it has purchased or renewed under this section, specifying the insurance carrier, date of the contract, cost of the insurance, corporate positions insured, and a statement explaining all sums, not previously reported in a statement to shareholders, paid under any indemnification insurance contract. (e) This section is the public policy of this state to spread the risk of corporate management, notwithstanding any other general or special law of this state or of any other jurisdiction including the federal government. Paragraph 15 of the Restated Certificate of Incorporation of the Company provides as follows: The liability to the Corporation and its shareholders of each and every person who is at any time a director of the Corporation, in such person's capacity as such director, is, and shall be, limited and eliminated to the full extent authorized or permitted by law (as now or hereafter in effect). Any repeal or modification of this Paragraph shall not adversely affect any right or protection of any person existing at the time of such repeal or modification. II-8 Section 6.1 of the Amended and Restated By-laws of the Company provides as follows: Section 6.1. Indemnification. To the full extent authorized or permitted by law (as now or hereafter in effect), the Corporation shall indemnify any person who shall at any time be made or be threatened to be made a party to or otherwise involved in any civil or criminal action or proceeding by reason of the fact that such person, or such person's testator or intestate, is or was a director or officer of the Corporation or by reason of the fact that such director or officer, at the request of the Corporation, is or was serving any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, and the Corporation shall pay the expenses incurred by any such person in defending any such action or proceeding as such expenses are incurred, including in advance of the final disposition of such action or proceeding. Nothing contained herein shall affect any rights to indemnification to which employees other than directors and officers may be entitled by law. No amendment or repeal of this Section 6.1 shall apply to or have any effect on any right to indemnification or advancement of expenses provided hereunder with respect to any acts or omissions occurring prior to such amendment or repeal. In furtherance and not in limitation of the powers conferred by statute, the Corporation may enter into agreements providing indemnification to the full extent authorized or permitted by law (as now or hereafter in effect) and including as part thereof provisions with respect to the creation of trust funds, the granting of security interests and the use of other means (including, without limitation, letters of credit, surety bonds and other similar arrangements) to ensure the payment of such amounts as may become necessary to effect indemnification as provided therein or elsewhere. The Company has purchased insurance to indemnify its directors and officers against liabilities incurred as a result of serving in such capacity. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. II-9 ITEM 8. EXHIBITS.
Exhibit Number Exhibit -------- -------- 5 Opinion of Whitman Breed Abbott & Morgan re legality, including consent of such counsel. 23(a) Consent of KPMG Peat Marwick LLP. (b) The consent of Whitman Breed Abbott & Morgan is contained in the opinion filed as Exhibit 5 to this Registration Statement. 24 Power of Attorney (included on page II-13 of this Registration Statement on Form S-8). 99.1 1996 Stock Option Plan.
II-10 ITEM 9. UNDERTAKINGS. (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-11 (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and persons controlling the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-12 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 11th day of September, 1996. NAI TECHNOLOGIES, INC. By /s/Robert A. Carlson --------------------------------- Robert A. Carlson Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert A. Carlson and Richard A. Schneider, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been II-13 signed below by the following persons in the capacities indicated on this 11th day of September, 1996.
Name Title ---- ----- /s/Robert A. Carlson Chairman and Chief Executive - ---------------------------------- Officer (principal executive Robert A. Carlson officer) and Director /s/Richard A. Schneider Executive Vice President, - ---------------------------------- Treasurer, Chief Financial Richard A. Schneider Officer and Secretary (principal financial and accounting officer) and Director Director - ---------------------------------- Stephen Barre Director - ---------------------------------- Edward L. Hennessy /s/Charles S. Holmes Director - ---------------------------------- Charles S. Holmes /s/C. Shelton James Director - ---------------------------------- C. Shelton James Director - ---------------------------------- Dennis McCarthy
II-14 STATEMENT OF DIFFERENCES The section symbol shall be expressed as SS. EX-5 2 EXHIBIT 5 Exhibit 5 Whitman Breed Abbott & Morgan 200 Park Avenue New York, NY 10166 September 13, 1996 NAI Technologies, Inc. 2405 Trade Centre Avenue Longmont, Colorado 80503 Re: NAI Technologies, Inc. ---------------------- Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), filed by NAI Technologies, Inc., a New York corporation (the "Company"), with the Securities and Exchange Commission (the "Commission"). The Registration Statement covers 400,000 shares (the "Shares") of the Company's common stock, par value $.10 per share, to be issued and sold by the Company to key management employees and directors pursuant to the Company's 1996 Stock Option Plan (the "Plan"). We have examined the original, or a photostatic or certified copy, of such records of the Company, certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinion set forth below. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. Based upon our examination mentioned above, subject to the assumptions stated and relying on statements of fact contained in the documents that we have examined, we are of the opinion that the Shares proposed to be issued and sold by the Company have been duly authorized for issuance and that the Shares, when issued to and paid for by the purchasers in accordance with the terms of the Plan, will have been validly issued and will be fully paid and non-assessable. We consent to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the General Rules and Regulations of the Commission. Very truly yours, WHITMAN BREED ABBOTT & MORGAN -2- EX-23 3 EXHIBIT 23(A) Exhibit 23(a) INDEPENDENT AUDITORS CONSENT The Board of Directors NAI Technologies, Inc.: We consent to incorporation by reference in the registration statement on Form S-8 of NAI Technologies, Inc. of our report dated March 1, 1996, relating to the consolidated balance sheets of NAI Technologies, Inc. and subsidiaries as of December 31, 1995, and 1994, and the related consolidated statements of operations, shareholder's equity, and cash flows for each of the years in the three-year period ended December 31, 1995, and related schedule, and to the reference to our firm under the heading 'Experts'. KPMG PEAT MARWICK LLP Boulder, Colorado September 11, 1996 EX-99 4 EXHIBIT 99.1 Exhibit 99.1 NAI TECHNOLOGIES, INC. 1996 STOCK OPTION PLAN 1. PURPOSE. The purpose of the NAI Technologies, Inc. 1996 Stock Option Plan (the "Plan") is to advance the interests of NAI Technologies, Inc. ("NAI") and its subsidiaries and affiliates (all such companies being hereinafter referred to collectively as the "Company") by providing, through the grant of options to purchase shares of NAI common stock, a larger personal and financial interest in the success of the Company to key management employees and directors upon whose judgment, interest and special efforts the Company is largely dependent for the successful conduct of its operations. It is believed that the acquisition of such interests will stimulate the efforts of such key management employees and directors on behalf of the Company and strengthen their desire to remain in the employ of the Company. As used herein, the term "subsidiary" shall mean any corporation of which NAI or another subsidiary owns stock possessing 50% or more of the total combined voting power of all classes of stock, and the term "affiliate" shall mean any entity in which NAI has a significant equity interest or management control as determined by the Board of Directors. 2. ADMINISTRATION. The Plan shall be administered by a committee (the "Committee"), no member of which shall be eligible for options under the Plan, consisting of three members of the Board of Directors of NAI (the "Board"). The Committee shall be constituted in such a manner as to satisfy the requirements of applicable law, the provisions of Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any successor rule. The Committee shall be appointed, and vacancies shall be filled, by the Board. The Committee shall have full power and authority to (i) select the key management employees and directors of the Company to whom options may be granted under the Plan; (ii) determine the number of shares subject to each option and the terms and conditions, not inconsistent with the provisions of the Plan, governing such option; (iii) interpret the Plan and any option granted thereunder; (iv) establish such rules and regulations as it deems appropriate for the administration of the Plan; and (v) take such other action as it deems necessary or desirable for the administration of the Plan. The Committee's interpretation and construction of any provision of the Plan or the terms of any option shall be conclusive and binding on all parties. 3. PARTICIPANTS. Only directors and key management employees of the Company shall be eligible to be granted options under the Plan. Nothing contained in the Plan, or in any option granted pursuant to the Plan, shall confer upon any employee or director any right to the continuation of his employment or directorship. 4. EFFECTIVENESS AND TERMINATION OF THE PLAN. The Plan is effective as of March 11, 1996, the date of its adoption by the Board of Directors, and will terminate on March 11, 2001 or such earlier time as the Board of Directors may determine. Any option outstanding under the Plan at the time of its termination shall remain in effect in accordance with its terms and conditions and those of the Plan. 5. THE SHARES. Options may be granted from time to time under the Plan for the purchase, in the aggregate, of not more than 400,000 shares of common stock, $.10 par value of the Company ("Common Stock") (subject to adjustment pursuant to section 14). Such shares of Common Stock may be set aside out of the authorized but unissued shares of Common Stock not reserved for any other purpose or out of previously issued shares acquired by the Company and held in its treasury. Any shares of Common Stock which, by reason of the termination or expiration of an option or otherwise, are no longer subject to purchase pursuant to an option granted under the Plan, may again be subjected to an option under the Plan. 6. STATUS OF OPTIONS. Options granted under the Plan are nonstatutory options not intended to qualify as incentive stock options under Section 422 of the Internal Revenue Code. 7. OPTION PRICE. The price at which shares of Common Stock may be purchased upon the exercise of an option granted under the Plan shall be the fair market value of such shares on the date of grant of such option. 8. TERM AND EXERCISABILITY OF OPTIONS. Options may be granted for terms of not more than ten years and shall be exercisable in accordance with such terms and conditions as are set forth in the option agreements evidencing the grant of such options. Except as otherwise determined by the Committee pursuant to Section 9, no option granted under the Plan shall be exercisable by a participant during the first year after the date of grant of such option. In no event shall an option be exercised or shares be issued pursuant to an -2- option if any requisite approval or consent of any governmental authority having jurisdiction over the exercise of options or the issue and sale of the Common Stock shall not have been secured. 9. TERMINATION OF EMPLOYMENT. Except as otherwise provided in this Section 9, no person may exercise an option more than 30 days (or such longer period as the Committee may establish) after the first date on which he is neither an employee nor a director of the Company. If a participant ceases to be an employee or director of the Company by reason of death, disability, or an employee's retirement at or after his normal retirement date under the Company's pension plan in which he is a participant, he or his estate may exercise any options held by him within 12 months after the later of the date he ceases to be an employee or the date he ceases to be a director of the Company. Except as otherwise determined by the Committee, options may be exercised following the termination of a participant's employment or directorship with respect only to such number of shares of Common Stock as to which the right of exercise had accrued on or before the last day on which he was either an employee or a director of the Company. In no event may an option be exercised after the expiration of the term of such option. 10. PAYMENT. Full payment of the purchase price for shares of Common Stock purchased upon the exercise, in whole or in part, of an option granted under the Plan shall be made at the time of such exercise. The purchase price may be paid in cash or in shares of Common Stock valued at the fair market value thereof on the date of purchase, or in a combination thereof. Alternatively, an option may be exercised in whole or in part by delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine. No shares of Common Stock shall be issued or transferred to a participant until full payment therefor has been made, and a participant shall have none of the rights of a stockholder until shares are issued or transferred to him. 11. NONTRANSFERABILITY. Options granted under the Plan shall not be transferable other than by will or by the laws of descent and distribution, and, during a participant's lifetime, shall be exercisable only by him. -3- 12. SURRENDER OF OPTIONS. The Committee may require the surrender of outstanding options as a condition to the granting of new options. 13. ISSUANCE OF SHARES. If a participant so requests, shares purchased upon the exercise of an option may be issued or transferred in the name of the participant and another person jointly with the right of survivorship. 14. CHANGES IN CAPITAL STRUCTURE, ETC. In the event of any change in the outstanding Common Stock by reason of any stock dividend, stock split, combination of shares, recapitalization, or other similar change in the capital stock of NAI, or in the event of the merger or consolidation of NAI into or with any other corporation or the reorganization of NAI, the number of shares covered by each outstanding option granted under the Plan, the price per share thereof, and the total number of shares for which options may be granted under the Plan shall be adjusted by the Board in such manner as it determines to be appropriate and equitable. 15. AMENDMENT. The Board may amend the Plan in any respect from time to time; provided, however, that, no amendment shall become effective unless approved by affirmative vote of the Company's shareholders if such approval is necessary for the continued validity of the Plan or if the failure to obtain such approval would adversely affect the compliance of the Plan with Rule 16b-3 under the Exchange Act or any other rule or regulation. No amendment may, without the consent of a participant, impair his rights under any option previously granted under the Plan. The Board shall have the power, in the event of any disposition of substantially all of the assets of the Company, its dissolution, any merger or consolidation of the Company with or into any other corporation, or the merger or consolidation of any other corporation into the Company, to amend all outstanding options to permit their exercise prior to the effectiveness of any such transaction and to terminate such options as of such effectiveness. If the Board shall exercise such power, all options then outstanding shall be deemed to have been amended to permit the exercise thereof in whole or in part by the holder at any time or from time to time as determined by the Board prior to the effectiveness of such transaction and such options shall be deemed to terminate upon such effectiveness. 16. LEGAL AND REGULATORY REQUIREMENTS. No option shall be exercisable and no shares will be delivered under the Plan except in compliance with all applicable federal and state laws and regulations including, without -4- limitation, compliance with withholding tax requirements and with the rules of all domestic stock exchanges on which the Common Stock may be listed. Any share certificate issued to evidence shares for which an option is exercised may bear such legends and statements as the Committee shall deem advisable to assure compliance with federal and state laws and regulations. No option shall be exercisable, and no shares will be delivered under the Plan, until the Company has obtained consent or approval from regulatory bodies, federal or state, having jurisdiction over such matters as the Committee may deem advisable. In the case of the exercise of an option by a person or estate acquiring the right to exercise the option by bequest or inheritance, the Committee may require reasonable evidence as to the ownership of the option and may require consents and releases of taxing authorities that it may deem advisable. -5- -----END PRIVACY-ENHANCED MESSAGE-----